308 Ga. 194 FINAL COPY
S19A1580. KILPATRICK v. THE STATE.
BENHAM, Justice.
Appellant Charles Richard Kilpatrick, Jr., appeals his
convictions related to the shooting death of Joseph Henry Wilder. 1
For the reasons set forth below, we affirm.
Viewed in a light most favorable to upholding the jury’s
verdicts of guilty, the trial record shows as follows. On August 7,
1998, Appellant and Wilder were driving westbound on I-20 in their
respective vehicles near the Thornton Road exit in Douglas County.
1 The crimes occurred on August 7, 1998. On October 28, 2016, a Douglas
County grand jury indicted Appellant on charges of malice murder, felony murder, and two counts of aggravated assault. Appellant was tried before a jury from November 27 to December 7, 2017. The jury returned verdicts of guilty on all charges, and the trial court sentenced Appellant to serve life in prison for malice murder. The felony murder count was vacated as a matter of law, and the aggravated assault charges merged into the malice murder count for sentencing purposes. Appellant moved for a new trial on December 7, 2017, and amended the motion for new trial on February 28, 2019. The trial court heard the motion for new trial as amended on March 7, 2019, and denied it on March 27. On April 16, 2019, Appellant filed a notice of appeal. Upon receipt of the record from the trial court, the appeal was docketed to the August 2019 term of this Court and submitted for decision on the briefs. Appellant’s friend, Marcuss Herndon, was a passenger in
Appellant’s vehicle.2
Witnesses testified that Appellant’s and Wilder’s vehicles were
bumping into each other on the highway. Appellant and Herndon
testified that Wilder’s vehicle hit the rear of Appellant’s vehicle
twice. The two vehicles ultimately ended up stopped in the
emergency lane with Wilder’s vehicle, which was a maroon SUV,
parked behind Appellant’s vehicle, which was a dark-colored truck.
Witnesses stated they saw Appellant, who was positioned behind the
back of his truck and in front of Wilder’s forward-facing SUV, point
a gun at and fire it several times into Wilder’s vehicle, all while
calmly walking backwards toward his truck. Herndon, who
remained in the passenger seat of Appellant’s vehicle, testified that
he heard gunshots, but that he did not actually see the shooting.
Appellant reentered his vehicle and drove away.
Passing motorists, who saw the shooting from the road and
2 Herndon testified that Appellant was driving him home that night after
the two had spent the afternoon playing golf. The two had made several stops along the way, including stopping so Appellant could buy marijuana. 2 then circled back to the scene, stopped to check on Wilder, who was
deceased. The doors to Wilder’s vehicle were locked, suggesting he
remained inside his vehicle during the shooting. The driver’s side
window of Wilder’s vehicle was shot out and there was a bullet hole
through the front windshield. Wilder sustained seven bullet wounds
to his chest and abdomen. The passing motorists, who stopped to
check on Wilder, told police that they did not see a firearm inside
Wilder’s vehicle or on his body. Police did not find a firearm on or
near Wilder. At the scene, investigators collected six .45-caliber
shell casings which were later determined by a ballistics expert to
have been fired from the same .45-caliber firearm possibly made by
several manufacturers, including Llama.
The case went cold for almost two decades until the
investigation was renewed in 2015 when the girlfriend of
Appellant’s brother, Jeff Kilpatrick, came forward to police with
information about Wilder’s death. As part of the renewed
investigation, the police obtained warrants to tap the mobile phone
numbers of Appellant and his brother Jeff. In addition, the police
3 sent a fabricated news article3 to Appellant and Jeff in order to elicit
inculpatory information about Wilder’s murder while the brothers
were subject to the wiretap warrants. During the renewed
investigation, the police were also able to match a bumper left at the
crime scene in 1998 to the vehicle Appellant drove in 1998, which
vehicle Appellant had sold in 2000 and which authorities were able
to locate in Missouri with its most recent owner. Based on the
wiretaps and other evidence revealed by the renewed and prior
investigations, police arrested Appellant.
