309 Ga. 240
FINAL COPY
S20A0119. SMITH v. THE STATE.
BOGGS, Justice.
Appellant Olivia Smith challenges her 2017 convictions for
felony murder and possessing a firearm during the commission of a
felony in connection with the shooting death of her husband, Cory
Smith. Appellant argues that the trial court erred in refusing to
allow her expert witness to testify to out-of-court statements made
by some of Appellant’s family members and in excluding documents
reflecting Cory’s prior domestic violence against her. We affirm.1
1 Cory was killed on April 2, 2015. On June 25, 2015, a Gwinnett County
grand jury indicted Appellant for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), aggravated assault (Count 3), and
possession of a firearm during the commission of a felony (Count 4). At a trial
from October 9 to 13, 2017, the jury acquitted Appellant on Count 1 but found
her guilty on all other counts. In November 2017, the trial court sentenced
Appellant to life in prison for felony murder plus five years to be served
consecutively on Count 4. The trial court merged Count 3 with the felony
murder count. On November 7, 2017, Appellant filed a motion for new trial,
which she amended on December 14, 2018, through new counsel. After an
evidentiary hearing, the trial court denied the motion on December 31, 2018.
Appellant filed a timely notice of appeal. The case was docketed in this Court
to the term beginning in December 2019 and submitted for decision on the
briefs.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. Cory was
physically violent toward Appellant in 2010 and again in January
2015. After each incident, Appellant obtained a temporary
protective order (“TPO”) against Cory. After the January 2015
incident, Appellant and Cory separated and were living apart, and
she filed for divorce and obtained a handgun. By April 2, 2015,
however, Appellant and Cory had begun dating again. Two of Cory’s
neighbors testified that they saw Appellant at Cory’s apartment so
often that they believed that Appellant lived there.
On the night of the crimes, Appellant went to Cory’s
apartment, where they argued. Appellant used her handgun to shoot
Cory three times, striking him in the right thigh, next to his left eye,
and behind his left ear, killing him. According to neighbors, the first
shot was followed 30 to 60 seconds later by the second shot, which
was followed 20 to 60 seconds later by the third shot.
More than an hour after the shooting ended, Appellant called
911. She reported that she was having a domestic problem with her
husband, said to “please come,” and then hung up. The first police
officer to arrive found Appellant on Cory’s back patio, smoking a
cigarette. Appellant spontaneously told the officer, “You need to
arrest me,” adding, “He’s dead.” Appellant had no apparent injuries,
and her hair and clothing were not disheveled. Once a backup officer
arrived, the first officer entered the apartment and found Cory dead,
seated on a sofa in the living room with his right arm on the right
armrest and his head leaning on his arm.
Appellant later told the police that when she attempted to
leave Cory’s apartment, he started walking toward her aggressively,
at which point she brandished her handgun, told him that he would
never threaten or hurt her again, and then fired at him once. She
stated that Cory then backed up and screamed expletives, at which
point she started firing again.
At trial, the medical examiner who performed the autopsy on
Cory testified that he was likely seated when he was shot in the
thigh. The medical examiner further testified that the handgun was
approximately three feet away when Cory was shot next to his left
eye and that the handgun was less than one foot away when he was
shot behind his left ear. Moreover, the medical examiner testified
that bullet fragments found in Cory’s lap were likely from the first
gunshot he sustained to his head, and explained that those
fragments entered his body near his left eye and exited through his
open mouth.
The defense theory at trial was justification. Appellant
testified that Cory physically and verbally abused her throughout
their marriage and that he had been sexually violent with her. She
stated that on the night of the shooting, when she got up and
attempted to leave his apartment, he walked toward her and said
that she “wasn’t going anywhere,” and in response, she drew her
handgun. She testified that Cory laughed and said, “What are you
going to do with that?” She said that she “couldn’t stop him,”
explaining that he stepped toward her, lifted his right leg to clear a
coffee table in front of the couch, and threatened to beat her with
her handgun, at which point she fired at him once. She stated that
Cory continued to advance on her while cursing, that she then closed
her eyes and fired at him at least one more time, and that he fell
back on the couch. She added that she did not intend to kill Cory
and that she shot him because she thought he was going to beat,
rape, or kill her. The defense also called Dr. Marti Loring, who
testified that Appellant suffered from mental health issues,
including battered person syndrome (“BPS”). See OCGA § 16-3-21
(d). See also Virger v. State, 305 Ga. 281, 297-304 & n.9 (
824 SE2d
346) (2019) (discussing battered person syndrome and use of expert
testimony regarding BPS in murder cases to assist jury in
evaluating claims of self-defense).
