In the Supreme Court of Georgia



                                                      Decided: October 6, 2014


               S14A0800. RICKEY BROWN v. THE STATE.
               S14A0801. MECCO MCKINNEY v. THE STATE.


       NAHMIAS, Justice.

       Rickey Brown and Mecco McKinney appeal their convictions for murder

and a firearm offense related to a gun fight between them and co-indictee Teon

Richardson that resulted in the death of an innocent bystander, four-year-old

Sedriana Rosser. Finding no reversible error as to any of the many claims raised

by one or both of the Appellants, we affirm in both cases.1
       1
          The victim was killed on March 17, 2004. On August 5, 2005, a Fulton County grand jury
indicted Brown, McKinney, and Richardson for malice murder, two counts of felony murder (based
on possession of a firearm by a convicted felon and aggravated assault), aggravated assault with a
deadly weapon, possession of a firearm by a convicted felon, and possession of a firearm during the
commission of a felony. Brown and McKinney were tried together from May 2 to 15, 2006. The
jury found them both guilty of all the charges except malice murder, for which they were found
guilty of the lesser included offense of voluntary manslaughter. On June 30, 2006, the trial court
entered an order sentencing both Brown and McKinney to serve life in prison for felony murder
based on possession of a firearm by a convicted felon and five consecutive years for possession of
a firearm during the commission of a felony. The other guilty verdicts were vacated by operation
of law or merged into the felony murder conviction. Richardson was tried from June 26 to July 6,
2006, and was acquitted on all charges. Brown filed a timely motion for new trial, which he then
amended three times after being appointed new counsel. McKinney, who is still represented by his
trial counsel, filed a timely motion for new trial and then amended it twice. After holding a hearing
on both motions, the trial court denied them on July 11, 2013. Brown and McKinney filed timely
notices of appeal, and the two related cases were docketed in this Court for the April 2014 Term and
submitted for decision on the briefs.
      1.    Viewed in the light most favorable to their verdicts, the evidence

presented at trial showed the following. About three weeks before the shooting

at issue here, Brown, McKinney, and Richardson got into a physical fight

because Brown and McKinney believed Richardson had stolen something from

them. Richardson also left a voice-mail on another person’s phone threatening

to kill Brown and McKinney with his TEC-9 gun. On March 17, 2004,

Richardson was walking around the Jonesboro South apartment complex trying

to sell a TEC-9, which he had attached to a string around his neck. When

Brown and McKinney, who were giving two women a ride to the apartment

complex, arrived in the parking lot, the three men spotted each other, drew their

guns, and opened fire. Brown and McKinney got out of the car, and Richardson

ran towards an occupied area of the complex and took cover in Cheryl Jackson’s

apartment. One of the shots struck and killed the victim child, who was outside

playing. Brown and McKinney then drove away; when Richardson left

Jackson’s apartment, he was apprehended by Jonesboro South residents and held

until the police arrived.

        At Appellants’ trial, eight eyewitnesses testified about the exchange

between Brown, McKinney, and Richardson. The accounts varied considerably,

                                        2
both from witness to witness and within some of the witnesses’ testimony,

regarding which of the three men had guns, who drew his gun first, and who

actually fired his gun. Some of the testimony indicated that Brown and

McKinney both had guns and both fired, and three of the witnesses testified that

Brown and McKinney drew their guns first. The other five witnesses said that

Richardson pointed his gun first, but only two of them believed that Richardson

was actually able to shoot his gun. The police also found unfired bullets from

a TEC-9 at the crime scene, which indicated that although he tried to shoot,

Richardson’s gun would not fire. Brown, McKinney, and Richardson did not

testify. The jury was charged on self-defense justification, but rejected that

defense and found Brown and McKinney guilty.

      Neither Appellant challenges the legal sufficiency of the evidence.

Nevertheless, in accordance with this Court’s practice in murder cases, we have

reviewed the record and conclude that the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find Brown and

McKinney guilty beyond a reasonable doubt of the crimes for which they were

convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It

                                       3
was for the jury to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.’” (citation omitted)).

