Kitchens v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 1, 2021
S20A1230. KITCHENS v. THE STATE.
ELLINGTON, Justice.
A Richmond County jury found Willie Kitchens guilty of two
counts of malice murder, arson, attempted rape and other crimes in
connection with the stabbing deaths of Corey Kemp and Melanie
Troupe. 1 In his sole claim of error, Appellant contends that the trial
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
Appellant was responsible for the crimes. We affirm.
Viewed in a light most favorable to the jury’s verdicts, the
evidence at trial showed the following. Shortly after midnight on
June 24, 2011, police and firefighters responded to a fire at Troupe’s
home in Wadley. Troupe lived with her two-year-old son and her
grandmother, both of whom were away on an out-of-town trip when
the fire broke out. Kemp was Troupe’s boyfriend.
As firefighters forced their way through the locked front door
of the home, they saw what appeared to be blood on the threshold.
They discovered Kemp’s body in the smoke-filled living room. A
later-arriving firefighter noticed smoke coming from under a
bedroom door. When he opened the door, a fire on the mattress
Appellant 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.
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flared up. Troupe’s body, which was covered in first and second
degree burns, was lying in the bedroom with her hands tied behind
her back with what appeared to be shoelaces and with her shirt
pulled up above her breasts. Both victims were in a state of partial
undress.
The firefighters observed that an eye of the stove had been left
burning in the kitchen. An arson investigator later determined that
one fire had been ignited on top of sofa cushions placed on Kemp’s
body. A second fire had been started on bedding material lying on
Troupe’s body and the mattress.
The medical examiner testified that Kemp and Troupe had no
smoke in their lungs and did not die as a result of the fire. Rather,
both died as a result of multiple stab wounds. Kemp had cuts and
stab wounds on his head, neck, chest, and abdomen, as well as
defensive wounds on his arms. His testicles were also bruised.
Troupe had been stabbed 39 times and had injuries to her head,
neck, chest, back, hands, and abdomen.
A GBI investigator who responded to the crime scene
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canvassed the neighborhood for witnesses. He spoke with Appellant,
who lived across the street from Troupe. The investigator testified
that Appellant was nervous, his hands were shaking, and he had
cuts on his hands and scratches on his neck. Appellant agreed to be
interviewed at the police station.
During the interview, Appellant said that he had never been
inside Troupe’s home, although he had worked in the yard and
installed an air conditioning window unit from the outside.
Appellant initially declined to submit a DNA sample and left the
station. However, he returned about 20 minutes later and agreed to
give the sample if the agents promised not to search his home. After
the agents informed Appellant that they could not make such a
promise, Appellant allowed the sample to be taken.
Appellant was arrested later that day. Agents photographed
Appellant’s injuries, which consisted of fresh cuts on his hand and
scratches on his face and body. When Appellant was arrested he was
wearing, among other things, a pair of size 10 ½ Reebok brand
tennis shoes.
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At the crime scene, agents found bloody footprints that could
not be attributed to the first responders. The footprints were found
on the floor underneath Kemp’s body, on the back steps, and in the
yard leading away from the house. At trial, a GBI forensic examiner
testified that the shoe prints were made by a size 10 ½ Adidas brand
tennis shoe. Two pair of Adidas brand tennis shoes, one pair size 11
and another pair size 10 ½, were recovered from Appellant’s
residence, but the GBI examiner was not able to match those shoes
with the shoe prints found at the crime scene. Video taken at a gas
station on the day of the murder showed Appellant making a
purchase there while wearing Adidas brand tennis shoes. The shoes
that Appellant was seen wearing in the video were never found by
police.
In a wooded area near Troupe’s home, officers found a child’s
yellow shirt and a white hand cloth lying a few feet apart on a mound
along a path. Troupe’s grandmother testified that the yellow shirt
belonged to Troupe’s son. Officers also found an adult’s green shirt
lying about 20 feet away from the mound. A witness testified that
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she had seen Appellant wearing that shirt at a club the week before
the incident.
Blood stains on the yellow shirt tested positive for DNA that
matched the DNA of Troupe and Kemp. The blood on the green shirt
tested positive for Kemp’s DNA. Appellant’s DNA was found on the
white cloth. In Appellant’s yard, police found a towel, a white and
blue child’s shirt, and a purse. Kemp’s blood was found on the white
towel and the child’s shirt. The purse contained Troupe’s
identification card.
Several witnesses testified at trial that Appellant and Troupe
were more than acquaintances. Jimmy Williams, Appellant’s friend,
testified that about a year before the murders, Appellant told him
that he was in a romantic relationship with Troupe. According to
Williams, Appellant later informed him that Troupe and Kemp were
“together” in a relationship. Williams characterized Appellant as
having been obsessed with Troupe.