Appellant does not challenge the sufficiency of the evidence to
support her convictions. Nevertheless, in accordance with this
Court’s usual practice in direct appeals in murder cases, we have
reviewed the record and conclude that, when properly viewed in the
light most favorable to the jury’s verdicts, the evidence presented at
trial and summarized above was sufficient to authorize a rational
jury to find Appellant guilty beyond a reasonable doubt of the crimes
for which she was convicted. See Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (
99 SCt 2781, 61 LE2d 560) (1979). See also Hoffler v.
State,
292 Ga. 537, 539 (
739 SE2d 362) (2013) (“Issues of witness
credibility and the existence of justification are for the jury to
determine, and it is free to reject a defendant’s claim that [s]he acted
in self-defense.”).
2. Appellant contends that the trial court erred in refusing to
permit her expert witness, Dr. Loring, to testify to statements that
some of Appellant’s family members made to Dr. Loring that Dr.
Loring considered in determining whether Appellant suffered from
mental health issues, including BPS. Appellant argues that the
statements were admissible under OCGA § 24-8-803 (4) (hereinafter
“Rule 803 (4)”) because they were made for the purposes of medical
diagnosis or treatment, and under OCGA § 24-7-703 (hereinafter
“Rule 703”) because Dr. Loring relied on those statements in
concluding that Appellant suffered from BPS. We conclude that
Appellant has failed to demonstrate reversible error in this respect.
(a) During Appellant’s case-in-chief, her counsel called Dr.
Loring, who has a doctorate in psychology and a license in clinical
social work, to testify as an expert in abuse and trauma. Specifically,
Dr. Loring testified about post-traumatic stress disorder and BPS,
how Appellant developed these mental health issues, and how they
affected her prior to and on the day of the shooting. Dr. Loring
testified at length about the testing she performed on Appellant, as
well as conversations she had with Appellant prior to making any
diagnosis. The State did not object to any of this testimony until
counsel asked Dr. Loring to describe any acts of sexual abuse
Appellant had disclosed. The State then objected and argued that
the defendant’s statements to Dr. Loring were all self-serving
hearsay. Defense counsel responded that all of the conversations Dr.
Loring had with the defendant were admissible under Rule 803 (4).
Counsel also informed the trial court that he would ask Dr. Loring
about her conversations with five of Appellant’s family members
that she interviewed, arguing that those were also admissible under
Rules 803 (4) and 703. During the exchange with the trial court, the
following occurred:
COURT: Are you going to have [Dr. Loring] testify
to what a bunch [of the other people] said?
[COUNSEL]: Yes.
COURT: Statements that they made?
[COUNSEL]: Yes.
COURT: About what?
[COUNSEL]: Her history, her medical history.
COURT: And what rule of evidence is it you seek to
admit this under?
[COUNSEL]: Statements made for [the] purposes of
[a] medical diagnosis.
COURT: Well, this is not a medical doctor and she is
not making a medical diagnosis.
The State agreed with the trial court and argued that although
there was a diagnosis in a clinical sense, because Dr. Loring was
“retained by the defense with an eye toward litigation,” all of the
statements made to Dr. Loring lacked sufficient indicia of
trustworthiness. The trial court then sought the following
clarification:
COURT: [The State’s] objection is, is that these are
not statements made [for a] medical diagnosis or medical
treatment; these are statements made for the purposes of
defending a murder charge . . . [a]nd that it takes it
outside the ambit of the statute. Is that your argument so
far . . . ?
[STATE]: Yes, sir. That’s exactly it.
COURT: All right. That’s his argument.