      2.    Before trial, McKinney filed a special demurrer to the indictment,

arguing that it contained prejudicial surplusage in Counts 2, 6, and 7 and that its

reference to his alleged alias was impermissible bad character evidence. The

trial court denied the special demurrer, and we see no error in that ruling.

      Count 2 of the indictment, which charged felony murder based on

possession of a firearm by a convicted felon, alleged that McKinney, Brown,

and Richardson caused the death of the victim “by engaging in a gun battle with

each other which caused Sedriana Rosser to be shot and killed in the crossfire.”

Count 6, which charged felony murder based on aggravated assault, alleged that

the victim was killed “in the crossfire.” And Count 7, which charged aggravated

assault, included another allegation that there was a “gun battle.” McKinney

contends that these allegations were prejudicial surplusage. However, “mere

surplusage does not vitiate an otherwise valid indictment.” Malloy v. State, 293

Ga. 350, 360 (744 SE2d 778) (2013). The language to which McKinney objects

was permissible because the references to the “gun battle” and “crossfire”



                                         4
“accurately described the offenses charged and made the charges more easily

understood” by the defendants and the jury. Id.

      The caption of the indictment referred to McKinney as “Mecco McKinney

aka Jesse Chester,” but during the trial, no witness identified McKinney by that

alias, and there was no other evidence presented that he had used that name.

Nevertheless, this Court explained long ago that while

      the appearance of an alias in an indictment might reflect
      unfavorably on the accused, it is the settled law of this State that the
      grand jury may so indict the accused, either when he is known by
      different names or when the grand jury is uncertain as to which of
      a number of names is his true name. The purpose of giving the
      name is to identify the accused. If this law is abused by an
      unjustifiable resort thereto by the grand jury, the accused has
      opportunity upon the trial to prove that he has never had an
      assumed name, and that he has never been known by the names
      given in the indictment aside from that which he admits is his true
      name.

Andrews v. State, 196 Ga. 84, 110-111 (26 SE2d 263) (1943), overruled in part

on other grounds, Frady v. State, 212 Ga. 84 (90 SE2d 664) (1955). See also

Allen v. State, 231 Ga. 17, 18 (200 SE2d 106) (1973).

      A claim that the indictment has misidentified the defendant should be

challenged by a special plea of misnomer, which will be sustained only when the

defendant has never been known by any of the names listed in the indictment.

                                         5
See OCGA § 17-7-112; Andrews, 196 Ga. at 110-111. Moreover, there is no

reason to believe that the mere mention of an innocuous-sounding alias in the

caption of the indictment caused McKinney any harm. Cf. Hawes v. State, 266

Ga. 731, 732-733 (470 SE2d 664) (1996) (holding that the inclusion of the alias

“Stomper” in the indictment was proper where the defendant was known by that

nickname, even though the victim “literally was beaten and stomped to death”).

       3.      McKinney also contends that the trial court erred in denying his

pretrial motion to sever the count of the indictment charging possession of a

firearm by a convicted felon (Count 10) and the related felony murder count

(Count 2) for trial separately from the other charges, on the ground that evidence

of his prior felony conviction for possession of cocaine was otherwise

inadmissible as bad character evidence under former OCGA § 24-2-2.2 This

Court has held that, in cases where a felon-in-possession firearm charge “is

unrelated to another count for which the defendant is to be tried,” the

proceedings should be bifurcated so that the jury will hear and decide the more

serious charge(s) before learning about the firearm charge and the defendant’s


       2
          Appellants’ trial was held under Georgia’s old Evidence Code. Our new Evidence Code,
effective for trials held after January 1, 2013, addresses character evidence in OCGA § 24-4-404 and
the related provisions referenced therein.
                                                     6
prior conviction. Head v. State, 253 Ga. 429, 431-432 (322 SE2d 228) (1984),

overruled on other grounds by Ross v. State, 279 Ga. 365 (614 SE2d 31) (2005).

However, “a motion to bifurcate should be denied where the count charging

possession of a firearm by a convicted felon might serve as the underlying

felony supporting a felony murder conviction.” Poole v. State, 291 Ga. 848, 850

(734 SE2d 1) (2012). See also Head, 253 Ga. at 432; Jones v. State, 265 Ga.

