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Timmons v. State

Supreme Court of Georgia

October 30, 2017

TIMMONS
v.
THE STATE.

          HINES, CHIEF JUSTICE.

         Kyle Devonte Timmons appeals his convictions and sentences for felony murder, aggravated assault, and aggravated battery, in connection with the shooting death of Dominque Alexander Spears. For the reasons that follow, we affirm in part and vacate in part.[1]

         Construed to support the verdicts, the evidence showed that a month before Spears was killed, Timmons visited Marshawn Hamilton in Rome, Georgia, a town in which Timmons had lived before moving away. During that visit, Timmons and Hamilton went to a sports bar, which Spears and some friends were patronizing. When Timmons began to light a cigarette, Spears snatched it from his mouth. Timmons asked that his cigarette be returned; Spears refused and pushed Timmons against a wall; Timmons punched Spears in the face; Hamilton intervened; and he and Timmons left the bar. The next day, Spears telephoned Hamilton and said he wanted to fight Timmons; on a speaker phone, Timmons said he did not want to fight Spears, and Spears said that he would fight Timmons the next time he saw him.

         During a visit to Rome on September 23, 2014, Timmons arranged for Tiffany Chambers to drive him, Lamar Lashley, and Aspen Donaldson to Donaldson's apartment; Spears lived in the same apartment complex, in a building near Donaldson's building. When they arrived at the apartment complex, Donaldson went into her apartment and the others stayed in the car. After a short period, Donaldson returned to the car, and told Timmons to join her in the apartment. At that time, Spears was walking near the front of the car; Timmons exited the car, and the two men quickly confronted each other. Lashley testified that the men "scuffled"; Chambers could not confirm a physical fight, but saw Timmons "raise his arm toward Mr. Spears." Spears was shot twice with a .22 caliber pistol. One projectile entered the front left side of his chest, traveled slightly upward, and lodged in the muscles of his back; the other projectile entered the right side of the back of his neck, and traveled upward into Spears's brain; either of the bullet wounds would have proved fatal. After the shooting, Timmons ran, throwing the pistol aside as he did so; he arrived at a nearby house, asked the occupant to call 911, saying that he had shot a man, and was soon arrested. Later, Donaldson made a Facebook post stating that she believed the shooting was in self defense, that Spears should not have "ran up on Kyle, " that Spears had repeatedly told her that he would beat up Timmons, and that "I guess he got what he deserves but at the wrong time when call [sic] had that tool on him"; she testified that the reference to "call" in the Facebook post was "meant to say Kyle." When asked during an interview with an investigator about this Facebook post, Donaldson said that, while in the car, Timmons had a small pistol in his pocket, that he pulled it out of his pocket when he got out of the car, and that this was the first time Donaldson had seen Timmons with a pistol. She also told the investigator that Timmons knew that Spears lived in the complex, that Timmons stated that there were some hostile people who lived there, and, in the car before the shooting, she heard Timmons slide the action on the pistol.

         Timmons testified in his defense that: he did not know that Spears lived in the apartment complex; Spears saw him in the car; Spears came up to him as he exited the car and struck him in the face; dazed, he grabbed Spears and felt something at Spears's waistband; he pulled the object from Spears's waistband; he realized by both feel and vision that the object was a handgun; he pushed Spears away, closed his eyes, and fired twice; and, he feared for his life during the confrontation. However, in statements to police investigators made the day of the shooting, Timmons said that Spears lived across from the building in which Donaldson lived, Spears was coming from "his house" when the confrontation at the car occurred, and that as Spears arrived at the car, he exited it. Timmons also told the investigators that as he exited, Donaldson urged that he "don't do nothing" regarding his poor relationship with Spears.

         1. Timmons does not contest the legal sufficiency of the evidence of his guilt as to the charges of which he was convicted. Nevertheless, in accordance with this Court's general practice in appeals of murder cases, we have reviewed the record and conclude that the evidence at trial authorized the jury to find Timmons guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         However, Timmons was charged with one count of felony murder "during the commission of a felony, to wit: AGGRAVATED ASSAULT AND AGGRAVATED BATTERY." He was found guilty of that crime, as well as separate counts of aggravated assault and aggravated battery, and sentenced for all three of those crimes. "This was error as the underlying felonies of aggravated assault [and] aggravated battery . . . merged as a matter of fact into the felony murder. [Cits.]" Smith v. State, 300 Ga. 538, 542 (4) (796 S.E.2d 666) (2017). Consequently, the sentences for aggravated assault and aggravated battery must be vacated. Id.

         2. (a) The State was permitted to introduce, in its case in chief, evidence of posts Timmons had made on Facebook ("the Facebook evidence") as evidence of his allegedly violent character and behavior in conformity therewith. The posts were on Timmons's Facebook page, were not part of any conversation with another person on Facebook, and did not refer to Spears or any other individual. The posts used racially charged terms, expressed that Timmons was not afraid to die or go to jail, referred to shooting or killing someone, asserted that if someone "play[ed]" with him "ya family missing ya, " and included the text "#lifeshortdontmakeitshorter."[2] The trial court determined that, as Timmons was claiming the defense of self-defense, whether Spears had a propensity for violence was an issue necessarily "pertinent" to the case, and thus, by virtue of the fact that Timmons claimed self-defense, the State would be allowed under OCGA § 24-4-404 (a) (2)[3] to show Timmons's own character for violence, and could do so by introducing Timmons's Facebook posts demonstrating that "character." However, this ruling represents a misunderstanding of OCGA § 24-4-404 (a) (2).