Following additional argument by the parties, the trial court
permitted Appellant’s counsel to proffer – outside the presence of the
jury – the details of the statements Appellant’s family members
made to Dr. Loring, and Dr. Loring testified as follows:
(1) Appellant’s father indicated that Appellant “seemed depressed,
terrified of Cory, would stare down at the floor when he would
become angry and rageful [sic], stopped eating properly and seemed
exhausted, not able to sleep”; (2) Appellant’s sister Jessica
“described seeing bruises on [Appellant], fingerprint bruises, like
bruises on her arms, and she saw leg bruises as well and was told
. . . by [Appellant] about [Appellant] being choked by Cory”;
(3) Appellant’s sister Jennifer “observed Cory calling [Appellant]
demeaning names . . . [a]nd she saw . . . neck, wrist, arm[,] and back
bruises on [Appellant],” and “witnessed Cory shoving [Appellant]
into a wall while she was holding her son”; (4) Appellant’s daughter
Alexis stated “[t]hat her father would yell at her mother, that her
mother was scared of her father and would cry,” and that “she heard
noises of her mother being slammed into the wall”; and
(5) Appellant’s mother indicated “[t]hat she had seen bruises, heard
Cory yelling at [Appellant], saw Cory become enraged and give
[Appellant] a look that caused [Appellant] to look down and stop
talking,” and that “they moved to Georgia where she witnessed Cory
trying to isolate [Appellant] from her family.”
The parties and the trial court then continued with a long
debate concerning the purpose of, and case law concerning, Rules
803 (4) and 703. During this exchange, the trial court noted:
There’s nothing about the nature of the relationship
between the declarants and the defendant that causes me
any trouble whatsoever. You know, I think all those
people could legitimately make statements to medical
personnel that could be made for the purposes of
diagnosis, so I would not exclude them based on their
position relative to the defendant. Okay. So I want to
make sure y’all understand. I’ve decided that issue.
The prosecutor then urged the trial court to find the statements
inadmissible on the basis that they were made in anticipation of
litigation and not for the purposes of a medical diagnosis. The trial
court agreed and then ruled as follows:
I don’t ― you know, this is one of those situations
where, because we got an evidence code that’s less than
four years old, we don’t have a lot of case law to support
the issue and some of the decisions that have to be made.
But I got to make a decision, in any event, and that’s what
I’ll do.
I find that the statements made by third parties as
outlined by the defense and Dr. Loring in this case do not
qualify as statements made for the purpose of medical
diagnosis or treatment. And for that reason, I find that
they do not fall under the exception to the hearsay rule
found in OCGA [§] 24-8-803 (4).
Following from that finding, I rule that although Dr.
Loring is certainly able to consider those statements in
her own right in making her opinions and arriving at her
conclusions, even though they would be inadmissible
hearsay, she can still obviously consider them.
I believe that she should be allowed, if you wish,
[defense counsel], for her to testify that she in fact talked
to all those people. She can testify that she got
information from those people that she used in arriving
at her opinion. I believe she could also qualify that by, if
she has ― if she has an opinion on how central those
things were to her opinion, she can state that. But what
she cannot do is outline specifically what those third
parties told her.
(b) We review the trial court’s ruling that the evidence was not
admissible under Rule 803 (4) for abuse of discretion. See Wade v.
State, 304 Ga. 5, 12 (5) (
815 SE2d 875) (2018).
Hearsay is an out-of-court statement that a party offers into
evidence to prove the truth of the matter asserted therein, and such
a statement generally is inadmissible at trial. See OCGA §§ 24-8-
801 (c), 24-8-802. However, Rule 803 (4) provides:
The following shall not be excluded by the hearsay rule,
even though the declarant is available as a witness: . . .
Statements for purposes of medical diagnosis or
treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external
source thereof insofar as reasonably pertinent to
diagnosis or treatment[.]
(Emphasis in original.)
As we explained in State v. Almanza, 304 Ga. 553 (
820 SE2d 1)
(2018), “the justification for the medical diagnosis and treatment
hearsay exception is the underlying guarantee of trustworthiness of
statements made for purposes of diagnosis or treatment.”
Id. at 559
(3) (citation and punctuation omitted).
[S]tatements made to a provider for the purpose of
diagnosis or treatment may be admissible because the
self-interested motivation of the declarant in wanting
effective diagnosis or treatment (for themselves or others
about whose health they care) makes it more likely that
the statements made for that purpose are true.