138, 139-140 (454 SE2d 482) (1995) (holding that bifurcation is not appropriate

whenever there is a malice murder charge, because felony murder based on the

felon-in-possession firearm charge could be a lesser included offense). Because

in this case one of the counts of felony murder was based on the felon-in-

possession firearm charge (and the indictment also charged malice murder), the

trial court did not err when it denied McKinney’s motion to bifurcate the trial.

      4.    Brown contends that the trial court erred during jury selection when

it failed to grant his request to strike Juror 69 for cause. Juror 69 was a

pediatrician who said during voir dire that “someone needed to pay” for what

happened to the child victim, that she did not like guns, that it would be difficult

for her to sit and listen to the evidence, and that she did not want to see the

mother of the child cry. However, Juror 69 also testified that she would be

                                         7
“willing to hear the facts” and confirmed that she had not presumed that Brown

was guilty. She also said,

      I think I can be impartial, I mean, I deal with a lot of emotions in
      my position as a physician, and I can separate myself from these
      emotions and come to a logical decision. So I think I would be able
      to hear the evidence and come to a logical decision.

She added she “would do [her] best to set aside [her] emotions” and reiterated,

“I think I can separate my emotions and look at the facts in the case.” When the

court asked if she could reach an impartial verdict, she answered: “I’m a human

being with a lot of history, and I will do the best I can to be impartial. That’s all

I can say. I mean that’s all I can really do.”

      “Whether to strike a juror for cause lies within the sound discretion of the

trial judge, and the trial court’s exercise of that discretion will not be set aside

absent a manifest abuse of discretion. . . . The law presumes that potential jurors

are impartial, and the burden of proving partiality is on the party seeking to have

the juror disqualified.” Poole v. State, 291 Ga. 848, 851 (2012) (citations

omitted). Moreover,

      “[f]or a juror to be excused for cause, it must be shown that he or
      she holds an opinion of the guilt or innocence of the defendant that
      is so fixed and definite that the juror will be unable to set the
      opinion aside and decide the case based upon the evidence or the

                                          8
      court’s charge upon the evidence. A prospective juror’s doubt as to
      his or her own impartiality does not demand as a matter of law that
      he or she be excused. Nor is excusal required when a potential juror
      expresses reservation about his or her ability to put aside personal
      experiences. . . . A conclusion on an issue of bias is based on
      findings of demeanor and credibility which are peculiarly in the trial
      court’s province, and those findings are to be given deference.”

Brockman v. State, 292 Ga. 707, 721 (739 SE2d 332) (2013) (citation omitted).

Viewed under these principles, although Juror 69 indicated that she disliked

guns and was upset that a child had been killed, the trial court did not abuse its

discretion in concluding from the sum of her responses that she would be able

to listen to the evidence and reach an impartial decision.

      5.    Before trial, Brown and McKinney gave notice, as required by

Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991), and Uniform Superior

Court Rule 31.6, of their intention to introduce evidence of Richardson’s prior

acts of violence in support of their justification defense. See Chandler, 261 Ga.

at 407-408 (“[W]e will permit a defendant claiming justification to introduce

evidence of specific acts of violence by the victim against third persons . . . .”).

These acts included a 1994 incident for which Richardson pled guilty in Fulton

County to two counts of simple battery for choking his mother; three separate

incidents in Baltimore in 1998, where Richardson was allegedly involved in an

                                         9
assault and battery, a carjacking and assault, and an assault; a 1999 incident for

which Richardson was arrested in Taylor County, Georgia with a stolen CD

player and a 9mm gun in his possession; and a 2004 incident for which

Richardson was found guilty of choking someone. The trial court admitted the

proffered evidence of only the 1994 and 2004 incidents.

      Both Appellants challenge the trial court’s refusal to let them call

Richardson as a witness to testify about these incidents, based on his invocation

of his privilege against self-incrimination. McKinney alone also now claims

that the trial court should have granted Richardson immunity so that he would

testify. And McKinney alone challenges the trial court’s exclusion of the

proffered evidence of the 1998 and 1999 incidents. We conclude that none of

these enumerations of error have merit.