Immediately after his arrest, Appellant told police he shot
Wilder in self-defense. At trial, Appellant testified that he used his
.45-caliber Llama handgun to shoot at Wilder.4 He testified that
upon pulling over on the side of the road into the emergency lane,
3 The fabricated news article generally stated that new technology was
helping authorities solve Wilder’s cold case. The article featured a real picture of appellant’s truck, a 1998 sketch of the suspect based on descriptions from passing motorists who saw the shooting that night, and an age-progression sketch based on Jeff’s driver’s license photo. 4 Jeff testified that, soon after the shooting, Appellant gave the gun to
their father, who was deceased by the time of trial. The State introduced evidence showing that, on October 10, 1998, their father made a report to the Cobb County Police Department that the gun had been stolen. 4 Wilder exited his vehicle, pulled out a gun, and began running
toward appellant’s truck. Appellant, who was still inside his truck,
testified he drove further down the highway, and pulled over into
the emergency lane a second time. At that point, he exited his
vehicle and put his gun, which he usually kept in his truck, inside
his pocket. Appellant testified he intended to inspect the damage to
his truck; however, Wilder drove up once again and sped towards
him. Appellant testified that he believed Wilder was going to hit
him with his SUV, but Wilder stopped the vehicle before reaching
Appellant. Appellant testified that he next saw Wilder start to reach
for something, so Appellant pulled out his gun and fired it at Wilder.
Appellant testified he was in fear for his life such that he felt
compelled to shoot Wilder. Appellant admitted, however, that
Wilder never shot at him and that Wilder’s vehicle was fully stopped
before appellant opened fire.
1. Appellant challenges the sufficiency of the evidence by
arguing that the State failed to meet its burden of disproving his
defense of justification.
5 To establish justification for killing another, a defendant must show the circumstances were such as to excite the fears of a reasonable person that his safety was in danger. It is for the jury to decide whether the circumstances were sufficient to justify the existence of such reasonable fear and to accept a defendant’s claim of self-defense.
(Citations and punctuation omitted.) Howard v. State, 298 Ga. 396
(1) (782 SE2d 255) (2016). See also Stroud v. State, 301 Ga. 807 (I)
(804 SE2d 418) (2017). Here, the jury considered evidence in
support of appellant’s justification defense, namely Appellant’s
direct testimony at trial, as well as the State’s evidence. The jury
was free to reject Appellant’s claim that he acted in self-defense.
Howard, 298 Ga. at 398. The evidence, as described above, was
otherwise sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Appellant was guilty of the crime for
which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Appellant alleges the trial court erred when it granted the
State’s motion in limine to exclude his expert witness. Before trial,
appellant submitted the expert’s resume, a single-paragraph
6 statement summarizing the expert’s proposed testimony,5 and a few
graphs appearing to show the trajectory of the bullets that killed
Wilder. The trial court refused to allow the expert to testify because
it did not believe the expert’s testimony would be helpful to the jury.
There was no abuse of discretion.
[E]xpert testimony is admissible where the expert’s conclusion is beyond the ken of the average layman. But where jurors can take the same elements and constituent factors which guide the expert to his conclusions and from them alone make an equally intelligent judgment of their own, then expert opinion testimony is not admissible.
(Citation and punctuation omitted.) Mosby v. State, 300 Ga. 450 (2)
(796 SE2d 277) (2017).6 See also Weems v. State, 268 Ga. 142 (3)
5 The expert’s summary provided in pertinent part:
I will provide testimony . . . on matters pertaining to the use of force, fight-flight-freeze responses, and human physiology during high stress and life threatening situations. I will share my knowledge of the above areas in relation to the evidence found at the scene of the incident and witness statements regarding the event. 6 It must be noted that
[a]lthough Georgia’s [current] Evidence Code is applicable to the trial of this case, the evidentiary requirements relating to the admissibility of expert opinion testimony in a criminal case under the current Evidence Code (OCGA § 24-7-707) are nearly identical to those that applied under the former Evidence Code (OCGA § 24- 9-67). Accordingly, it is appropriate to rely, as we do in this case,
7 (485 SE2d 767) (1997). Here, it was not beyond the ken of the jury
to determine whether Appellant was justified in shooting Wilder
given the evidence presented at trial.7 Accordingly, this allegation
of error cannot be sustained.