Id. at 561-562 (3) (citation and footnote omitted). In determining
whether a statement is admissible under Rule 803 (4), we ask
whether: (1) the declarant’s motive in making the statement is
consistent with the purposes of treatment; and (2) the content of the
statement is the type reasonably relied upon by a physician in
treatment or diagnosis. See Almanza,
304 Ga. at 561 (3).
“[A]ssessing the validity of the declarant’s ‘motive’ is critical” under
this test.
Id. at 562 (3).
Because OCGA § 24-8-803 (4) “materially mirrors Federal Rule
[of Evidence] 803 (4)” and this Court has not yet decided the issue
presented here, “we look to federal appellate precedent” for
guidance. Almanza, 304 Ga. at 558 (2). For starters, the federal
advisory committee notes to Federal Rule of Evidence 803 (4) states:
Conventional doctrine has excluded from the hearsay
exception, as not within its guarantee of truthfulness,
statements to a physician consulted only for the purpose
of enabling him to testify. While these statements were
not admissible as substantive evidence, the expert was
allowed to state the basis of his opinion, including
statements of this kind. The distinction thus called for
was one most unlikely to be made by juries. The rule
accordingly rejects the limitation.
Fed. R. Evid. 803 (4), Advisory Committee Note (emphasis added).2
Moreover, the federal appellate courts that have addressed the
specific issue in this case have concluded that statements made for
medical purposes to experts hired in anticipation of litigation
generally are admissible under Rule 803 (4). For example, in United
States v. Iron Shell, 633 F2d 77 (8th Cir. 1980), the defendant
challenged the testimony of one of the government’s experts
concerning statements made to the expert by the victim. The
defendant argued, among other things, that because the government
employed the doctor for the purposes of testifying as an expert at
trial, any statements made to him were not trustworthy under
Federal Rule 803 (4). The Eighth Circuit disagreed, explaining the
change in the admissibility of statements under Rule 803 (4) as
follows:
It is clear that Rule 803 (4) significantly liberalized prior
practice concerning admissibility of statements made for
purposes of medical diagnosis or treatment. See Notes of
Advisory Committee on Proposed Rules, Rule 803, 28
2 “[A]lthough Advisory Committee Notes are not binding precedent and
cannot change the plain meaning of the law or rules, they are highly persuasive
. . . .” Almanza, 304 Ga. at 559 n.6 (citations omitted).
U.S.C.A. p. 585-86 (West 1975); 11 Moore’s Federal
Practice § 803 (4) (1976); 4 Weinstein & Berger,
Weinstein’s Evidence 803-125 (1979). Rule 803 (4) admits
three types of statements: (1) medical history, (2) past or
present sensations, and (3) inception or general cause of
the disease or injury. All three types are admissible where
they are “reasonably pertinent to diagnosis or treatment.”
The rule changed prior law in two main points. First, the
rule adopted an expansive approach by allowing
statements concerning past symptoms and those which
related to the cause of the injury. Second, the rule
abolished the distinction between the doctor who is
consulted for the purpose of treatment and an
examination for the purpose of diagnosis only; the latter
usually refers to a doctor who is consulted only in order to
testify as a witness.
Id. at 83. The court noted that nothing in the record suggested that
the victim’s motive in answering the doctor’s questions was “for any
reason other than promoting treatment.” Id. at 84. See also United
States v. Whitted, 11 F3d 782, 787 (8th Cir. 1993) (“Rule 803 (4)
applies to statements made for the sole purpose of diagnosis, which
includes statements made to a doctor who is consulted only to testify
as an expert witness.”); United States v. Iron Thunder, 714 F2d 765
(8th Cir. 1983) (holding that rape victim’s statements to non-
treating physician were admissible under Rule 803 (4)).
Similarly, in Morgan v. Foretich, 846 F2d 941, 948 (4th Cir.
1988), a civil case, the defense objected to the admission of the
assault victim’s statements to the plaintiff’s expert because the
expert was consulted in order to testify as a witness rather than for
treatment. The Fourth Circuit agreed with the reasoning set forth
in Iron Shell and held that the statements were admissible under
Rule 803 (4). Morgan, 846 F2d at 950. See also United States v.