         For trials that take place after January 1, 2013, "[t]he admissibility of evidence of a victim's character is . . . governed by OCGA §§ 24-4-404 and 24-4-405.[4] See Mohamud v. State, 297 Ga. 532, 535 (3) (773 S.E.2d 755 (2015)." Gibson v. State, 300 Ga. 494, 498 (n. 8) (796 S.E.2d 712) (2017). And, OCGA §§ 24-4-404 and 24-4-405 govern not only the admissibility of evidence of a victim's character, but more generally the admissibility of "[e]vidence of a person's character or a trait of character." OCGA § 24-4-404 (a) (Emphasis supplied.) See also OCGA § 24-4-405 (a). ("In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.") (Emphasis supplied.)

         In 2011,

our General Assembly enacted a new Evidence Code, of which [OCGA §§ 24-4-404 and 24-4-405 are] part. Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit. [Cit.]

Olds v. State, 299 Ga. 65, 69 (2) (786 S.E.2d 633) (2016) (Footnote omitted.) And, as in the similar Federal Rules 404 and 405, OCGA § 24-4-404 deals with whether character evidence is to be admitted, and OCGA § 24-4-405 deals with the methods by which character may be proved. See U.S. Keiser, 57 F.3d 847, 855-856 (III) (B) (9th Cir. 1995). See also Oliver v. State, 329 Ga.App. 377 (765 S.E.2d 606) (2014). Thus, OCGA § 24-4-404 (a) provides that evidence of a person's character is generally not admissible, except in the circumstances set forth in subsections (a) (1), (a) (2), and (a) (3).[5] And, if evidence "of a person's character or a trait of character [is to be admitted] for the purpose of proving action in conformity therewith on a particular occasion" under OCGA § 24-4-404 (a), it is required by OCGA § 24-4-405 (a) that proof of such "character or a trait of character . . . be made by testimony as to reputation or by testimony in the form of an opinion." As we have stated,

OCGA § 24-4-405 (a) . . . provides: "In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion." Therefore, as a general rule, character evidence of a victim is limited to reputation or opinion, not specific bad acts.

Mohamud v. State, supra at 536 (Emphasis in original, footnote omitted.) See also U.S. v. Talamante, 981 F.2d 1153, 1156 (I) (10th Cir. 1992) ("[T]estimony describing specific instances of the victim's conduct, as opposed to reputation or opinion evidence . . . [is] not admissible under [Federal] Rule 404 (a) (2) to prove that the victim acted in conformity with the conduct.") And, such is the case whether the character evidence at issue is that of an accused such as Timmons, or of a victim such as Spears.

         The State argued at trial that the Facebook evidence was admissible due to the interplay of OCGA § 24-4-404 (a) (1) and (a) (2), an argument that the trial court accepted. Under OCGA § 24-4-404 (a) (1), "if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under [OCGA § 24-4-404 (a)] (2), " the prosecution may offer "evidence of the same trait of character of the accused." The State asserts that Timmons, through cross-examination, introduced "evidence of a pertinent trait of character of the alleged victim of the crime" (i.e., Spears's violent character) within the meaning of OCGA § 24-4-404 (a) (2), [6] and that this fact entitled the State to offer "evidence of the same trait of character of the accused" under OCGA § 24-4-404 (a) (1). But, as noted above, OCGA § 24-4-405 requires that proof of a pertinent character trait of an alleged victim "shall be made by testimony as to reputation or by testimony in the form of an opinion." The Facebook evidence was not such "testimony as to reputation or . . . testimony in the form of an opinion." Thus, even if, through cross-examination, Timmons elicited testimony touching upon Spears's character, it was not evidence of the victim's character within the meaning of OCGA § 24-4-404 (a) (2), and not "evidence of a trait of character [i.e., violence] of the alleged victim of the crime . . . offered by [the] accused and admitted under [OCGA § 24-4-404 (a) (2)]." Accordingly, it did not open the door to "evidence of the same trait of character of the accused [i.e., violence] offered by the prosecution" under OCGA § 24-4-404 (a) (1).

         To be clear, the relevant Code sections show that we must reject the specific argument that the State made, and that the trial court accepted, i.e., that, as Timmons raised self-defense, it would necessarily be an issue in the case whether Spears had a violent "character or a trait of character" for violence under OCGA § 24-4-404 (a), and thus, the very fact that Timmons raised the defense meant that the State could introduce evidence to show Timmons's general character for violence, under the guise of admissibility pursuant to OCGA § 24-4-404 (a) (1) and (2). Indeed, we recently addressed the admissibility of character evidence under OCGA § 24-4-404 (a), and made it apparent that the Code section mandates certain timing, in that for the State to be able to introduce character evidence, "a defendant [must] first introduce evidence of a pertinent character trait of the victim or evidence that the victim was the first aggressor before the State may introduce [proper character] evidence to rebut that which was presented by the defendant." Revere v. State, __Ga.__, (2) (a) (__ S.E.2d __) (2017) (Case No. S17A0806, decided Sept. 13, 2017, slip op. p. 8) (Emphasis in original.) Under OCGA § 24-4-404 (a), the accused may certainly open the door to the State's introduction of character evidence - evidence of his own character, or that of the victim - but it must be by the strictures of that Code subsection, which did not occur.

         Timmons properly objected to the Facebook evidence when the State offered it as character evidence under OCGA § 24-4-404 (a), and the evidence ...


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