            (a)   When Appellants sought to call Richardson as a witness to

testify about his previous acts of violence against other people, his counsel

announced that Richardson would invoke his Fifth Amendment privilege against

self-incrimination as to any questions about those prior acts, noting that

Richardson’s own trial was scheduled to begin in about a month. When a



                                        10
witness expresses his intention to invoke his privilege against self-incrimination,

the trial court must consider the questions that the witness would be asked and

        decide whether there is a real and appreciable danger that the
        answer[s] could incriminate the witness. If so, then the decision to
        answer must be left to the witness. If the trial court determines that
        the answers could not incriminate the witness, the witness is
        required to answer or face the court’s sanctions.

Cody v. State, 278 Ga. 779, 780 (609 SE2d 320) (2004) (emphasis in original).

After hearing arguments from both sides, the trial court here reasonably

concluded that any questions as to Richardson’s past violent acts could

incriminate him and affect his pending trial. Accordingly, the court precluded

Appellants from calling Richardson as a witness.

        Citing Spivey v. State, 200 Ga. App. 284 (407 SE2d 425) (1991),

Appellants argue that the trial court erred in refusing to let them call Richardson

to the witness stand outside of the presence of the jury and then considering on

a question-by-question basis whether Richardson had a legitimate reason to

invoke his privilege against self-incrimination.3 However, Appellants did not

identify at trial, and still have not identified on appeal, any specific questions


        3
         It is clear that the trial court acted within its discretion in refusing to make Richardson take
the witness stand and invoke his right against self-incrimination in front of the jury. See Davis v.
State, 255 Ga. 598, 604 (340 SE2d 869) (1986).
                                                     11
about the prior violent acts as to which Richardson could not validly assert his

privilege. This is not a case like Spivey, where the limited questioning proposed

by the defendant appeared calculated “to elicit only potentially relevant

testimony exculpatory of [the defendant], rather than incriminatory of [the

witness].” See id. at 285.

                (b)   McKinney also claims that the trial court should have granted

Richardson use immunity under former OCGA § 24-9-28 to compel his

testimony about the prior incidents.4 However, McKinney did not ask the court

to do this during the trial and thus did not preserve this claim for review on

appeal. See Rucker v. State, 291 Ga. 134, 138 (728 SE2d 205) (2012).




       4
           Former OCGA § 24-9-28 (a) said, with emphasis added:

       Whenever in the judgment of the Attorney General or any district attorney the
       testimony of any person or the production of evidence of any kind by any person in
       any criminal proceeding before a court or grand jury is necessary to the public
       interest, the Attorney General or the district attorney may request the superior court
       in writing to order that person to testify or produce the evidence. Upon order of the
       court that person shall not be excused on the basis of his privilege against
       self-incrimination from testifying or producing any evidence required; but no
       testimony or other evidence required under the order or any information directly or
       indirectly derived from such testimony or evidence may be used against the person
       in any proceedings or prosecution for a crime or offense concerning which he
       testified or produced evidence under court order. . . .

This provision is found in the new Evidence Code at OCGA § 24-5-507 (a).
                                              12
      In any event, “[t]his Court has never directly held that a defendant, as

opposed to the State, may properly request a trial court to extend use immunity

to a defense witness.” Ward v. State, 292 Ga. 637, 639 (740 SE2d 112) (2013).

We explained long ago that “[o]ur statutes provide no such discretion to the

court and, further, make no provision for a grant of immunity to defense

witnesses.” Dampier v. State, 249 Ga. 299, 300 (290 SE2d 431) (1982). In

Dampier, we noted that the United States Court of Appeals for the Third Circuit

had adopted a test for “judicially imposed use immunity,” but concluded that

Dampier’s claim failed even under that test because the State’s interest in

denying immunity to the witness outweighed the defendant’s need for the

testimony. See id. at 301-302. The Third Circuit has recently changed course

and brought its law in line with every other federal circuit court in holding that

courts do not have the authority to grant immunity to a witness at the request of

a defendant, because “Congress has given the Executive Branch the sole

authority to immunize witnesses.” United States v. Quinn, 728 F3d 243, 252

(3d Cir. 2013). We now squarely hold that Georgia law does not authorize a

trial court to grant use immunity to a witness at the request of a defendant. See



                                       13
Dennard v. State, 313 Ga. App. 419, 421 (721 SE2d 610) (2011) (adopting the

same holding).