Farley, 992 F2d 1122, 1125 (10th Cir. 1993) (holding that comments
made by child sex abuse victim to government’s psychologist were
admissible under Rule 803 (4)); O’Gee v. Dobbs Houses, Inc., 570 F2d
1084, 1089 (IV) (2d Cir. 1978) (holding that, though defense’s expert
had not treated plaintiff and was retained for purposes of litigation,
Rule 803 (4) permitted admission of plaintiff’s statements to the
expert concerning her condition, so long as they were relied on by
doctor in formulating his opinion).
Although we view these cases as instructive, we have two main
reservations about them. First, even though in Almanza we adopted
the Eighth Circuit’s two-part Rule 803 (4) admissibility test, which
originated in Iron Shell, we note that it is unclear the extent to
which the federal courts that have had occasion to apply that test
have meaningfully focused on whether the declarants’ motives in
making the statements were consistent with the purposes of
diagnosis or treatment, and that assessment is the “critical” first
step in our Rule 803 (4) analysis. See Almanza, 304 Ga. at 562, 563
n.11 (explaining that “assessing the validity of the declarant’s
‘motive’ is critical” under this test and concluding that “fail[ing] to
focus on the essential element of motive, . . . is a mistake”). And
while we remain convinced that the Rule 803 (4) test we adopted in
Almanza is the right test and that statements made to an expert
consulted to testify at trial are not categorically excluded under Rule
803 (4), we view the aforementioned cases unpersuasive to the
extent that they suggest that the question of admissibility under
Rule 803 (4) is anything other than a case-specific, fact-intensive
inquiry.
Secondly, and more critically, all of the federal criminal cases
discussed above were decided prior to the United States Supreme
Court’s landmark decision in Crawford v. Washington, 541 U. S. 36
(
124 SCt 1354, 158 LE2d 177) (2004), in which the Court held that
the admission at trial of the defendant’s wife’s pretrial statement to
police implicating her husband in the charged crime violated the
Sixth Amendment’s Confrontation Clause because that statement
was testimonial and the defendant’s wife did not testify at trial and
thus was not subject to cross-examination. See
id. at 68. Therefore,
none of the courts deciding the cases cited above had occasion to
consider whether admitting the non-testifying declarants’
statements to medical professionals consulted solely to testify at
trial violated the defendants’ Sixth Amendment right to confront
their accusers. And while we recognize the importance of that
question, we need not decide it here because Appellant sought to
have the statements at issue admitted at trial and the State has no
confrontation rights. State v. Hamilton,
308 Ga. 116, 120 n.5 (
839
SE2d 560) (2020) (noting that “Confrontation Clause protections are
not available for the State to assert”).
(c) In any event, pretermitting whether the trial court erred in
ruling that Appellant’s family members’ statements were
inadmissible under Rule 803 (4), we conclude that any such error
was harmless. See Kirby v. State, 304 Ga. 472, 478 (819 SE2d468)
(2018) (“The test for determining nonconstitutional harmless error
is whether it is highly probable that the error did not contribute to
the verdict.” (Citation and punctuation omitted.)). See also OCGA
§ 24-1-103 (a) (“Error shall not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party
is affected[.]”). In considering whether a trial court’s evidentiary
error harmed an appellant, “we weigh the evidence as we would
expect reasonable jurors to have done so, as opposed to assuming
that they took the most pro-guilt possible view of every bit of
evidence in the case.” Boothe v. State,
293 Ga. 285, 289 (
745 SE2d
594) (2013).
