¶1In the Supreme Court of Georgia
¶2 Decided: February 1, 2021
¶3 S20A1230. KITCHENS v. THE STATE.
¶4 ELLINGTON, Justice.
¶5 A Richmond County jury found Willie Kitchens guilty of two
¶6counts of malice murder, arson, attempted rape and other crimes in
¶7connection with the stabbing deaths of Corey Kemp and Melanie
¶8Troupe. 1 In his sole claim of error, Appellant contends that the trial
¶9 1 Kemp and Troupe were killed on June 23, 2011. A Jefferson County grand jury indicted Appellant for two counts of malice murder, two counts of felony murder, two counts of burglary, armed robbery, two counts of false imprisonment, arson in the first degree, criminal damage to property in the first degree, and the rape of Troupe. After Appellant moved for a change of venue, the trial court transferred the case to Richmond County for purposes of trial. Following a trial in March 2014, the jury found Appellant guilty of both malice murder counts, one count of burglary, armed robbery, two counts of false imprisonment, arson in the first degree, criminal damage to property in the first degree, and attempted rape as a lesser included offense of rape. Appellant was found not guilty of the remaining charges. On the murder counts, the trial court sentenced Appellant to consecutive life sentences without parole. The trial court sentenced Appellant to serve the following prison sentences concurrently with the first murder count: 20 years for burglary, 20 years for arson in the first degree, life for armed robbery, and 10 years for the first count of false imprisonment. The trial court sentenced court erred in allowing a witness to offer hearsay testimony that
¶10Appellant was responsible for the crimes. We affirm.
¶11 Viewed in a light most favorable to the jury’s verdicts, the
¶12evidence at trial showed the following. Shortly after midnight on
¶13June 24, 2011, police and firefighters responded to a fire at Troupe’s
¶14home in Wadley. Troupe lived with her two-year-old son and her
¶15grandmother, both of whom were away on an out-of-town trip when
¶16the fire broke out. Kemp was Troupe’s boyfriend.
¶17 As firefighters forced their way through the locked front door
¶18of the home, they saw what appeared to be blood on the threshold.
¶19They discovered Kemp’s body in the smoke-filled living room. A
¶20later-arriving firefighter noticed smoke coming from under a
¶21bedroom door. When he opened the door, a fire on the mattress
¶22Appellant to serve 10 years for the second count of false imprisonment to be served concurrently with his second life sentence for murder. The trial court also sentenced Appellant to serve 30 years in prison for attempted rape to run consecutive to his second life sentence for murder. The trial court merged the criminal damage to property count with Appellant’s conviction for arson in the first degree. Appellant filed a timely motion for new trial on March 26, 2014, which he amended on January 14, 2019. Following a hearing, the trial court denied Appellant’s amended motion for new trial on April 3, 2020. Appellant filed a timely notice of appeal, and the case was docketed to the August 2020 term of this Court and submitted for decision on the briefs. 2 flared up. Troupe’s body, which was covered in first and second
¶23degree burns, was lying in the bedroom with her hands tied behind
¶24her back with what appeared to be shoelaces and with her shirt
¶25pulled up above her breasts. Both victims were in a state of partial
¶26undress.
¶27 The firefighters observed that an eye of the stove had been left
¶28burning in the kitchen. An arson investigator later determined that
¶29one fire had been ignited on top of sofa cushions placed on Kemp’s
¶30body. A second fire had been started on bedding material lying on
¶31Troupe’s body and the mattress.
¶32 The medical examiner testified that Kemp and Troupe had no
¶33smoke in their lungs and did not die as a result of the fire. Rather,
¶34both died as a result of multiple stab wounds. Kemp had cuts and
¶35stab wounds on his head, neck, chest, and abdomen, as well as
¶36defensive wounds on his arms. His testicles were also bruised.
¶37Troupe had been stabbed 39 times and had injuries to her head,
¶38neck, chest, back, hands, and abdomen.
¶39 A GBI investigator who responded to the crime scene
¶40 3 canvassed the neighborhood for witnesses. He spoke with Appellant,
¶41who lived across the street from Troupe. The investigator testified
¶42that Appellant was nervous, his hands were shaking, and he had
¶43cuts on his hands and scratches on his neck. Appellant agreed to be
¶44interviewed at the police station.
¶45 During the interview, Appellant said that he had never been
¶46inside Troupe’s home, although he had worked in the yard and
¶47installed an air conditioning window unit from the outside.
¶48Appellant initially declined to submit a DNA sample and left the
¶49station. However, he returned about 20 minutes later and agreed to
¶50give the sample if the agents promised not to search his home. After
¶51the agents informed Appellant that they could not make such a
¶52promise, Appellant allowed the sample to be taken.
