Scott v. State

• Citation: 582 S.E.2d 510,261 Ga. App. 341
• Decision Date: 21 May 2003
• Docket Number: No. A03A0053.,A03A0053.
• Parties: SCOTT v. The STATE.
• Court: United States Court of Appeals (Georgia)

582 S.E.2d 510

261 Ga. App. 341

SCOTT v. The STATE.

No. A03A0053.

Court of Appeals of Georgia.

May 21, 2003.

Earl D. Clark, Jr., for appellant.

Timothy G. Madison, Dist. Atty., Robin R. Riggs, Asst. Dist. Atty., for appellee.

BARNES, Judge.

Jerry Scott appeals his convictions for aggravated assault and aggravated battery. After Scott was found guilty of two counts of aggravated assault by shooting Bob Scott and Connie Wakefield with a deadly weapon and aggravated battery by shooting Bob Scott in the eye and rendering it useless, he was sentenced to three consecutive twenty-year prison sentences. Upon Scott's motion, however, the trial court merged the aggravated assault, in which Bob Scott was the victim, and the aggravated battery conviction. Scott was then sentenced to two consecutive twenty-year sentences. Following the denial of his motion and amended motion for a new trial, Scott filed this appeal.

Scott contends the trial court erred by overruling his objection to the State's use of his prior inconsistent statements to impeach him and by admitting a statement under the necessity exception to the hearsay rule. He also contends the legally admissible evidence is not sufficient to sustain his conviction. We disagree, and affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Bob Scott, the nephew of defendant Jerry Scott and Mack Scott,¹ was driving a small Dodge Colt, owned by Wakefield, and in which she was a passenger. While driving down the road, according to Bob Scott's trial testimony, he was shot by some white people in a passing car. After the shooting, the car in which Bob Scott was the driver crossed the center line and hit a tractor-trailer.

The evidence also shows that a sheriff's investigator arrived at the scene of the collision between the tractor-trailer and the Dodge Colt. After he found bullet holes in the Colt and shell casings on the highway, the investigator went immediately to the hospital to interview the occupants of the Colt. At the hospital, he interviewed Bob Scott, a victim, within an hour of the accident. According to the investigator, Bob Scott told him that Jerry Scott shot him, and Bob Scott repeated this statement several times.

A bullet hit Bob Scott on the side of his head, and he lost his eye because of the injury. He does not remember anything after he was shot. The next thing he remembers is waking up in the hospital. Also, according to his trial testimony, he did not remember talking with an investigator from the sheriff's department at the hospital and did not remember telling the investigator that his uncles Jerry and Mack Scott were in the car and that Jerry Scott was the one who shot him. Although Bob Scott said he did not remember telling the investigator that Jerry Scott was the one who shot him, he also said that, "if I said it, I can tell you why I said it." He then testified that he had stolen money from his grandmother and because he was upset with the way his uncles were acting toward him, he blamed them for the shooting. Bob Scott also denied remembering an incident in which Jerry Scott threatened him with a gun in a store parking lot. Then, after saying that he did not remember the incident, Bob Scott testified that he "lied" to the police about it.

Bob Scott's passenger, Wakefield, testified that she and Bob Scott were driving down the road when she heard several shots and then Bob Scott fell over in her lap. She put her head down, and when she came to after the shooting, their car was near a tractor-trailer, but although she thought they hit the truck, she did not know what happened. She was wounded in the right knee and left leg. She also testified that, after the shooting, Bob Scott told her that his uncles shot them. He said that Mack Scott drove the car and Jerry Scott did the shooting. She further testified that he never said anything about white people shooting him. Another witness testified that she was driving on the same highway, when shortly before the accident a blue BMW with a light interior, "mag wheels," and a drive-out tag passed her. The only person she saw in the car was the driver, a black man. About five minutes later she saw the accident, but the BMW was not in sight. The driver of the tractor-trailer hit by Bob Scott's car testified that he saw two cars approaching him that were engaged in a lot of "aggressive driving" and one of the cars crossed the centerline and hit his truck.

An employee of a BMW dealership testified that Mack Scott borrowed a blue BMW with a light interior to test drive. Jerry Scott was not with Mack Scott when he borrowed the car. Mack Scott did not return the car the next day as expected, and the car was later retrieved from a parking lot in another town. The car had been damaged. A Georgia Bureau of Investigation crime scene specialist also testified that he checked out the cars involved in this case, and the BMW had a rub pattern that coincided with the damage to the car Bob Scott was driving.

1. Although Scott alleges that the trial court erred by allowing the State to introduce Bob Scott's prior inconsistent statements because the State did not lay a proper foundation, see OCGA § 24-9-83, we find that this allegation has not been preserved for appellate review.

At trial, Scott first stated, "Your honor, I'm going to object to any statement she makes regarding what Bob has told her." After the State responded that the testimony would be a prior...