Sheppard v. State
| Decision Date | 21 October 1996 |
| Docket Number | No. S96A1026,S96A1026 |
| Parties | , 96 FCDR 3705, 96 FCDR 3998 SHEPPARD v. The STATE |
| Court | Georgia Supreme Court |
James G. Blanchard, Jr., Fleming, Blanchard, Jackson & Durham, Augusta, for Sheppard.
Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., and Allison Beth Goldberg, Asst. Atty. Gen, Atlanta, for the State.
This appeal is from Keith Brian Sheppard's convictions of felony murder and possession of a firearm during the commission of a crime. 1 He raises procedural and substantive arguments concerning the admission of evidence of prior difficulties between him and his former wife and her family, and contends that the evidence did not authorize his convictions.
1. The State presented evidence at trial to establish the following. Sheppard and Rickerson, the victim, were longtime friends and were related by marriage, having married sisters. Prior to the events leading to this appeal, Sheppard's marriage ended in divorce. When Sheppard's former wife told him, some two years after the divorce, that she intended to date other men, Sheppard began a series of harassing and provoking confrontations with his former wife and her family, including Rickerson. In at least one of those encounters, Sheppard pointed a rifle at his former wife and a group which included Rickerson's daughter. The confrontation in which Sheppard fatally shot Rickerson had its genesis in a series of hang-up telephone calls to Rickerson's home. Rickerson, suspecting that Sheppard was the caller, used a caller identification feature of his telephone to ascertain the area from which the calls originated. Rickerson's brother, dispatched to check the area from which the calls came, reported that he saw Sheppard at a pay phone in that area, repeatedly dialing and hanging up. Rickerson then began a search for Sheppard. When he found Sheppard Rickerson followed him to a convenience store parking lot and angrily confronted him about the hang-up calls. During the confrontation, Sheppard extended a pistol from the window of his truck. Rickerson approached the truck and struck Sheppard in the face. Sheppard fired the pistol at that time, wounding Rickerson in the abdomen and causing him to bleed to death at the scene. The evidence was sufficient to authorize a rational trier of fact to find Sheppard guilty beyond a reasonable doubt of felony murder (aggravated assault) and possession of a firearm during commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Chien-Chyun Lee v. State, 265 Ga. 112, 454 S.E.2d 761 (1995).
2. Sheppard's first complaint about the admission of evidence of prior difficulties is that the hearing pursuant to Uniform Superior Court Rule 31 2 to determine the admissibility of evidence of prior difficulties between Sheppard and Rickerson and between Sheppard and his former wife was conducted on the same day as trial. We find no requirement in the language of the rule that the hearing must be held on a different day. The rule requires only that "[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request, out of the presence of the jury." USCR 31.3(B). The inclusion of the phrase, "out of the presence of the jury," implies that the hearing may occur after the trial has begun and the jury sworn, and this court has found a mid-trial hearing acceptable for purposes of Rule 31. Thaxton v. State, 260 Ga. 141(6), 390 S.E.2d 841 (1990). Sheppard has not contended that the timing of the hearing prejudiced him, and although we reiterate our statement in Thaxton that "it is preferable that the hearing be held before trial," we conclude that the trial court did not err in conducting the hearing immediately before the trial commenced.
3. Sheppard's second complaint about the prior difficulties evidence is that it involved Sheppard and his former wife and could not, therefore, illuminate Sheppard's bent of mind toward Rickerson or serve any other valid evidentiary purpose. We disagree with both Sheppard's characterization of the evidence and his assertion that the evidence did not serve a valid evidentiary purpose.
Although Sheppard is correct that all of the instances of prior difficulties as to which the trial court admitted evidence arose from Sheppard's relationship with his former wife, they did not all involve only Sheppard and his former wife. Of the eight separate instances of prior difficulty as to which evidence was admitted, four of them directly involved Sheppard and his former wife only: when informed that she desired to begin dating other men, Sheppard said he did not know what he would do about it; he called the next day and threatened to cut off child support if she dated other men; some two and one-half weeks later, he followed her to work; and just over three weeks prior to killing Rickerson, Sheppard again intimidated his former wife with his truck, almost running her off the road and threatening physical harm to her boyfriend.
The other four incidents all involved other family members, and three of them involved direct confrontations between Sheppard and Rickerson: two days after being informed that his former wife intended to begin dating, Sheppard called her on the phone, threatening and cursing her and using racial epithets and obscenities, then went to her home where he paced the perimeter of her property, slapping a stick in his hand in a menacing manner until Rickerson confronted him and took the stick; on the day after the stick incident, Sheppard returned to his former wife's home to retrieve some personal belongings, and began cursing and kicking the objects that had been placed for him to take, continuing until Rickerson confronted him and told him to leave because of the language he was using; one week later, Sheppard terrorized his former wife and their daughter, chasing her car with his truck and cursing; and just over one week after that, about six weeks before the killing, Sheppard confronted his former wife at a family gathering at Rickerson's home (a gathering to which Sheppard was not invited), pointing a rifle into her car (which was also occupied by her boyfriend,...
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