Kell v. State

• Decision Date: 26 June 2006
• Docket Number: No. S06A0429.,S06A0429.
• Citation: 631 S.E.2d 679,280 Ga. 669
• Parties: KELL v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 669

631 S.E.2d 679

KELL v. The STATE.

No. S06A0429.

Supreme Court of Georgia.

June 26, 2006.

Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Christopher Michael Quinn, Asst. Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Thurbert E. Baker, Atty. Gen., Laura D'Ann Dyes, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

Billy Ray Kell was convicted of malice murder in the beating death of Earl Roberts and appeals from the denial of his motion for new trial,¹ raising various challenges to evidence introduced at trial. For the reasons that follow, we find that the trial court committed reversible error by allowing the State to question witnesses regarding efforts by appellant's family to obtain letters appellant wrote to his wife.

1. The State's evidence reflected that shortly after appellant began working at a plumbing company on June 20, 2003, appellant rented from the victim a back room in the building where the victim's office was located as a residence for appellant, his wife and their young son. The building was located two doors down from the plumbing company. On the day of the crime, appellant left work at 10:34 a.m. The victim, who was a 74-year-old dental technician, was found beaten to death by police who responded to a 911 call placed by appellant at 4:53 p.m. Based on sightings of the victim and telephone calls made to him, the jury was authorized to find that the victim was murdered between 1:10 p.m. and 2 p.m. Appellant was seen in the area wearing work clothes around noon and seen after 2 p.m. wearing shorts and sneakers. He was also seen carrying a trash bag that appeared to contain clothing. A pair of work boots, spattered with the victim's blood, was discovered in the men's restroom at the plumbing company; the jury was authorized to believe the two employees who identified the boots as belonging to appellant. Evidence was presented that the victim had been agitated because appellant had failed to pay for dental plates the victim had made for him.

Viewed in a light most favorable to support the verdict, we conclude that the evidence adduced at trial, while not overwhelming, was sufficient to enable a rational finder of fact to find appellant guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Patricia Bagwell, appellant's wife, was called as a witness by the State and testified that the blood spattered boots did not belong to appellant and corroborated details of the statement appellant gave police, in which he claimed that after finding himself locked out of the room he rented from the victim, he reunited with his wife, climbed in the building through an open window, and discovered the victim already dead. The State questioned her whether appellant had threatened her life in letters he had written her since his arrest; she testified that he had not. The defense subsequently called appellant's brother, Bobby Kell, and on cross-examination the State sought to question him whether he had choked Bagwell in order to force her to give him appellant's letters.² Appellant objected to the State's line of questioning on the basis, inter alia, that the jury would infer from the questions that Bobby Kell wanted the letters because they contained statements damaging to appellant, even though there was no evidence to support that inference. The trial court allowed the evidence after ruling that "based on the totality of the circumstances, it is fair to assume, or not assume, but for the inference to be drawn[,] that the evidence that hasn't been produced, if produced, could have proved damaging to the defense." In response to the State's questions, Bobby Kell acknowledged an arrest warrant had been issued for him because of the assault allegation but he denied assaulting Bagwell in any fashion for any reason. He testified that Bagwell voluntarily gave his family the letters and that he read several of them because of the poems appellant wrote. In rebuttal, the State called Bagwell's mother, who heard Bobby Kell and Bagwell exchange angry words and observed red marks on Bagwell's throat after the argument, but personally observed no assault and did not hear any particulars of the argument. She similarly lacked personal knowledge whether, at a different time when Bagwell gave Bobby Kell a shoebox containing letters, appellant's family was aware that an investigator from the district attorney's office had asked about the letters.

In two related enumerations of error, appellant challenges the admission of the evidence that Bobby Kell attacked Bagwell and the admission of evidence that the reason for the attack was to obtain the letters appellant wrote Bagwell because they contained damaging information.

(a) We recognize in Georgia that evidence of a defendant's attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt. Nguyen v. State, 273 Ga. 389(3), 543 S.E.2d 5 (2001); Ballard v. State, 268 Ga. 895, n. 4, 494 S.E.2d 644 (1998). Even where the defendant does not personally make the attempt to influence or intimidate a witness, "[i]t is a settled principle of law ... that an attempt by a third person to influence a witness not to testify or to testify falsely is relevant and may be introduced into evidence in a criminal prosecution on the issue of the defendant's guilt where it is established that the attempt was made with the authorization of the accused." Annotation, "Admissibility in Criminal Case, on Issue of Defendant's Guilt, of Evidence that Third Person Has Attempted to Influence a Witness Not to Testify or to Testify Falsely," 79 A.L.R.3d 1156, 1162 § 3[a] (1977). See also Johnson v. State, 255 Ga.App. 721, 722(2), 566 S.E.2d 440 (2002) (State can show defendant's attempts to influence witnesses made through intermediaries but evidence regarding third party's attempts "must be linked to the defendant in order to be relevant to any material issues"). However, in this case the State introduced no evidence to establish that Bobby Kell's alleged attempt to influence Bagwell's testimony was made with the authorization of appellant. The mere family relationship between appellant and Bobby Kell is not enough without more, to constitute adequate proof of the necessary authorization. 79 A.L.R.3d, supra, at 1160, § 2[a]. See also id. at §§ 3[c], 5.³ Accordingly, the evidence of the attack was not admissible as circumstantial evidence of appellant's guilt.⁴

The State argues, however, that the evidence was admissible because it showed that Bagwell may have been influenced or intimidated by appellant's family into testifying falsely. The admissible evidence adduced at trial, however, fails to establish anything other than that Bobby Kell and Bagwell had an argument the summer before the trial and that he was charged with simple battery after the argument. There was no evidence to relate that argument with Bagwell's testimony. Accordingly, the evidence "was not relevant to the issue being tried," Lewis v. State, 279 Ga. 69, 74, 608 S.E.2d 602 (2005), and should not have been admitted.

(b) The State did not limit its use of Bobby Kell's alleged attack on Bagwell to raise questions whether her testimony was the result of coercion. The record establishes that the trial court authorized the admission of the evidence because it was "fair to assume" that Bobby Kell's attack on Bagwell was for the purpose of obtaining letters that contained incriminating statements by appellant. Consistent with the purpose for which the trial court allowed the evidence, the prosecutor argued in closing that

You know, [Bobby Kell] told you that he didn't try to touch those letters, he didn't have any contact with [Bagwell]. Well, you know he was lying and you know he was lying based on his actions. This is the defendant's brother who is trying to help the defendant out. In addition to that, you can clearly see that [Bobby Kell] and his family had been tampering with evidence. The reason they did not want these letters to come in is because these letters would have been incriminating to his brother ....

The State had no letters containing incriminating statements from appellant; it had no admissible evidence that Bobby Kell had a fight with Bagwell; and it had no admissible evidence that Bobby Kell fought with Bagwell in order to obtain the letters. Under the totality of the circumstances established by the admissible evidence at trial, there was nothing to support the inference that appellant made damaging statements in his letters to his wife and that his brother assaulted her to prevent those letters from falling into the hands of the prosecution. This evidence had no relevancy to the issue whether appellant murdered the victim and it enabled the jury, as reinforced by the State's closing argument, to engage in the unsupported speculation that appellant made incriminating statements in the letters. Because there was no other...