McGarity v. StateMcGarity v. State
Appellant Chanze Labron McGarity was convicted of malice murder and other crimes in connection with the shooting death of James Hendon.1 On appeal, Appellant contends that the trial court
1. The evidence presented at trial showed the following.2 On the evening of November 16, 2013, Hendon was shot and killed in
At trial, Jeffrey Berry, who described himself as a friend of Appellant, testified that on the evening of the shooting he was at Mr. G‘s when Appellant and Eddie Head, another friend, entered the store, arguing. At some point thereafter, Berry exited the store and saw Appellant, Head, and a third friend, Steve White, arguing. Berry “just kind of fell back, just waited off to the side.” Appellant walked up closer to Berry, and Head and White were still standing together, “arguing a little bit.” Then Hendon walked by “kind of close towards” Appellant, prompting Appellant to say, “Hey, what‘s wrong with you? There‘s things going on here.” Hendon turned around and replied, “Excuse me?” Appellant turned and slapped Hendon in the face, and Hendon “went down.” Hendon appeared to be preparing to defend himself, “[a]nd then the next thing you know
Berry described the gun Appellant had that night as a dark-colored gun and testified that he had known Appellant to carry a nine-millimeter gun. In addition, Berry testified that he had seen Appellant on one occasion after the shooting “at church.” They exchanged greetings, and Appellant told Berry to “tell them folks that [Head] shot that guy.” Appellant offered, in exchange, to help find someone to cosign on a loan with Berry.
Head testified that on the night of the shooting, he walked up the street to Mr. G‘s from a nearby apartment complex, Merchants Court, to purchase cigarettes. As soon as he exited the store, Appellant hit him in the face, and Head stumbled to the ground. Head testified that, when he got up to defend himself, Appellant pressed a black gun into his abdomen, and Head backed up. White, an acquaintance, walked up to help, telling Head to calm down. Head and White walked away and stood “a little ways from the
White testified that, on the night of the shooting, he was leaving his girlfriend‘s apartment at Merchants Court to walk to Mr. G‘s when he encountered Appellant. White‘s friend, Autumn Barner, was leaving the apartment complex at the same time and offered them a ride. When they arrived at the shopping plaza where Mr. G‘s was located, the men exited the car. Head was walking out of the store, and Appellant and Head started fighting. White broke up the fight, told Appellant to go into the store, and walked away with Head. As they walked, Head kept “telling [White] to turn around,” but White continued walking away to avoid further conflict. White then heard a “pop” and turned to see Appellant running away with what White believed was a gun. In response to
Two additional witnesses, both cousins of Appellant, testified that they saw Appellant at Mr. G‘s just prior to the shooting. Both witnesses had left the store by the time of the shooting, though both were close enough to hear the gunshot.
Victoria Thompson, White‘s girlfriend, testified that on the night of the shooting, White returned to her apartment from the store, shaken. White told Thompson that Appellant and Head had “got into it” and that, while White was trying to break up the fight, he heard a gunshot behind him.
Ty McClarity, Thompson‘s roommate and Appellant‘s girlfriend at the time, testified that Appellant had been at her apartment in Merchants Court on the day of the shooting when she left for work. When she returned home that night, White was “pacing” in the breezeway outside her apartment, saying “I don‘t know why bro did that,” which she interpreted to mean that
Vivian Washington, a friend of Appellant, testified that, on the day after the shooting, Appellant called to ask her to pick him up, and he stayed overnight at her apartment. The next day, Washington purchased nine-millimeter bullets for Appellant at his request. The following night, Appellant arrived at Washington‘s apartment unannounced and went to rest in her bedroom. Law enforcement officers arrived shortly thereafter and arrested Appellant. Washington consented to a search of her apartment, where officers found a black nine-millimeter handgun in Washington‘s bedroom. Washington testified that the gun was not hers and that she assumed it belonged to Appellant. Testing later confirmed that the bullet recovered from Hendon‘s body during his autopsy was fired from the gun recovered at Washington‘s apartment, and DNA obtained from the gun was matched to Appellant.