¶53 Appellant was arrested later that day. Agents photographed
¶54Appellant’s injuries, which consisted of fresh cuts on his hand and
¶55scratches on his face and body. When Appellant was arrested he was
¶56wearing, among other things, a pair of size 10 ½ Reebok brand
¶57tennis shoes.
¶58 4 At the crime scene, agents found bloody footprints that could
¶59not be attributed to the first responders. The footprints were found
¶60on the floor underneath Kemp’s body, on the back steps, and in the
¶61yard leading away from the house. At trial, a GBI forensic examiner
¶62testified that the shoe prints were made by a size 10 ½ Adidas brand
¶63tennis shoe. Two pair of Adidas brand tennis shoes, one pair size 11
¶64and another pair size 10 ½, were recovered from Appellant’s
¶65residence, but the GBI examiner was not able to match those shoes
¶66with the shoe prints found at the crime scene. Video taken at a gas
¶67station on the day of the murder showed Appellant making a
¶68purchase there while wearing Adidas brand tennis shoes. The shoes
¶69that Appellant was seen wearing in the video were never found by
¶70police.
¶71 In a wooded area near Troupe’s home, officers found a child’s
¶72yellow shirt and a white hand cloth lying a few feet apart on a mound
¶73along a path. Troupe’s grandmother testified that the yellow shirt
¶74belonged to Troupe’s son. Officers also found an adult’s green shirt
¶75lying about 20 feet away from the mound. A witness testified that
¶76 5 she had seen Appellant wearing that shirt at a club the week before
¶77the incident.
¶78 Blood stains on the yellow shirt tested positive for DNA that
¶79matched the DNA of Troupe and Kemp. The blood on the green shirt
¶80tested positive for Kemp’s DNA. Appellant’s DNA was found on the
¶81white cloth. In Appellant’s yard, police found a towel, a white and
¶82blue child’s shirt, and a purse. Kemp’s blood was found on the white
¶83towel and the child’s shirt. The purse contained Troupe’s
¶84identification card.
¶85 Several witnesses testified at trial that Appellant and Troupe
¶86were more than acquaintances. Jimmy Williams, Appellant’s friend,
¶87testified that about a year before the murders, Appellant told him
¶88that he was in a romantic relationship with Troupe. According to
¶89Williams, Appellant later informed him that Troupe and Kemp were
¶90“together” in a relationship. Williams characterized Appellant as
¶91having been obsessed with Troupe.
¶92 One of Troupe’s friends testified that Troupe said that
¶93Appellant had been stalking her. The friend noticed that Troupe did
¶94 6 not like being alone and would stay with her when Troupe’s
¶95grandmother was not home. Another witness, Troupe’s co-worker,
¶96testified about an incident that occurred about three months before
¶97the killings. She testified that Troupe pointed a man out to her and
¶98said “that guy keep[s] bothering me. I . . . told him I don’t want him.”
¶99The witness saw that the man “looked like one of the Kitchens boys.”
¶100 Another of Troupe’s friends testified that she spoke with
¶101Troupe on the phone as Troupe’s grandmother packed to go out of
¶102town. The friend said that Troupe told her that “you know who” was
¶103standing outside her home. Based on her other conversations with
¶104Troupe, she understood that Troupe was referring to Appellant.
¶105 The prosecution also offered other-act evidence that showed
¶106that Appellant had choked an ex-girlfriend until she lost
¶107consciousness. In another incident, the ex-girlfriend testified,
¶108Appellant tied her hands behind her back and had sexual
¶109intercourse with her against her will.
¶110 Williams also testified over objection about a statement made
¶111to him by Debra Kitchens, Appellant’s sister. According to Williams,
¶112 7 he and his girlfriend drove to the crime scene between 8:00 a.m. and
¶1139:00 a.m. on the morning after the killings. Debra walked up to the
¶114car and said “Willie did it.”
¶115 Debra testified at trial before Williams did. The prosecutor did
¶116not ask Debra during her testimony whether she told Williams that
¶117Appellant had committed the murders. Nor was she recalled to the
¶118stand after Williams testified. Debra testified to the following: On
¶119the evening of the murders, she sat outside her home with Appellant
¶120and others. Appellant left the premises around 9:00 p.m., and Debra
¶121left about 30 minutes later. Debra returned home around 11:30 p.m.,
¶122at which time she went straight to her bedroom. She testified that
¶123she did not see Appellant. About 10 minutes later, a cousin alerted
¶124her to the fire at Troupe’s home. After coming out of her room, Debra
¶125saw Appellant sitting on the sofa. She went outside and then went
¶126to the scene of the fire with others. She did not see Appellant at the
¶127scene.