      McKinney also now suggests that the trial court could have excluded

Richardson’s testimony at Appellants’ trial from being used later in

Richardson’s trial. However, McKinney does not cite any precedent authorizing

one defendant to seek an order suppressing evidence in another defendant’s trial,

and again he did not explicitly seek such an order from the trial court. See

Quinn, 728 F3d at 254-255 (explaining that the United States Supreme Court

has limited the trial court’s ability to prevent a defendant’s testimony in a

pretrial hearing from being used against him at his later trial to cases where “the

defendant witness faced a conflict between two [of his own] constitutional

rights”).

            (c)    To prove the three separate incidents of violence allegedly

committed by Richardson in Baltimore in 1998, Appellants proffered only the

police reports of each incident. Appellants acknowledged that the reports were

hearsay but maintained that the reports should be admitted under the necessity

exception to the hearsay rule because, given Richardson’s refusal to testify at

trial, the reports were the only evidence of his alleged violent acts in 1998. See

                                        14
former OCGA § 24-3-1 (b).5 The trial court ruled that the police reports were

inadmissible, and McKinney enumerates that ruling as error.

      “In order to admit a statement under the necessity exception to the hearsay

rule, the declarant must be unavailable, there must be particular guarantees of

trustworthiness, and the statement must be shown to be relevant to a material

fact and more probative of that material fact than other evidence that might be

procured and offered.” White v. State, 276 Ga. 583, 586-587 (2003). Even

assuming that the authors of the three 1998 police reports and the victims and

witnesses whose statements were recounted in two of the reports were all

outside Georgia and thus deemed unavailable, see Bragg v. State, 279 Ga. 156,

157 (611 SE2d 17) (2005), and that the reports were relevant as the only

evidence of these alleged prior acts of violence by Richardson, Appellants failed

to establish the necessary guarantees of trustworthiness.

      The report of the first 1998 incident identified the perpetrator as a black

male named “Tion Chauncy Richardson” and included the perpetrator’s date of

birth and address. The report of the second incident identified the perpetrator

only as “Teon,” describing him as a black male with three gold teeth. The report


      5
          The necessity exception is codified in the new Evidence Code at OCGA § 24-8-807.
                                                 15
of the third incident identified the perpetrator as “Teon C. Richardson” and

included the same address and date of birth as the first report. Other than the

relatively common name, Appellants offered no evidence directly linking the

Teon Richardson involved in this case with the alleged perpetrator (or

perpetrators) described in the police reports from Baltimore – not even evidence

of Richardson’s birthdate or that he was living in Baltimore in 1998. We note

that the police report from the 1999 Taylor County incident includes a birthdate

for Richardson that matches the date on the two 1998 police reports – but the

police report from the 1994 incident in Fulton County, which was admitted

along with the testimony of the investigating officer, lists a different birthdate

for Richardson.     Nor did Appellants offer any evidence of charges or

convictions relating to the Baltimore incidents. The trial court found that there

was no reliable evidence that Richardson was the person identified in the 1998

police reports, and we cannot say that the court’s finding was clearly erroneous.

      In addition, the only information about violent acts contained in the police

reports of the first two incidents was double hearsay – the statements of victims

and witnesses recounted in those reports. At trial, McKinney asserted that this

double hearsay issue could be eliminated through redaction of those statements

                                       16
from the police reports, but if the victim and witness statements were redacted,

the reports would include no description of the perpetrator’s violent acts and

thus would be irrelevant. And on appeal, McKinney does not suggest a theory

by which the victim and witness statements would have been admissible, and we

need not search for one sua sponte.