Appellant does not challenge the legal sufficiency of the
2. Appellant contends that the trial court erred by limiting Appellant‘s cross-examinations of White and Berry about their prior convictions, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, Appellant contends that the limitations on his cross-examination hampered his ability to explore “[t]he relationship of these witnesses, the possibility of gang affiliation, [and] the circumstances of [the witnesses‘] drug convictions,” which were, he claims, relevant to his defense. We discern no merit in this contention.
Prior to trial, the State filed a motion in limine requesting that the trial court limit the defense‘s cross-examination with respect to the details of certain witnesses’ prior convictions. The State argued that only the offenses charged and their time and place should be admissible. In response, defense counsel argued that information regarding these crimes “might be relevant to [the defense‘s] theory of the case” and requested that the trial court defer ruling until the
At trial, White testified on direct examination that he had previously been convicted of aggravated assault, possession of a firearm during the commission of a felony, theft by receiving, and violation of the Georgia Controlled Substances Act. Similarly, Berry testified on direct examination as to his prior convictions for theft by receiving, violation of the Georgia Controlled Substances Act, escape, and financial transactions fraud. Defense counsel did not seek to elicit any additional information regarding the prior convictions while cross-examining either witness. Nor did the defense seek to revisit this issue with the trial court at any point during the trial. Defense counsel did, however, elicit that White was
To obtain ordinary appellate review of a trial court‘s ruling excluding evidence, “the substance of the evidence [must have been] made known to the court by an offer of proof or [been] apparent from the context[.]”
To establish plain error, Appellant must show that
(1) the error was not affirmatively waived by the appellant; (2) the error is “clear or obvious, rather than subject to reasonable dispute“; (3) the error “affected the appellant‘s substantial rights“; and (4) “the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
Williams, 302 Ga. at 151-152 (citation omitted). “Satisfying all four prongs of this standard is difficult, as it should be.” Walker, 301 Ga. at 485 (citation and punctuation omitted). Meeting this standard is all the more difficult where error is asserted based on the exclusion of evidence that the proponent has failed to specifically identify. See id. at 488 (explaining that the appellant‘s “failure to make the evidence known to the court . . . all but dooms his claim under plain error review“). Indeed, the failure to do so
makes it impossible to determine that the [evidence at issue] would have been admissible at trial, much less that [its] admissibility was so clear or obvious as to be beyond reasonable dispute. Likewise, without informing [this Court] what the [evidence would show], Appellant cannot meet his burden to show that there is a reasonable probability that, but for [its] exclusion at trial, the outcome would have been more favorable to him.
Id. (citations and punctuation omitted). Accordingly, Appellant has demonstrated no error – plain or otherwise – with regard to this issue. See Parker v. State, 309 Ga. 736, 743-744 (4) (848 SE2d 117) (2020) (where appellant failed to apprise trial court of substance of
3. Appellant also contends that the trial court erred by allowing Captain William Gorman of the Dallas Police Department to testify as to the statements made to him by Head, White, and Barner on the day after the shooting. Appellant asserts that the prior statements improperly bolstered the credibility of these three witnesses. The State contends that Captain Gorman‘s testimony was admissible as evidence of prior consistent statements to rebut the defense‘s attacks on these witnesses’ credibility and that, even if this testimony should not have been admitted, the error was harmless. We review the trial court‘s rulings on the admission of evidence for an abuse of discretion. See Bridgewater v. State, 309 Ga. 882, 886 (2) (848 SE2d 865) (2020).
Under our current Evidence Code,
An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a . . . prior consistent statement under Code Section 24-6-613 or is otherwise
admissible under this chapter.
In enacting
A prior consistent statement shall be admissible to
rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness‘s credibility. A general attack on a witness‘s credibility with evidence [pertaining to character or prior criminal convictions] shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.
Here, during the State‘s case-in-chief, the State called Captain Gorman to testify about his investigation of the case. In detailing the chronology of his investigation, Captain Gorman testified, over objection, about interviews he had conducted on the day after the shooting with various witnesses, including Head, White, and Barner. All three of these witnesses had already testified. These witnesses’ day-after statements, as recounted by Captain Gorman, were largely consistent with their trial testimony.