¶128 1. Appellant does not dispute the legal sufficiency of the
¶129evidence supporting his convictions. Nevertheless, we have reviewed
¶130 8 the record and conclude that, when viewed in the light most
¶131favorable to the verdicts, the evidence presented at trial and
¶132summarized above was sufficient to authorize a rational jury to find
¶133Appellant guilty beyond a reasonable doubt of the crimes for which
¶134he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B)
¶135(99 SCt 2781, 61 LE2d 560) (1979). 2
¶136 2. Appellant contends that the trial court erred in allowing
¶137Williams to give inadmissible hearsay testimony that Debra told
¶138Williams that Appellant “did it.” The trial court admitted the
¶139testimony over objection after concluding that Debra’s statement fell
¶140within the present sense impression and excited utterance
¶141exceptions to the rule against hearsay. 3 See OCGA § 24-8-803 (1)
¶142(defining present sense impression exception to the rule against
¶143 2 We remind litigants that this Court will end its practice of considering the sufficiency of the evidence sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 SE2d 83) (2020). This Court began assigning cases to the December term on August 3, 2020. 3 Kitchens was tried in 2014 under Georgia’s current Evidence Code. See
¶144Ga. L. 2011, pp. 99, 214, § 101.
¶145 9 hearsay); OCGA § 24-8-803 (2) (defining excited utterance exception
¶146to the rule against hearsay). Appellant argues that the statement
¶147was not a present sense impression or an excited utterance. 4
¶148 Assuming without deciding that the trial court abused its
¶149discretion in admitting the hearsay, any error was harmless. “In
¶150determining whether the error was harmless, we review the record
¶151de novo and weigh the evidence as we would expect reasonable
¶152jurors to have done so. The test for determining nonconstitutional
¶153harmless error is whether it is highly probable that the error did not
¶154contribute to the verdict.” Williams v. State, 302 Ga. 147, 153-154
¶155(3) (805 SE2d 873) (2017) (citation and punctuation omitted).
¶156 The evidence showed that Appellant was obsessed with Troupe
¶157and had been stalking her, and that Troupe saw him outside her
¶158home on the day of the murders as her grandmother prepared to
¶159 4 Appellant also argues that the hearsay was not part of the “res gestae” because the declarant did not speak from personal knowledge. The “res gestae” exception to the rule against hearsay is not recognized under our current Evidence Code and was not a ground for the statement’s admission by the trial court. See, e.g., Johnson v. State, 292 Ga. 785, 789 n.4 (741 SE2d 627) (2013) (“[T]he new Evidence Code does not use the term res gestae.” (punctuation omitted)). 10 leave for an out-of-town trip. Appellant wore size 10 ½ shoes, the
¶160same size of the bloody shoeprints found at the murder scene. A
¶161hand cloth with Appellant’s DNA was found on a trail behind
¶162Troupe’s home near clothing containing the victims’ blood. That
¶163clothing included a green shirt that a witness had seen Appellant
¶164wearing and that forensic evidence showed had been splattered with
¶165Kemp’s blood. A purse containing Troupe’s identification was
¶166recovered from Appellant’s yard along with a towel and a shirt
¶167containing Kemp’s blood. When taken into custody on the day after
¶168the murders, Appellant’s hand was freshly cut and there were
¶169numerous scratches on his body. Troupe’s body was found with her
¶170hands tied behind her back and her shirt pulled up above her
¶171breasts. A former girlfriend of Appellant testified that he bound her
¶172hands behind her back and had sexual intercourse with her against
¶173her will. In light of the strong evidence of Appellant’s guilt, it is
¶174highly probable that any error in admitting Debra’s out-of-court
¶175statement, which did not indicate why she believed Appellant
¶176committed the crimes, did not contribute to the verdicts. See
¶177 11 Hampton v. State, 308 Ga. 797, 802-803 (2) (843 SE2d 542) (2020)
¶178(assuming error in admission of hearsay, the error was harmless
¶179given, among other things, forensic evidence pointing to appellant’s
¶180guilt); Perez v. State, 303 Ga. 188, 190-191 (2) (811 SE2d 331) (2018)
¶181(pretermitting error in the admission of the victim’s hearsay
¶182statement, it was highly probable that the admission did not
¶183contribute to the verdict given the overwhelming evidence of
¶184appellant’s guilt).
¶185 Judgment affirmed. All the Justices concur.
¶186 12