Murder. Stephens Superior Court. Before Judge Caudell.
Brian M. Rickman, District Attorney, Richard K. Bridgeman, Assistant District Attorney, for appellant.
The Steel Law Firm, Brian Steel, for appellee.
BENHAM, Justice. All the Justices concur.
The State appeals the trial court's decision to grant appellee Steve A. Sims, Jr.'s motion for new trial in regard to his convictions and sentences for felony murder and possession of a firearm during the commission of a felony. For reasons set forth below, we affirm.
1. The evidence viewed in a light most favorable to the jury's verdict shows that several eyewitnesses saw appellee shoot Shawn Hancock after Hancock had interjected himself into an argument Sims was having with his ex-girlfriend K. M. K. M. testified that Hancock was like her brother. A week before the shooting outside the home of appellee's grandmother, appellee and Hancock had also gotten into an argument regarding appellee's relationship with K. M., but no physical altercation occurred, and Hancock left after appellee's grandmother threatened to call police. On the night of the shooting, K. M. was driving in her car with Hancock, her mother, and two friends when she spotted appellee in his car with a woman. K. M. followed appellee to his residence. K. M. parked in the street and got out of her vehicle to confront appellee, and the two argued. During the argument, K. M. slapped appellee. Hancock, who had been watching the argument from the car, got out of the vehicle and tried to encourage K. M. to leave. The situation became heated, and Hancock and appellee began to shove and push each other. K. M.'s mother testified she saw appellee and Hancock " swinging" at each other, but [296 Ga. 466] could not say whether any blows landed. The evidence showed Hancock was taller and three times heavier than appellee. All eyewitnesses testified Hancock was unarmed during the altercation. Witnesses said appellee went into his grandmother's residence, came back outside with a gun in his hand and shot Hancock several times. The medical examiner testified that Hancock had at least four gunshot wounds, but was unable to say exactly how many bullets caused the wounds. Eyewitnesses testified they heard two to three gunshots. The medical examiner stated there was no stippling or gun residue on Hancock's clothing or on his body, indicating the shots were not made at close range. The medical examiner concluded that Hancock died from a gunshot wound to the chest piercing his heart and lung.
An agent with the Georgia Bureau of Investigation (GBI) interviewed appellee for an hour shortly after his arrest. The agent testified he did not notice any injury to appellee's face at the time of the interview. The State played an audio recording of appellee's interview with the GBI agent. During that interview, appellee initially denied having a gun or shooting the victim. When confronted with the knowledge that the agent had spoken with his father at the scene, appellee admitted to shooting the victim. Appellee told the agent Hancock hit him no more than three times in the face. He said the first blow was weak, that the second blow made him " dizzy," and he was not sure about whether there was a third blow. After the second blow, he said he did not believe he could " beat" Hancock and he did not want to be " laying on the ground" in front of his grandmother and his grandmother having to " pick [him] up." When asked where he " ha[d]" the gun used to shoot Hancock, appellee said it was under his grandmother's couch. Appellee never denied going inside
the house to get the gun after Hancock hit him.
[296 Ga. 467] During the interview with the GBI agent, appellee was unaware that Hancock was deceased. At trial, witnesses testified that once Hancock was shot, he was able to sit down in K. M.'s car. At that point, all of K. M.'s passengers got back into the vehicle and drove off to take Hancock to the hospital. K. M. pulled over a few blocks away, however, and called 911 because Hancock had stopped breathing. Appellee told the GBI agent that after the shooting he dropped the gun and thought about fleeing, but that he ultimately went inside the house, where police arrested him. When the GBI agent interviewed appellee's father at the scene, he denied having any knowledge about a gun or the ...