Ward v. the State.Kilgore v. the State.

Citation288 Ga. 641,706 S.E.2d 430
Decision Date28 February 2011
Docket NumberNos. S10A1841,S11A0033.,s. S10A1841
PartiesWARDv.The STATE.Kilgorev.The State.
CourtGeorgia Supreme Court


Bruce S. Harvey, K. Julie Hojnacki, Jennifer S. Hanson, Atlanta, for appellant (case no. S10A1841).Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Paige R. Whitaker, Bettieanne C. Hart, Asst. Dist. Attys., Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sheila E. Gallow, Assistant Attorney General, for appellee.THOMPSON, Justice.

Appellants James Ward and Jonathan Kilgore were jointly charged and tried for the malice murder of John Reid and the aggravated assault of Jarvis Winder, as well as various related offenses. A jury found both appellants guilty as charged. They filed separate appeals which were consolidated by the Court.1 Because the trial court excused a juror during ex parte proceedings in the absence of appellants and without appellants' knowledge or consent, we reverse and remand for a new trial.

Kilgore, Ward, and co-indictee Devoka Finch 2 plotted to rob Reid, a known drug dealer. Both Kilgore and Ward were armed with handguns and the three drove to Reid's home ostensibly to purchase marijuana. Reid's friend, Winder, was also present at the house. Kilgore rang the back doorbell and Reid let him in, while the two accomplices concealed themselves outside. Reid walked to a back bedroom and when he returned, gunfire erupted. Reid and Winder retreated to a back room where Reid collapsed and died of a gunshot wound to the back. Winder obtained a shotgun from the bedroom and returned to the front of the house where he and Kilgore exchanged gunfire. Winder escaped to a neighbor's house and the police were called.

Ward and Kilgore fled by car. Finch remained in the area and was stopped and arrested near the crime scene by police officers who responded to the 911 call. Finch was wearing a bullet-proof vest and was carrying handcuffs. He was taken to the police station where he waived his Miranda rights and told the investigating officers that he, Ward, and Kilgore went to Reid's home for the purpose of committing an armed robbery; both Ward and Kilgore were armed with handguns; and Ward shot repeatedly at the victim.

Winder was also interviewed at the police station that evening. While there, he observed Finch and identified him as one of the perpetrators. Winder also identified Kilgore in a subsequent photographic lineup.

Kilgore returned home to his apartment after the shooting. He had Ward's blood on his clothing and was armed with a .22 caliber handgun. He showed the gun to a woman sharing his apartment and told her he had shot a man five times in the back, and that, in the melee, Ward had been shot.

Later that evening, using a fictitious name, Ward received treatment at Grady Hospital for multiple shotgun wounds.

1. Appellants contend that their convictions cannot stand because they are based on the uncorroborated testimony of Finch, their accomplice.

The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that [he] is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.... Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cit.] See also OCGA § 24–4–8. The sufficiency of the corroborating evidence is for the trier of fact to decide. [Cit.]

Baines v. State, 276 Ga. 117, 119(1), 575 S.E.2d 495 (2003).

The independent corroborating evidence in this case was substantial. Finch's testimony implicating Ward and Kilgore was corroborated by the aggravated assault victim who positively identified Kilgore, Kilgore's own admission to the woman in his apartment, evidence that Ward had sustained shotgun wounds on the evening of the crimes, ballistics evidence tying Ward to the crime scene, and the presence of Ward's blood on Kilgore's clothing and in the getaway vehicle. Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Ward and Kilgore guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Kilgore asserts that the trial court erred in denying his motion to quash the indictment alleging that the grand jury heard testimony only from an investigator in the district attorney's office who did not have first hand knowledge of the case. Although we are unable to verify Kilgore's assertions, as secrecy is maintained with regard to grand jury proceedings, see In re Gwinnett County Grand Jury, 284 Ga. 510, 668 S.E.2d 682 (2008); OCGA §§ 15–12–83(b), 15–12–67(b), we find no error.

[W]here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged.

(Emphasis omitted.) Felker v. State, 252 Ga. 351, 366(2)(a), 314 S.E.2d 621 (1984), reiterating the rule in Summers v. State, 63 Ga.App. 445, 449, 11 S.E.2d 409 (1940). See also Smith v. State, 279 Ga. 48, 50(4), 610 S.E.2d 26 (2005) (where a competent witness is sworn and testifies before the grand jury, and the defendant is thereafter found guilty beyond a reasonable doubt, the sufficiency of the evidence to support the indictment is not open to question). It follows that this enumeration of error presents nothing for review.

3. Kilgore also asserts that the trial court erred in denying his motion for severance of defendants alleging that their defenses were antagonistic and the law as to each defendant was confusing to the jury. The burden is on the moving party to make a clear showing of prejudice and a denial of due process in the absence of severance. Moss v. State, 275 Ga. 96, 97(2), 561 S.E.2d 382 (2002).

The following factors must be considered by a trial court when exercising its discretion in regard to a motion to sever in a case in which the death penalty is not sought. (1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court's instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other's rights?” [Cit.]

Howard v. State, 279 Ga. 166, 171(4), 611 S.E.2d 3 (2005). Here, there was no danger of confusion because only two defendants were on trial and the same evidence was applicable to each. Even assuming arguendo that they proffered antagonistic defenses, that factor alone is insufficient to require the grant of a separate trial absent a showing of harm. Id. Kilgore has not carried that burden.

4. Both appellants assert that their constitutional rights under the Georgia Constitution to be present at all critical stages of the proceedings were violated when the trial court dismissed a juror ex parte and in the absence of a waiver from either appellant.

After a lunch recess, which took place at the conclusion of closing arguments for the defense, the court and counsel returned to the courtroom. Neither appellant was present when the court placed the following on the record:

The Court: All right, I need to go on the record.... I think we can do this because it's me without the defendants here.

Kilgore's Counsel: Okay.

The Court: I excused a juror at lunch.... The reason I did was, she's really upset. She is the one that in voir dire approached the bench and talked about having anxiety attacks.


Ward's Counsel: Oh, right. I remember.

Kilgore's Counsel: And she's gone?

The Court: And I let her go. You all weren't here. If you had seen her, you would have agreed. She was upset before, but she said she couldn't—she couldn't even listen to what you said and she couldn't focus.

Thus, counsel were informed about the discharge of the juror after the fact and outside the presence of appellants. No objection was lodged by either defense attorney and the trial resumed with colloquy between counsel and the court concerning limitations on the scope of the State's closing argument and sentencing issues. At the conclusion of that discussion, appellants and the jurors were brought to the courtroom and the trial resumed with closing argument by the State. Nothing further pertaining to the discharge of the juror was placed on the record.

Kilgore's trial counsel testified at the hearing on the motion for new trial that he had no discussion with his client during the pendency of the trial concerning the discharge of the juror. When asked why he did not object to the court's actions, counsel testified that while he would have preferred to voir dire the juror, it was his understanding that she had already left the courthouse and was no longer available. Ward's trial counsel similarly testified that he had no recollection of having discussed the dismissal of the juror with his client during trial.

Embodied within the constitutional right to the courts, see Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, is a criminal defendant's ‘right to be present and see and hear, all the proceedings which are had against him on the trial before the Court.’ (Emphasis omitted.) Pennie v. State, 271 Ga. 419, 421(1), 520 S.E.2d 448 (1999). See also Holsey v. State, 271 Ga. 856, 860(5), 524 S.E.2d 473 (1999). This “is a fundamental right and a foundational aspect of due process of law.” Hampton v. State, 282 Ga. 490, 491(...

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