On cross-examination, all three witnesses were questioned by defense counsel in a manner designed to elicit that they were acquainted with one another as fellow residents at Merchants Court and that they had communicated among themselves prior to giving their day-after statements. The clear implication of this line of questioning was that these witnesses had “huddled up” to spin a narrative implicating Appellant as the shooter. Head and White
Appellant contends that these witnesses’ day-after statements were improperly admitted under Cowart and
The analysis with regard to Head‘s and White‘s day-after
Whether such an additional possible theory of impeachment makes a difference under Georgia‘s expanded parameters of admissibility for prior consistent statements is a question that the parties have not addressed. Nor is there any indication that the trial court relied on such an unargued theory, rather than the traditional charge-of-fabrication theory, in admitting any of the prior consistent
“The improper admission of bolstering evidence is a non-constitutional, evidentiary error.” Cowart, 294 Ga. at 341. Thus, to determine whether such error requires reversal, we must determine whether it is highly probable that the error did not contribute to the jury‘s guilty verdicts. See Davenport v. State, 309 Ga. 385, 389 (2) (846 SE2d 83) (2020). Where improper bolstering has occurred, this determination must be made without reliance on the testimony that was improperly bolstered, “as the very nature of the error . . . is that it is repetitive of that to which the witness has already testified.” Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009) (citation and punctuation omitted). Instead, “we must consider factors such as whether the [S]tate‘s case was based primarily on the bolstered testimony, and whether the improper bolstering added critical weight to that testimony.” Silvey v. State, 335 Ga. App. 383, 391 (2) (a) (780 SE2d 708) (2015) (citation and punctuation omitted). See, e.g., Cowart, 294 Ga. at 342-343 (improper bolstering was harmless as to one defendant because of the strength of the evidence against him apart from bolstered testimony, but not harmless as to
Here, most of the State‘s case did not rest primarily on the testimony of Barner, Head, or White. Barner was a secondary witness who testified that she neither saw nor heard the shooting. Though both Head and White were significant witnesses, there was ample evidence independent of their testimony to support the jury‘s verdicts on all the counts involving Hendon‘s murder. Berry gave a firsthand account describing Appellant hitting and then shooting Hendon. Appellant‘s girlfriend McClarity testified that she returned to Merchants Court after the shooting to find White “pacing” outside her apartment and making remarks that she interpreted as meaning Appellant “had did something“; she also testified that Appellant never returned to her apartment after the shooting. Appellant‘s own cousins placed Appellant at the scene minutes before the shooting. Washington testified that she purchased nine-millimeter bullets for Appellant at his request the day after the shooting. Most significantly, at the time of Appellant‘s
The same cannot be said, however, for the two counts involving Appellant‘s confrontation with Head. While other witnesses testified that Appellant and Head were involved in an argument, the only evidence that Appellant hit Head, which was the basis for the simple battery verdict, or placed a gun against his abdomen, which was the basis for the reckless conduct verdict, was the testimony of
4. In his final enumeration, Appellant contends that the trial court erred in permitting Deborah Harlow, the GBI forensic biologist who collected the DNA sample from the murder weapon, to refresh her recollection about the firearm‘s chain of custody with a document that was not produced to the defense before trial. Appellant has failed to establish error in this regard.
The record reflects that Harlow was called to testify only as to the process by which she collected the DNA sample from the gun and not as to the actual testing of the sample, which was conducted by a different witness. Prior to explaining that process, Harlow was asked about the crime lab‘s procedures for the intake of evidence and documentation of chain of custody. When questioned about the chain of custody of the gun recovered in this case, Harlow referred
Claiming that the report Harlow referred to at trial “differs from a similar report received by defense counsel,” Appellant asserts some violation on the State‘s part that, he claims, has prejudiced his ability to “verify the chain of custody” of the DNA evidence. To the
Judgment affirmed in part and reversed in part. All the Justices concur.