One of Troupe’s friends testified that Troupe said that
Appellant had been stalking her. The friend noticed that Troupe did
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not like being alone and would stay with her when Troupe’s
grandmother was not home. Another witness, Troupe’s co-worker,
testified about an incident that occurred about three months before
the killings. She testified that Troupe pointed a man out to her and
said “that guy keep[s] bothering me. I . . . told him I don’t want him.”
The witness saw that the man “looked like one of the Kitchens boys.”
Another of Troupe’s friends testified that she spoke with
Troupe on the phone as Troupe’s grandmother packed to go out of
town. The friend said that Troupe told her that “you know who” was
standing outside her home. Based on her other conversations with
Troupe, she understood that Troupe was referring to Appellant.
The prosecution also offered other-act evidence that showed
that Appellant had choked an ex-girlfriend until she lost
consciousness. In another incident, the ex-girlfriend testified,
Appellant tied her hands behind her back and had sexual
intercourse with her against her will.
Williams also testified over objection about a statement made
to him by Debra Kitchens, Appellant’s sister. According to Williams,
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he and his girlfriend drove to the crime scene between 8:00 a.m. and
9:00 a.m. on the morning after the killings. Debra walked up to the
car and said “Willie did it.”
Debra testified at trial before Williams did. The prosecutor did
not ask Debra during her testimony whether she told Williams that
Appellant had committed the murders. Nor was she recalled to the
stand after Williams testified. Debra testified to the following: On
the evening of the murders, she sat outside her home with Appellant
and others. Appellant left the premises around 9:00 p.m., and Debra
left about 30 minutes later. Debra returned home around 11:30 p.m.,
at which time she went straight to her bedroom. She testified that
she did not see Appellant. About 10 minutes later, a cousin alerted
her to the fire at Troupe’s home. After coming out of her room, Debra
saw Appellant sitting on the sofa. She went outside and then went
to the scene of the fire with others. She did not see Appellant at the
scene.
1. Appellant does not dispute the legal sufficiency of the
evidence supporting his convictions. Nevertheless, we have reviewed
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the record and conclude that, when viewed in the light most
favorable to the 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
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979). 2
2. Appellant contends that the trial court erred in allowing
Williams to give inadmissible hearsay testimony that Debra told
Williams that Appellant “did it.” The trial court admitted the
testimony over objection after concluding that Debra’s statement fell
within the present sense impression and excited utterance
exceptions to the rule against hearsay. 3 See OCGA § 24-8-803 (1)
(defining present sense impression exception to the rule against
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
Ga. L. 2011, pp. 99, 214, § 101.
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hearsay); OCGA § 24-8-803 (2) (defining excited utterance exception
to the rule against hearsay). Appellant argues that the statement
was not a present sense impression or an excited utterance. 4
Assuming without deciding that the trial court abused its
discretion in admitting the hearsay, any error was harmless. “In
determining whether the error was harmless, we review the record
de novo and weigh the evidence as we would expect reasonable
jurors to have done so. The test for determining nonconstitutional
harmless error is whether it is highly probable that the error did not
contribute to the verdict.” Williams v. State, 302 Ga. 147, 153-154
(3) (805 SE2d 873) (2017) (citation and punctuation omitted).
The evidence showed that Appellant was obsessed with Troupe
and had been stalking her, and that Troupe saw him outside her
home on the day of the murders as her grandmother prepared to
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)).
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leave for an out-of-town trip. Appellant wore size 10 ½ shoes, the
same size of the bloody shoeprints found at the murder scene. A
hand cloth with Appellant’s DNA was found on a trail behind
Troupe’s home near clothing containing the victims’ blood. That
clothing included a green shirt that a witness had seen Appellant
wearing and that forensic evidence showed had been splattered with
Kemp’s blood. A purse containing Troupe’s identification was
recovered from Appellant’s yard along with a towel and a shirt
containing Kemp’s blood. When taken into custody on the day after
the murders, Appellant’s hand was freshly cut and there were
numerous scratches on his body. Troupe’s body was found with her
hands tied behind her back and her shirt pulled up above her
breasts. A former girlfriend of Appellant testified that he bound her
hands behind her back and had sexual intercourse with her against
her will. In light of the strong evidence of Appellant’s guilt, it is
highly probable that any error in admitting Debra’s out-of-court
statement, which did not indicate why she believed Appellant
committed the crimes, did not contribute to the verdicts. See
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Hampton v. State, 308 Ga. 797, 802-803 (2) (843 SE2d 542) (2020)
(assuming error in admission of hearsay, the error was harmless
given, among other things, forensic evidence pointing to appellant’s
guilt); Perez v. State, 303 Ga. 188, 190-191 (2) (811 SE2d 331) (2018)
(pretermitting error in the admission of the victim’s hearsay
statement, it was highly probable that the admission did not
contribute to the verdict given the overwhelming evidence of
appellant’s guilt).
Judgment affirmed. All the Justices concur.
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