Even though the trial court precluded Appellant from offering
through Dr. Loring statements made by five of Appellant’s family
members that indicated that Cory had abused Appellant on multiple
prior occasions, she was allowed to offer a substantial amount of
evidence that clearly showed Cory had abused her quite severely on
numerous occasions in the years prior to the shooting. That evidence
included, among other things: (1) the domestic-violence TPOs
Appellant obtained against Cory after he abused her in 2010 and
2015; (2) Appellant’s testimony that throughout their nearly 14
years as a couple, Cory had on many occasions abused her
emotionally, physically, and sexually; (3) photographs taken in 2015
of bruises on Appellant’s, which she testified were the product of a
violent attack Cory perpetrated against her; (4) Dr. Loring’s
testimony that Appellant suffered from BPS and other mental
health issues and that she felt “fear and terror” in her relationship
with Cory, all brought about by the emotional, physical, and sexual
abuse that Cory had inflicted on her; and (5) Dr. Loring’s testimony
that, in summary, many individuals suffering from the same mental
health issues with which she diagnosed Appellant often have
significantly impaired decision-making abilities (especially when
dealing with stressors brought on by their abuser) and may
therefore react to their abusers’ advances or threats in a panicked,
impulsive fashion. As such, the jury was presented with a
substantial amount of evidence from which it could have concluded
that Appellant suffered from BPS and that her actions on the night
in question were the product of her mental state.3
Moreover, at trial the State presented evidence that
substantially undermined Appellant’s BPS-based justification
defense. Significantly, the forensic evidence showed that Appellant
likely shot and killed Cory while he was seated on his couch with his
arm up on an armrest, and that the second bullet that struck him in
the head was fired from less than one foot away. That evidence was
inconsistent with Appellant’s pretrial statement that Cory backed
up after she fired the first shot. Most significantly, two of Cory’s
neighbors testified that they heard three gunshots and that the first
3 As proffered, Appellant’s family members’ statements likely would not
have significantly improved the probability that the jury would have accepted
her BPS-based justification defense. The information Appellant’s family
members provided Dr. Loring was largely cumulative of the evidence of abuse
Appellant was allowed to offer, and to the extent that information could have
served to corroborate Appellant’s testimony as to the abuse she suffered at
Cory’s hands, there was little need for additional corroboration in light of the
aforementioned evidence of abuse and the State’s concessions that Cory had
abused Appellant on at least two prior occasions.
gunshot was followed 30 to 60 seconds later by the second shot,
which was followed 20 to 60 seconds later by the third shot. Given
the forensic evidence and that timeline, the jury had ample reason
to reject Appellant’s justification defense. Therefore, in light of the
substantial evidence admitted at trial showing that Cory had abused
Appellant quite severely on numerous occasions, and given that
other properly admitted evidence significantly undermined
Appellant’s justification defense, we conclude that it is highly
probable that any error in the trial court’s exclusion of the
statements at issue did not contribute to the verdicts. See Kirby, 304
Ga. at 478. Accordingly, any such error was harmless.4
3. For the first time on appeal, Appellant argues that the
aforementioned statements made to Dr. Loring were also admissible
as prior consistent statements under OCGA §§ 24-6-613 (c) and 24-
4 We also conclude that, pretermitting whether the trial court erred in
finding that the statements at issue were inadmissible under Rule 703 for the
sole reason that they were inadmissible under Rule 803 (4), any such error was
equally harmless for the reasons stated above.
8-801 (d) (1) (A).5 Because Appellant did not raise this claim in the
trial court, we review it only for plain error, which requires
Appellant to show that: (1) there was an error that she did not
affirmatively waive; (2) the error was obvious; (3) the error affected
her substantial rights, which means that she must demonstrate that
it likely affected the outcome of the proceedings; and (4) the error
seriously affected the fairness, integrity, or public reputation of
judicial proceedings. State v. Kelly, 290 Ga. 29, 33 (2) (a) (
718 SE2d
232) (2011). See also OCGA § 24-1-103 (d).
5 OCGA § 24-6-613 (c) says:
A prior consistent statement shall be admissible to
rehabilitate a witness if the prior consistent statement logically
rebuts an attack made on the witness’s credibility. A general
attack on a witness’s credibility with evidence offered under Code
Section 24-6-608 or 24-6-609 shall not permit rehabilitation under
this subsection. If a prior consistent statement is offered to rebut
an express or implied charge against the witness of recent
fabrication or improper influence or motive, the prior consistent
statement shall have been made before the alleged recent
fabrication or improper influence or motive arose.
OCGA § 24-8-801 (d) (1) (A) says:
An out-of-court statement shall not be hearsay if the
declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is
admissible as a prior inconsistent statement or a prior consistent
statement under Code Section 24-6-613 or is otherwise admissible
under this chapter.
Under our Evidence Code, a witness’ prior consistent out-of-
court statement is admissible to rehabilitate that witness if the
statement logically rebuts an attack made on the witness’ credibility
and the witness testifies at trial and is subject to cross-examination.
See OCGA §§ 24-6-613 (c), 24-8-801 (d) (1) (A).