3. Appellant contends the trial court erred when it excluded
evidence that Wilder was a member of a motorcycle gang. Appellant
argues that because he learned of Wilder’s membership in a gang
days after the shooting, the evidence should have been admitted at
trial so that he could explain to the jury his longtime failure to come
forward before his arrest. The trial court excluded the evidence
because it was irrelevant to Appellant’s justification defense
inasmuch as the two men did not know each other at the time of the
shooting, and because the trial court believed the defense was
prohibited from commenting on the reasons why Appellant failed to
on decisions under the old Code. (Citation omitted.) Mosby, at 453, n. 2. 7 For example, at the motion for new trial hearing, the expert testified
that the “shooter” was moving away from Wilder’s vehicle, or “the perceived threat,” and toward his own vehicle while shooting. This is the same information the lay witnesses, who saw the shooting, provided to the jury when they testified that Appellant walked calmly backwards toward his truck while shooting at Wilder’s vehicle. 8 come forward prior to his arrest.
We agree that the victim’s alleged membership in a motorcycle
gang, unknown to Appellant at the time of the shooting, was not
relevant or admissible as to Appellant’s justification defense and so
the trial court did not err in that respect. See OCGA §§ 24-4-402, 24-
4-404 (a). However, with the adoption of the current Evidence Code,
there is no longer a categorical rule against the prosecution’s
admitting evidence of a defendant’s pre-arrest silence or failure to
come forward. See State v. Orr, 305 Ga. 729 (3) (827 SE2d 892)
(2019).8 The defense has never been precluded from introducing
such evidence. Accordingly, the trial court was not required to
exclude the evidence merely because the defense wanted to use it to
explain Appellant’s longtime failure to come forward. However, any
error was harmless.
A non-constitutional error is harmless if it is highly probable
8 Thus, when considering whether evidence of a defendant’s silence or
failure to come forward should be admitted, “careful attention must now be paid to the specific evidence offered and the specific theory and rules the proponent of that evidence contends authorize its admission.” Orr at 741. 9 that the error did not contribute to the verdict. See Rammage v.
State, 307 Ga. __ (5) (__ SE2d __) (2020). To determine whether a
trial court error is harmless, we review the record de novo and weigh
the evidence as a reasonable juror would. Here, Appellant admitted
he shot Wilder, who was a stranger to him at that moment in time.
The evidence also showed that the victim was unarmed. It is highly
probable that the admission of Wilder’s alleged gang affiliation
would not have contributed to the jury’s verdict on the murder
charge. Therefore, this allegation of error fails.
4. Next, Appellant alleges the trial court erred when it
overruled his objection as to the sufficiency of the identification of
the voices heard on certain wiretap recordings. OCGA § 24-9-901
(“Rule 901”) provides in pertinent part:
(a) The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Code section:
10 ...
(5) Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker[.]
(Emphasis supplied.) Contrary to Appellant’s assertions, the State
met the requirements of Rule 901.
Here, the State presented evidence that investigators sought
and obtained wiretap warrants for the phone numbers of Appellant
and his brother, Jeff, allowing authorities to monitor and record
their phone calls with each other and various other people. The lead
investigator, Ken Aycock, testified about the steps taken to identify
and verify the target phone numbers, the process of monitoring the
phone calls, and the procedures used to discern whether the
recorded calls were pertinent to the investigation of Wilder’s
murder. While Investigator Aycock was on direct examination, the
State introduced and played wiretap recordings of certain
conversations allegedly between Appellant and his other brother,
Jason Kilpatrick, and a conversation allegedly between Appellant
11 and Herndon. Investigator Aycock testified that he was able to
recognize and distinguish the voices on the recordings because he
had interviewed those individuals personally.9 See United States v.
