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Green v. State

Court of Appeals of Georgia, First Division

October 15, 2019

GREEN
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Brown, Judge.

         Anthony Green appeals from his conviction of aggravated assault and possession of a firearm by a convicted felon. He asserts that insufficient evidence supports his convictions and that the trial court erred by allowing the State to present evidence of his 1982 guilty plea to felony murder and to bolster its witnesses with prior statements. For the reasons explained below, we grant Green a new trial based upon the trial court's admission of evidence related to his 1982 guilty plea.

         On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 S.E.2d 313) (2013). So viewed, the record shows that on November 16, 2012, the 15-year-old victim was at her mother's home when adults were playing cards at the kitchen table. The victim testified that Green, her mother's boyfriend, was also playing cards. After an argument erupted between Green and the victim's brother, Green went outside through the front door. The victim further testified that she stood before the front door of the home because "[w]e were trying to stop him from going, my brother from going out the door." As the victim moved "from in front of the door," she blacked out, and the next thing she remembered was waking up on a stretcher in the hospital. She did not remember being shot in the lower back. The victim testified that Green had been outside for "two or three minutes" before she blacked out. The front door had no windows and there was no way to see through it.

         A male eyewitness testified that the victim's brother "got into it" with Green after the eyewitness stated during the card game that Green had been looking at his hand. At some point, Green told the brother to come outside and "I got something for you anyway. I've been wanting you anyway." The witness testified that Green and the brother were separated, and the victim then shut the front door and locked it. As the victim turned to walk away from the door, she was shot. The eyewitness testified that the victim was shot "probably about like thirty seconds" after Green went outside. Earlier in the evening, the eyewitness saw Green carrying "a small type pistol" on his side that appeared to be "a twenty-five, twenty-two" caliber weapon. Finally, the eyewitness testified that only the victim's brother was outside when he arrived after getting off of work around 9:00 p.m. He admitted that he did not see who shot the victim.

         A female eyewitness testified that approximately 20 to 25 people were at the house for "a cookout." She recalled the victim's oldest brother telling Green to leave and Green responding that "he wasn't doing nothing." She described Green as "always be [sic] like that. He always argue." After Green left through the front door, "the door was shut." The eyewitness testified that she did not know how much time passed between Green leaving and hearing "a pop" before the victim "passed out." Later in her testimony, the eyewitness stated that Green "had just left" and the victim was shot as she was leaning her back against the door to close it. She testified that numerous people were standing outside when Green left.

         The State called the victim's mother as a witness, and she testified that other than Green getting into an argument with someone other than her son, she did not remember what happened next because she "was very intoxicated." Several questions later, she stated that she recalled Green leaving and hearing his truck "crunk . . . up" after the door was shut. While she clearly remembered this fact, she testified that she did not remember hearing a gunshot or seeing her daughter fall down. The next thing she could recall at trial was "[g]etting to the hospital." She stated that she did not talk to Green again after her daughter was shot based upon the advice of detectives. She also testified that no one knows what happened "because the door was shut." At one point, her testimony changed from not remembering what happened to a denial of hearing a gunshot.

         The responding police officer testified that he arrived "around 9:20 to 9:45" in response to a report that a person had been shot; the victim already had been taken to the hospital when he arrived. He observed a bullet hole in the door and the shell casing for a small caliber pistol on the front stoop. He testified that the female eyewitness told him that "when Mr. Green stepped outside, [the victim] closed the door and turned around. And as soon as she turned around [the witness] heard a shot and then they saw [the victim] drop to her knees." He testified that the witness communicated clearly and did not "seem incoherent or extremely intoxicated."

         A forensic investigator testified that the shell casing found on the front porch would have been expelled from a small twenty-five caliber automatic handgun. Based upon his investigation and the use of a trajectory rod, he determined that the bullet that hit the victim was fired from the front porch.

         Over Green's objection, the State presented evidence, under OCGA § 24-4-404 (b), of his 1982 plea of guilty to felony murder by having a police investigator read the transcript of the guilty plea hearing. During his plea, Green stated that he and an accomplice went

inside the store and the dude, we robbed him. And he said, you have . . . the money, just don't hurt me. And when the dude rushed at me, you know, that's when I, you know, I shot three times but I don't know that I hit him. . . . He ran back in the back of the store, you know, and I heard somebody, . . . ...

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