Here, even if the statements at issue could have served to rebut
Detective Matthew Kenck’s testimony that Appellant’s pretrial
account of Cory’s behavior prior to the shooting was not consistent
with the physical evidence and that he was unable to gain access to
photographs showing that Cory had abused Appellant on a prior
occasion, those statements were not admissible as prior consistent
statements because Appellant’s family members did not testify at
trial. See OCGA §§ 24-6-613 (c), 24-8-801 (d) (1) (A). Accordingly,
Appellant has failed to show that the trial court plainly erred in this
respect.
4. Appellant contends that the trial court erred in excluding
the petitions for TPOs against Cory that she filed in 2010 and 2015
and a written statement that she gave to the United States Naval
Criminal Investigative Service (“NCIS”) in 2010 concerning abuse
she suffered at Cory’s hands. She argues that Detective Kenck
attacked her credibility by insinuating that she lied to him during
her pretrial interview about when she fired at Cory and that she had
photographs showing that Cory had abused her on prior occasions.
According to Appellant, this testimony by Detective Kenck made the
TPO petitions and her statement to NCIS admissible as prior
consistent statements under OCGA §§ 24-6-613 (c) and 24-8-801 (d)
(1) (A). We disagree.6
At trial, Detective Kenck testified in relevant part that:
(1) Appellant’s description, during her pretrial interview, of Cory’s
actions prior to her shooting him was not consistent with the
physical evidence; and (2) although Appellant told him during her
pretrial interview that she had photographs of bruises Cory had
given her on prior occasions, he was unable to access those
6 Appellant also contends that the trial court erred in preventing her
from introducing the TPOs themselves. However, the record shows that the
TPOs were admitted into evidence at trial.
photographs.7 At most, then, Detective Kenck’s testimony called into
question Appellant’s pretrial account of Cory’s actions on the night
of the shooting and her claim that she had photographs proving that
Cory had previously abused her.
OCGA § 24-6-613 (c) provides that for a witness’ prior
consistent statement to be admissible to rebut an express or implied
charge of ― among other things ― recent fabrication by the witness,
the witness’ prior consistent statement must “logically rebut” that
charge. We conclude that Appellant’s prior TPO petitions and NCIS
statement would not have logically rebutted any suggestion by
Detective Kenck that Appellant’s description of Cory’s actions just
before the shooting did not jive with the physical evidence. And
assuming for the sake of argument that Detective Kenck’s testimony
that he could not access the photographs at issue implied that
Appellant fabricated her claim that Cory had abused her on prior
7 As to the photographs, Detective Kenck testified that: (1) Appellant
claimed they were on her cell phone, but he could not access them because
Appellant did not give him the correct password; and (2) Appellant also
claimed that her divorce attorney had those photographs, but that the attorney
did not give him access to them.
occasions and that Appellant’s TPO petitions and NCIS statement
could have logically rebutted that implication, we hold that any
error in not admitting the documents was harmless because as
discussed above, at trial, the TPOs themselves and the photographs
at issue were admitted into evidence, the State conceded during its
opening statement and closing argument that Cory had abused
Appellant prior to the night in question, Dr. Loring testified that
Appellant suffered from BPS as a result of the abuse that Cory
inflicted upon her, and Appellant testified in detail to the events
that formed the basis of the TPO petitions and NCIS statement. In
that light, we hold that it is highly probable that any such error did
not contribute to the verdicts. See Kirby, 304 Ga. at 478.8 Finally,
we have also considered collectively any trial court errors in this
case, and conclude that the cumulative prejudicial effect of any such
errors does not require a new trial. See State v. Lane,
308 Ga. 10, 17
8 Appellant also appears to argue, for the first time on appeal, that the
same documents were admissible under another hearsay exception (such as
OCGA § 24-8-803 (8)). To the extent she does so, any such error is harmless for
the reasons stated above.
(838 SE2d 808) (2020) (adopting the cumulative error rule).
Judgment affirmed. All the Justices concur.
DECIDED JUNE 29, 2020.
Murder. Gwinnett Superior Court. Before Judge Tom Davis.
Wayne L. Burnaine, for appellant.
Daniel J. Porter, District Attorney, Lee F. Tittsworth, Daniel
Sanmiguel, Elizabeth H. Brock, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Matthew D. O’Brien, Assistant Attorney General, for
appellee.