Ross, 686 Fed. Appx. 691, 693 (11th Cir. 2017) (“[A]n officer’s
testimony that he became familiar with the defendant’s voice during
the wiretap surveillance was sufficient to satisfy the requirements
of Rule 901 (b) (5) [of the Federal Rules of Evidence].”).10 This was
sufficient identification of the voices to admit the recordings into
evidence at trial. Id.; OCGA § 24-9-901 (b) (5).
5. Appellant alleges the trial court erred when it denied his
motion for mistrial based on the admission of improper character
evidence.11 At the pretrial motion hearing, Appellant did not object
9 For example, Investigator Aycock identified Appellant as having a deeper voice than his brother Jason, whom he described as having the higher- pitched voice. 10 We look to the decisions of the United States Court of Appeals for the
Eleventh Circuit when we interpret the rules of our current Evidence Code that are materially identical to the Federal Rules of Evidence. See Orr, 305 Ga. at 736. 11 The evidence in question concerned a wiretap recording of a
conversation between Jeff and Appellant. The conversation occurred after Jeff and Appellant had received the fabricated news article about the crime. The two men generally discussed whether Appellant was going to submit to an
12 to any of the wiretap recordings based on the implication of bad
character, but rather posited objections on other grounds. When the
transcript of the recording at issue was admitted into the record at
trial, appellant renewed his same pretrial objections, which the trial
court overruled. After Investigator Aycock testified for some time
about how the above-referenced conversation fit into the overall
timeline of events, appellant moved for a mistrial, arguing that the
statements improperly placed his character into evidence. The trial
court denied the motion.
Any error was not properly preserved for review. Specifically,
Appellant did not move for a mistrial, or otherwise object, on
character grounds until after the transcript of the specific phone call
had been admitted at trial, and after the investigator testified about
how the call fit into the overall timing of events. Because the motion
interview at the request of an investigator from the Douglas County Sheriff’s Office. During the conversation, Jeff speculated about why police wanted to talk to Appellant about an 18-year-old case and stated his belief that “enemies” from their past may be setting them up. To that end, Jeff made statements such that he and Appellant had “wild and crazy lives,” that they had “made a lot of enemies and sh**,” had a lot of “old buddies” who were “still junkies,” and that he and Appellant had “been crazy since ‘82.” 13 for mistrial was not contemporaneously made, the mistrial issue
was waived for purposes of appeal. See Coley v. State, 305 Ga. 658
(3) (827 SE2d 241) (2019); Jackson v. State, 306 Ga. 266 (4) (830
SE2d 99) (2019).
6. Appellant asserts the trial court erred when it failed to
suppress video-recorded statements Appellant made post-arrest and
prior to receiving Miranda12 warnings. This Court has explained
that
Miranda establishes a prophylactic rule which applies only to an accused’s custodial statement which is made during interrogation. The issue of whether a statement was the result of an interrogation or was instead volunteered is a determination of fact for the trial court, and it will not be disturbed unless it is clearly erroneous.
(Citations, punctuation and emphasis omitted.) Cope v. State, 304
Ga. 1 (2) (816 SE2d 41) (2018). Interrogation for the purpose of
Miranda includes questions, words, or actions that are reasonably
likely to elicit an incriminating response. See Johnson v. State, 301
Ga. 707 (III) (804 SE2d 38) (2017). Our de novo review of the video-
12 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
14 recorded custodial statement13 supports the trial court’s conclusion
that Appellant’s pre-Miranda statements were admissible.
