Kidd v. State

292 Ga. 259

736 S.E.2d 377

KIDD

v.The STATE.

No. S12A1521.

Supreme Court of Georgia.

Jan. 7, 2013.

Barbara Barnett Claridge, Claridge Law Firm, Augusta, for appellant.

Charles R. Sheppard, Asst. Dist. Atty., Rebecca Ashley Wright, Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Kenneth Wesley Mishoe, Asst. Atty. Gen., Department of Law, for appellee.

BENHAM, Justice.

Appellant Michael Kidd appeals his convictions for murder and possession of a firearm during the commission of a crime stemming from the shooting death of Ronald Davenport.¹ Finding no error, we affirm.

1. Viewed in a light supporting the jury's verdict, the evidence at trial showed that in August 1999, appellant went looking for and threatened to kill the victim because the victim had assaulted appellant's sister who was the victim's ex-girlfriend. On September 17, 1999, the victim, his current girlfriend and her infant were driving together on a road in Richmond County, when a white Ford Taurus began following them. The victim pulled off the road into a parking lot and the white car pulled up and parked behind the victim's car. The victim exited his car and appellant emerged from the white car. A witness testified that he saw something shiny in appellant's hand and heard the victim ask appellant whether appellant had a gun. The two men exchanged words and then engaged in a fight in which they were closely locked together. Two witnesses testified that they heard three gunshots and saw the victim stagger to the ground. The victim's girlfriend testified that she saw a gun in appellant's hand and that there were two gunshots—one shot that went off while the two men were struggling and another shot which appellant fired while pointing the gun at the prone victim. All eyewitnesses to the shooting testified that the victim was unarmed. After the shooting, appellant fled the scene in his car and admittedly threw the gun away on the side of the road. The gun was not recovered.

The autopsy report showed that the victim had bullet wounds to his back, left thigh and left forearm. The bullet to the victim's back was fatal as it pierced his left lung and his heart causing internal hemorrhaging leading to his death. The authorities recovered two .380 caliber shell casings and one projectile from the scene; and recovered one projectile from the victim's body. A firearms expert testified that the two casings were discharged from the same unknown type of gun and that the two projectiles had been shot from the same .380 caliber weapon. The firearms examiner also testified that the fatal shot to the back was at close range and the shot to the leg was discharged at a distance of two to three feet from the victim.

The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant alleges the trial court erred when, over appellant's objection, it allowed the State to bolster the testimony of two witnesses by using their prior consistent and sworn statements. A witness's prior consistent statement is admissible if the veracity of the witness's trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination. Williams v. State, 289 Ga. 672(2), 715 S.E.2d 76 (2011) (citing Woodard v. State, 269 Ga. 317(2), 496 S.E.2d 896 (1998)); Broner v. State, 284 Ga. 402(2), 667 S.E.2d 613 (2008). A witness's veracity is placed in issue if “affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Duggan v. State, 285 Ga. 363(2), 677 S.E.2d 92 (2009); Pate v. State, 315 Ga.App. 205(1), 726 S.E.2d 691 (2012). For the prior consistent statement to be admissible, it must also predate the alleged fabrication, improper influence, or improper motive. Id.

At trial, Stephanie Fallen, the victim's cousin, testified that appellant approached her in August 1999 looking for the victim and threatening to kill the victim. The record shows that on cross-examination, appellant challenged Fallen's veracity by posing questions that suggested she had been dishonest about how long she had known appellant and about whether appellant knew she was the victim's cousin. Thomas Reynolds was an eyewitness to the shooting of the victim and testified on direct examination that he saw something shiny in appellant's hand when he and the victim began to fight, but did not know what the shiny object was. Reynolds also stated that he heard three gunshots in quick succession and that the gunshots sounded as if they were fired from a small caliber weapon. On cross-examination, defense counsel similarly challenged Reynolds's veracity by posing questions that suggested Reynolds had previously stated that he saw a gun in appellant's hand and that the gunshots he heard were muffled. Defense counsel's questions implied that Reynolds's trial testimony was recently fabricated. In both instances, the State, on re-direct, used the witnesses's prior sworn statements to rehabilitate their trial testimony. Under these circumstances, the trial court did not abuse its discretion in allowing the admission of the prior consistent statements.

3. Appellant alleges the trial court erred by failing to give a charge on accident. We disagree. A trial court need not give a jury charge that is not supported by the evidence. See Reese v. State, 289 Ga. 446(2), 711 S.E.2d 717 (2011). In this case, there was no evidence that Appellant shot the victim by accident. The evidence...