Kilgore v. State
295 Ga. 729
| Ga. | 2014Background
- On Oct. 19, 2008, Gary Kilgore and two co-defendants robbed a Riverdale video store; Kilgore shot and killed the owner, Souphoth Thammavongsa. Several victims were threatened and some were robbed; co-defendants received varying convictions.
- Victim identifications and cell-phone records placing Kilgore’s phone near the scene around the time of the crimes were introduced at trial; a records custodian testified about the phone records and a list of the company’s towers.
- Kilgore was convicted of malice murder, multiple armed robberies, aggravated assaults, and related firearm offenses; he challenged evidentiary rulings on appeal.
- Procedural history: initial motion for new trial was untimely and denied; trial court later granted leave to file an out-of-time motion; after denial on the merits Kilgore timely appealed to the Georgia Supreme Court.
- The sole appellate issue was whether the trial court abused its discretion by admitting cell-phone records and testimony under the business-records exception to the hearsay rule.
Issues
| Issue | Kilgore’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility of cell-phone records under business-records exception | Foundation inadequate because custodian could not recall precise start date for tower list; therefore records unreliable | Custodian testified records were made in regular course, covered dates at issue, and deficiencies go to weight not admissibility | Trial court did not abuse discretion; records admissible under business-records exception |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
- Hurst v. State, 285 Ga. 294 (2009) (trial-court discretion admitting cell-phone records under business-records exception)
- Santana v. State, 283 Ga. App. 696 (2007) (upholding admission of cell-phone records under OCGA § 24-3-14)
- Suarez v. Suarez, 257 Ga. 102 (foundation requirement for business records)
- Tolver v. State, 269 Ga. 530 (party must specify deficient foundation elements to challenge business records)
- Malcolm v. State, 263 Ga. 369 (merger/vacatur of counts by operation of law)
- Washington v. State, 276 Ga. 655 (procedures for filing out-of-time motions for new trial)