In the video, Investigator Aycock told appellant that he wanted
to ask Appellant some basic questions and talk about what
happened in 1998. He also told Appellant he had already spoken
with Appellant’s wife and Herndon. At that point, Appellant told
Investigator Aycock that he had been advised not to talk, and then
stated, “You haven’t read me my rights.” Appellant immediately
followed that statement with a question to Investigator Aycock as to
whether he was being charged. Investigator Aycock responded
affirmatively that Appellant was being charged, and assured
Appellant that he would be reading Appellant “his rights” before
asking any questions. Appellant then stated that he would “love to
tell [Investigator Aycock] exactly what happened.” Investigator
Aycock did not respond to this statement, but rather turned his
attention to some paperwork. Then, without any questioning or
prompting from Investigator Aycock, Appellant said that he shot the
13 See Drake v. State, 296 Ga. 286 (2) (766 SE2d 447) (2014).
15 victim in self-defense, proceeding to give his version of the night’s
events. Investigator Aycock sat listening to Appellant until
Appellant invoked his right to counsel, at which point the recording
stopped.
The video recording shows that Appellant was not being
interrogated when he made his pre-Miranda statements. Cope, 304
Ga. at 4. Investigator Aycock did not respond to Appellant’s
statement about wanting to tell what happened, but was completing
paperwork. It is clear that, rather than waiting for his rights to be
read, Appellant expressed his desire to talk and then started talking
of his own accord. Appellant’s pre-Miranda statements were
voluntarily and spontaneously uttered and, therefore, properly
admitted at trial. Id.
7. Appellant alleges trial counsel rendered constitutionally
ineffective assistance when he failed to object to the wiretap
recordings on the grounds that there was no probable cause or
necessity for the warrant application, and when he failed to take the
necessary steps to ensure that Appellant’s expert testified at trial.
16 To succeed on these ineffective assistance of counsel claims,
Appellant must satisfy both prongs of the Strickland v. Washington
test. Strickland v. Washington, 466 U. S. 668 (III) (104 SCt 2052,
80 LE2d 674) (1984). First, Appellant must show counsel’s
performance was deficient by showing counsel made errors so
serious that he was not functioning as the “counsel” guaranteed to
him by the Sixth Amendment. See id. “[Appellant] must overcome
the strong presumption that trial counsel’s conduct falls within the
broad range of reasonable professional conduct.” Domingues v.
State, 277 Ga. 373 (2) (589 SE2d 102) (2003). Second, Appellant
must show the deficient performance prejudiced the defense, which
requires showing that counsel’s errors were so serious that they
likely affected the outcome of the trial. See id.
Because Appellant must satisfy both prongs, this Court does
not need to “approach the inquiry in the same order or even to
address both components of the inquiry if [Appellant] makes an
insufficient showing on one.” Strickland, 466 U. S. at 697. The trial
court’s factual findings and credibility determinations are reviewed
17 under a clearly erroneous standard, but this Court will
independently apply the legal principles to the facts. See Suggs v.
State, 272 Ga. 85 (4) (526 SE2d 347) (2000).
We address each allegation of ineffective assistance below.
(a) Wiretap Recordings
The trial court held a pretrial hearing to determine the
admissibility of the wiretap recordings. Trial counsel objected to the
wiretap recordings on several grounds and was partially successful
when the trial court excluded the wiretap recordings that were made
after Appellant’s arrest. Trial counsel did not challenge the validity
of the affidavit used to apply for and secure the wiretap orders. On
appeal, Appellant contends trial counsel rendered constitutionally
ineffective assistance for failing to seek exclusion of the wiretap
recordings by challenging the sufficiency of the affidavit used to
procure the wiretap warrants on the grounds that there was a lack
of probable cause and necessity for the warrants. See OCGA § 16-
18 11-64 (c);14 18 USC § 2518 (3).15
At the motion for new trial hearing, trial counsel testified that
he believed that the process of how law enforcement procured the
warrants was “something the jury should hear about.” Trial counsel
14 OCGA § 16-11-64 (c) provides in pertinent part:
Upon written application, under oath, of the district attorney having jurisdiction over prosecution of the crime under investigation or the Attorney General made before a judge of superior court having jurisdiction over the crime under investigation, such court may issue an investigation warrant permitting the use of a device for the surveillance of a person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by 18 U.S.C. Chapter 119. Such warrant shall have state-wide application and interception of communications shall be permitted in any location in this state. 15 18 USC § 2518 (3) provides in pertinent part:
(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting . . ., if the judge determines on the basis of the facts submitted by the applicant that[ ] (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous[.] 19 testified that he attempted to cross-examine Investigator Aycock
about how the warrants were obtained but that he was not allowed
to pursue that line of questioning because the trial court sustained
an objection from the State. Trial counsel did not otherwise opine
as to why he did not pursue a pretrial challenge to the wiretap
affidavit on the grounds of lack of probable cause and necessity.