      As for the police report of the third 1998 incident, which contains an

officer’s account of the perpetrator’s violence toward him, this Court has

expressed doubts about the reliability of such narrative portions of police reports

when offered in criminal trials. See, e.g., Brown v. State, 274 Ga. 31, 33-36

(549 SE2d 107) (2001) (explaining that the narrative portion of a police report

“does not have the reliability inherent in other documents that courts have

traditionally considered to be business records,” and concluding that “the

narratives contained in police reports generated in connection with police

investigations are not the appropriate subject of an exception to the hearsay

rule.”). Moreover, the trial court admitted evidence of the 1994 and 2004

incidents of violence committed by Richardson, making the evidence of the

1998 incidents somewhat cumulative. Under these circumstances, the trial court

did not abuse its discretion in excluding the three 1998 police reports.

                                        17
            (d)   The trial court also excluded the proffered evidence that in

1999 in Taylor County, Richardson broke into a car and was arrested as he fled

with a stolen CD player and a 9mm gun in his possession, on the ground that the

incident did not involve an act of violence. McKinney challenges this ruling,

but we again see no abuse of discretion.

      The burden is on the defendant to show that the alleged victim’s prior acts

involved violence toward a third party. See Bennett v. State, 265 Ga. 38, 41

(453 SE2d 458) (1995). This Court has held that merely possessing a firearm

– even an illegal sawed-off shotgun – is not a “specific act of violence” against

a third party, without proof of a specific victim. Smith v. State, 270 Ga. 240,

243-244 (510 SE2d 1) (1998), overruled on other grounds by O’Kelley v. State,

284 Ga. 758 (670 SE2d 388) (2008). And McKinney’s assertion that the

evidence related to the 1999 incident proved that Richardson pointed the gun at

a police officer is not supported by that evidence, in particular the transcript

from the hearing at which Richardson entered his guilty pleas for offenses

related to that incident.    The transcript shows that, in response to the

prosecutor’s allegation that he pulled out a pistol and started to point it at the

officer, Richardson denied pulling a gun on the officer and explained, “I’m

                                       18
pretty sure if I pulled out a pistol and pointed at him he would have shot me”;

the judge taking the plea agreed with Richardson. Accordingly, the trial court

properly excluded evidence of the 1999 incident.

      6.    Toney Carter, a resident of the apartment complex where the

shooting occurred, was called as a witness by the State. Based on statements he

made during his direct examination, he was questioned by both parties outside

the presence of the jury, and he said that earlier on the day of the shooting,

Richardson had openly bragged about pulling a gun on Brown and Brown’s

child that morning. During this convoluted and conflicting testimony, Carter

claimed both that he heard about Richardson’s boast only from “reliable people”

and that he personally heard the boast. The trial court ruled that Carter’s

proffered testimony about Richardson’s alleged statement was inadmissible as

hearsay.

      Both Appellants now contend that Carter’s testimony should have been

admitted as non-hearsay to show Richardson’s state of mind on the day of the

shooting. The validity of this theory depends on which parts of Carter’s

inconsistent testimony are considered. To the extent that Carter said that he

heard about Richardson’s boast only from “reliable people,” the statements

                                      19
made to Carter by those unidentified people are themselves hearsay and were

properly excluded. The parts of Carter’s testimony that indicate that he heard

Richardson’s boast directly, however, might be admissible to prove

Richardson’s state of mind, because even if Richardson was lying about making

the threat, the fact that he said to Carter that he had threatened Brown indicated

his ill-will toward Brown. See Sturkey v. State, 271 Ga. 572, 573 (522 SE2d

463) (1999).

      At trial, however, Appellants argued only that Carter’s testimony about

Richardson’s statement was admissible under the exception to the hearsay rule

for a statement made by a party, an argument they have abandoned on appeal.

Appellants did not argue at trial that any part of Carter’s testimony was non-

hearsay, and thus they did not preserve that claim for review on appeal. See

Rucker, 291 Ga. at 138. In any event, any error the trial court may have made

in excluding part of Carter’s proffered testimony that Richardson posed a threat

to Brown was harmless, given the testimony of five eyewitnesses that

Richardson pointed his TEC-9 gun at Brown and McKinney before they drew

their guns.



