Brown v. State

314 Ga. 193

875 S.E.2d 784

BROWN

v.STATE.

S22A0603

Supreme Court of Georgia.

Decided: June 30, 2022

Larry Michael Johnson, 408 West Washington Avenue, Nashville, Georgia 31639, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Eric Christopher Peters, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Chase Landon Studstill, District Attorney, Alapaha Judicial Circuit District Attorney's Office, PO Box 158, Nashville, Georgia 31639, for Appellee.

LaGrua, Justice.

At a trial in August 2016, a Berrien County jury found Appellant Kelvin Brown guilty of malice murder and other crimes related to the shooting death of Cornelius Miller. He now appeals, contending that: (1) the evidence was insufficient to support his convictions; (2) the prosecutor failed to lay a proper foundation before the trial court allowed him to treat witness Tyeesha Gray as a hostile witness; and (3) the trial court erred in allowing two witnesses to testify despite lacking personal knowledge about the shooting. For the reasons that follow, we see no error and therefore affirm.¹

Viewed in the light most favorable to the jury's verdicts, the evidence at trial showed that at approximately 2:00 a.m. on March 15, 2014, Officer Kevin Purvis of the Nashville Police Department heard people shouting for assistance. Officer Purvis arrived at the parking lot of Guthrie Motors in Nashville, where he saw Miller lying face down, still breathing, with blood on his body. Officer Purvis called for police assistance and an ambulance and began to manage the crowd that had gathered. Eventually, additional officers arrived to assist, including Chief of Police Kenneth Eaton.

Chief Eaton testified that when he arrived, he acted as crowd control in an attempt to secure the crime scene. During this time, witness Tyeesha Gray "continued to be loud in the crowd." Chief Eaton put Tyeesha in the back of Officer Purvis's patrol car because "she was being loud and really causing more of a scene than anyone else at that time." Shortly thereafter, EMS personnel arrived, and Miller was taken to the Berrien County emergency room, where he died.

Detective Fred Busbin interviewed Tyeesha at the crime scene, and she told him that she saw Appellant shoot Miller. Detective Busbin later obtained a security camera recording from the owner of Guthrie Motors. The video recording, which was played for the jury, showed a man running towards Guthrie Motors in a "zigzag pattern," from the Blue Club,² which was down the street. The man then collapsed between two vehicles in the parking lot of Guthrie Motors. After reviewing the video recording, Detective Busbin re-interviewed Tyeesha and interviewed her twin sister, Nyeesha, at the police department. He testified that Tyeesha gave him the same account as what she recounted at the crime scene.³ Detective Busbin then sought and obtained an arrest warrant for Appellant.

Later, Detective Busbin received a phone call from Sherry Keefe, the mother of Appellant's girlfriend, Amanda Ballard. Keefe told Detective Busbin that Ballard was with Appellant at their home on the night after the shooting, that Ballard was obtaining a change of clothes for Appellant, and that Ballard was planning to take Appellant somewhere to hide. In a second, later phone call, Keefe told Detective Busbin that Ballard was on her way to Cecil, Georgia to check on Appellant. Through Keefe, Detective Busbin obtained cell phone numbers for Ballard and Appellant. Detective Busbin asked Berrien County 911 dispatchers to "ping" the phone numbers,⁴ which told Detective Busbin where the phones were approximately located. Law enforcement officers called hotels in the area of the phones’ location and discovered that Ballard had rented a room at a motel in Cecil on the night of March 14 (the night after the shooting). Detective Busbin and other law enforcement officers surveilled the motel and arrested Appellant on Monday, March 16 around 2:30 a.m. There were no weapons found in the hotel room.

The medical examiner testified that Miller died from a gunshot wound to his chest. A .38-caliber bullet recovered from Miller's body was submitted to a firearms expert, who testified that the bullet was consistent with being fired from a "Smith & Wesson .357 Sig pistol." Crime scene investigators recovered 12 shell casings from the scene, and the firearms expert testified that the casings were consistent with being fired from the same type of gun. The police did not recover the firearm used in the murder.