When and how to raise objections to evidence at trial is
generally a matter of trial strategy. See Gibson v. State, 272 Ga. 801
(4) (537 SE2d 72) (2000). Neither the fact that counsel could have
pursued a different strategy to suppress the wiretap evidence nor
the fact that his chosen strategy was partially unsuccessful
necessarily renders his performance constitutionally deficient. See
Leili v. State, 307 Ga. 339 (4) (834 SE2d 847) (2019). Trial counsel
sought to have certain wiretap recordings excluded, and, through his
efforts, he successfully ensured that no post-arrest wiretap
recordings would be admitted at trial. He did not challenge the
sufficiency of the affidavit. Appellant has not made a showing on
appeal that the affidavit was insufficient to secure the wiretap
20 warrants, but rather relies on blanket assertions that there was no
probable cause or necessity to procure the warrants. However, the
affidavit, which was entered as an exhibit at the motion for new trial
hearing, complies with OCGA § 16-11-64 and 18 USC § 2518 (3).16
Counsel was not deficient for failing to make a meritless objection.
See Walker v. State, 306 Ga. 637 (2) (832 SE2d 783) (2019).
(b) Expert Witness.
The trial court denied testimony from appellant’s expert on the
ground that it would not be helpful to the jury. See Division 2,
supra. Even with this determination, the trial court offered
16 The 37-page affidavit thoroughly sets forth the scope of the 1998 investigation and the renewed investigation, making it clear that there was probable cause to believe Appellant and his brother Jeff were the key suspects in Wilder’s murder. Although investigators strongly believed that Appellant shot the victim and that Jeff helped dispose of the murder weapon, the affidavit also noted that the 1998 sketch of the suspect, which was based on eyewitness descriptions of the shooter that night, somewhat favored Jeff’s appearance at the time. Thus, investigators needed the wiretaps to clarify who should be arrested and for what charges. Authorities were also concerned that evidence would be lost or concealed further if they were not allowed to surreptitiously gather evidence. For example, police refrained from interviewing appellant’s ex-wife for fear Appellant would become aware of the renewed investigation and take action to conceal the crime. The affidavit also described in detail how authorities planned to use the fabricated news article to elicit incriminating statements once the wiretaps were in place.
21 Appellant the opportunity to make an additional proffer, beyond the
expert’s resume and single-paragraph summation already
submitted, in support of allowing the expert to testify. Trial counsel
declined to make an additional proffer, proceeding to trial without
an expert. According to appellant, trial counsel was deficient by
failing to do everything he could to secure the expert’s testimony at
trial.
At the motion for new trial hearing, trial counsel testified that
he did not believe making an additional proffer would have been
“fruitful” and so he decided to “move on.” As set forth in Division 2,
supra, the trial court did not abuse its discretion when it excluded
the expert’s testimony. Accordingly, trial counsel was not deficient
when he made no additional effort to have the expert testify. See
Walker v. State, 294 Ga. 851 (4) (b) (757 SE2d 64) (2014) (“[F]ailure
to pursue further a meritless argument does not constitute
ineffective representation by counsel.”).
Judgment affirmed. All the Justices concur.
22 DECIDED FEBRUARY 28, 2020. Murder. Douglas Superior Court. Before Judge Emerson. James K. Luttrell, for appellant. Ryan R. Leonard, District Attorney, Sean A. Garrett, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B.
23 Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.