                                       20
      7.    McKinney alone contends that the trial court erred in excluding

Cheryl Jackson’s hearsay statement that Richardson entered her apartment after

the shootout with McKinney and Brown and then dislodged the clip of the gun

he was carrying, wiped the clip off with a shirt, reloaded the clip, and cocked the

weapon. Jackson recounted these events in a signed statement to the police, but

she died before Appellants’ trial. The trial court denied McKinney’s pretrial

motion to admit Jackson’s statement under the necessity exception to the

hearsay rule on the ground that McKinney had not shown that her statement was

more probative of a material fact than other available evidence, see White, 276

Ga. at 586-587, because other witnesses were available to testify that

Richardson had a gun and that he entered Jackson’s apartment during the

shootout.

      McKinney asserts, however, that Jackson’s statement was the only

evidence that could establish that Richadson’s gun was actually capable of

firing. But two eyewitnesses testified that they believed Richardson actually

fired shots, and Jackson’s statement does not prove that Richardson’s gun was

capable of firing, since she never said that she saw the gun fire. Indeed, the

events she recounted would support the inference that Richardson’s gun had

                                        21
jammed and needed to be cleared before it would be capable of firing, an

inference supported by direct testimony from other eyewitnesses that the gun did

not fire. Under these circumstances, the trial court did not abuse its discretion

in denying McKinney’s motion to admit Jackson’s hearsay statement under the

necessity exception.

      8.     At trial, the State introduced evidence, in the form of testimony from

Brown’s ex-girlfriend and an officer who investigated the incident, showing that

in May 1999, Brown was standing on his ex-girlfriend’s porch with her, her

daughter, and other children when he was approached by her new boyfriend and

another man. Brown responded by pulling out a handgun, pointing it at the

people on the porch, and pulling the trigger, although the gun did not fire. This

evidence was admitted to show Brown’s course of conduct and bent of mind,

and the court gave a limiting instruction to that effect. Brown argues that the

admission of this evidence was error. We disagree.

      Before a trial court can admit similar transaction evidence, the State must

show that:

      “(1) it seeks to introduce the evidence not to raise an improper
      inference as to the accused’s character, but for some appropriate
      purpose which has been deemed to be an exception to the general

                                        22
      rule of inadmissibility; (2) there is sufficient evidence to establish
      that the accused committed the independent offense or act; and (3)
      there is a sufficient connection or similarity between the
      independent offense or act and the crime charged so that proof of
      the former tends to prove the latter.”

Hanes v. State, 294 Ga. 521, 522 (755 SE2d 151) (2014) (citation omitted). At

the time of Appellants’ trial, it was appropriate for the State to introduce

evidence of a defendant’s prior bad acts for the purpose of showing his “course

of conduct” and “bent of mind.” See, e.g., Cockrell v. State, 281 Ga. 536,

539-540 (640 SE2d 262) (2007).6 And the evidence the State presented was

clearly sufficient to establish that Brown committed the act in May 1999.

      Brown maintains, however, that the 1999 incident was not sufficiently

similar to the shooting at issue in this case. The proper focus is on the

similarities, not the differences, between the crimes charged and the prior acts.

See Brite v. State, 278 Ga. 893, 894-895 (608 SE2d 204) (2005). In both

incidents, Brown pulled out a handgun and aimed it at a person with whom he

had a dispute, in a residential area, ignoring the presence of innocent bystanders,

including a child. Thus, the trial court did not abuse its discretion in concluding

that the incidents were sufficiently similar and admitting the evidence of the

      6
       Under the new Evidence Code, the admission of this type of evidence is governed by
OCGA § 24-4-404 (b).
                                         23
1999 act. See id. (holding that the trial court did not err in admitting similar

transaction evidence because the prior incident and the incident at issue shared

several similarities, including showing the defendant’s “propensity to resort to

deadly force with little or no provocation”); Hickson v. State, 308 Ga. App. 50,

52-53 (706 SE2d 670) (2011) (concluding that the three prior incidents and the

incident at issue were sufficiently similar because they all involved the

defendant’s pulling out a gun after a verbal altercation).

      Judgments in Case No. S14A0800 and Case No. S14A0801 affirmed. All

the Justices concur.




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