At trial, Roanda Scott testified that he was sitting in his car in the Blue Club's parking lot when he saw Appellant walk past while holding a handgun in his right hand. Scott heard multiple gunshots, then saw Appellant walk back past Scott's vehicle again still holding a gun. Scott left, called 911, and was later interviewed by Detective Busbin. According to Detective Busbin, Scott recounted that he saw Appellant "come by with a gun, saw him shoot Cornelius Miller, that [Appellant] ran one way, [and] Miller ran the other way."

Ballard testified that after the crime, Appellant called her and stated that "he had killed Prick." Ballard also received a text message from a number associated with Appellant that said he had "killed somebody and he needed [Ballard] to come get him." Ballard picked up Appellant and took him to retrieve money from some friends. According to Ballard, Appellant needed the money in order to "get a bus and get out of town" because "he killed a person, Prick." Ballard then took Appellant to a motel in Cecil, where she rented a room under her name and stayed with him. While at the motel room, Appellant admitted to Ballard that he shot Miller because Miller had called him a "pu**y a** ni**a," which embarrassed him. Appellant also told Ballard that he "[got] rid of the gun and that it would never be found."

The Gray sisters both testified at trial, but they each asserted that parts of their recollection of the events were based on hearsay. Tyeesha testified that she was present at the Blue Club on the night of the shooting and saw Miller get shot. Prompted by leading questions, she also testified that she told police that she saw Appellant shoot someone named "Prick."⁵ Nyeesha testified that she saw Miller at the Blue Club on the night of the shooting and as she was leaving the club, she heard multiple gunshots. Nyeesha further testified that, after the shooting, she went to the Nashville Police Department and told officers that she saw Appellant shoot Miller.

1. Appellant contends that the evidence was insufficient, given that the Gray sisters’ testimony was ostensibly based on hearsay and Scott's testimony did not reflect that the gun Scott saw Appellant carrying was in fact the murder weapon. Accordingly, Appellant argues, the State's entire case was based on circumstantial evidence, which failed to rule out the possibility that someone else was the shooter. See OCGA § 24-14-6. We disagree.

When evaluating the sufficiency of the evidence as a matter of federal due process under the Fourteenth Amendment to the United States Constitution, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Further, under Georgia statutory law, "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-14-6. However, if there is any direct evidence presented by the State, the circumstantial evidence statute does not apply in a sufficiency analysis. See Jackson v. State , 310 Ga. 224, 228 (2) (b), 850 S.E.2d 131 (2020).

Here, the State did not rely solely on circumstantial evidence. Appellant fails to account for the direct evidence in the form of Ballard's testimony saying that Appellant confessed on multiple occasions to shooting Miller in response to being embarrassed. See Eggleston v. State , 309 Ga. 888, 891, 848 S.E.2d 853 (2020) (appellant's confession to former cellmate was direct evidence of guilt). Additionally, as discussed in Division 3 below, the testimony from the Gray sisters that they told police officers that they saw Appellant shoot Miller was not based on hearsay but also direct evidence of Appellant's guilt.

This direct evidence must be considered along with the circumstantial evidence, including Scott's testimony about seeing Appellant with a gun shortly before and after hearing gunshots at the Blue Club; Detective Busbin's testimony about how Keefe heard about Ballard's plans to get a change of clothes for Appellant and take him somewhere to hide; and Ballard's testimony that Appellant confessed to disposing of his gun after the shooting so that it "would never be found" and that he sought to obtain money from friends in order to "get a bus and get out of town." Taken together in the light most favorable to the verdicts, we conclude that the evidence was more than sufficient to support Appellant's convictions. See Jackson , 44 U.S. at 319 (III), 99 S.Ct. 2781. This enumeration fails.

2. Appellant next contends that the trial court abused its discretion in allowing the State to treat Tyeesha as a hostile witness. We disagree.

Under OCGA § 24-6-611 (c), "[l]eading questions shall not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony." However, "[w]hen a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." Id. We review the trial court's decision to allow leading questions for an abuse of discretion. See Merritt v. State , 310 Ga. 433,...