Attractive Jamaican native Dionne Baugh was making a life for herself
in Atlanta, Georgia. Despite her recent divorce, things were going
well. Dionne had a good job and a rich boyfriend. She'd caught the eye
of local businessman Lance Herndon, and the two were an item.
But Lance was a
ladies man and, on at least one occasion, Dionne had caught him with
another woman. In fact, she was arrested for making a scene outside
his home. Then, in August of 1996, Lance was found bludgeoned to death
in his bedroom.
Police went to
Dionne, who admitted she'd seen Lance the night before, but claimed to
know nothing of the murder. DNA linking Dionne to the crime scene
would prove otherwise. Police charged her with murder. She was tried
and convicted, but disputed testimony led to a new trial.
The second jury
deadlocked, giving Dionne a chance at a third trial. Dionne decided to
cut a deal. She pled guilty
to voluntary manslaughter and was sentenced to 10 years in prison.
1996 killer of Roswell millionaire out of prison
Dionn Baugh spent 10 years in prison for the
voluntary manslaughter of Roswell millionaire Lance Herndon
By Nedra Rhone - The Atlanta Journal-Constitution
November 29, 2011
ATLANTA After a high-profile killing, an
overturned life sentence and nearly a decade as fodder for news
outlets nationwide, Dionne Baugh is a free woman.
Baugh, 44, spent 10 years in prison for the
voluntary manslaughter of Roswell millionaire Lance Herndon. She was
released in July and is currently serving a 10-year probation, said
Kristen Stancil, a spokeswoman for the Georgia Department of
"I'm happy that she is out and hopefully she is
doing well," said a relative who asked not to be identified. The
relative is no longer in contact with Baugh but could not escape the
sensational unfolding of the case from Herndon's death in 1996 right
up to the release of a true crime book in 2007 detailing Baugh's trial
from murder conviction to guilty plea. "I heard about the book, but I
couldn't read it," the relative said. "It was too painful."
In August 1996, Herndon, 41, was found dead in his
Roswell home by his mother. He had been bludgeoned to death with an
object that was never found. There were no fingerprints at the scene
and no witnesses, and it took more than a year before police arrested
Baugh in January 1998. Baugh, who had a husband and young daughter in
her native Jamaica, had become Herndon's lover after she finagled an
invite to his birthday party.
Back then, Baugh was a petite, polished, mildly
accented 29-year-old studying finance at Georgia State University
while working as an executive secretary at MARTA. She owned a home in
Norcross and, according to prosecutors, had a taste for the finer
things. Herndon seemed able, and at one point willing, to provide
It was Atlanta's golden era -as host to the
Olympics and the rising jewel of the New South and Herndon, who
found his fortune in computer consulting, exemplified the spirit of
the city. Baugh was reportedly one of several women with whom he
shared the benefits of his success, including access to credit cards
and luxury cars. But after a few months of dating, when she spied him
with another woman, she flew into a jealous rage. Herndon filed
criminal charges but would not live to make the scheduled court
In 2001, a jury convicted Baugh of murder, which
came with a life sentence. Two years later, the Georgia Supreme Court
overturned the conviction on appeal due to inadmissible testimony from
a police officer. A second jury deadlocked after a two-week trial. In
September 2004, Baugh was set for a third trial but pleaded guilty to
the reduced charge of voluntary manslaughter.
Baugh remained behind bars, most recently at
medium-security Pulaski State Prison in Hawkinsville, but her story
once again gathered steam. In 2005, the case was featured on an
episode of "Snapped," Oxygen's true crime series about female killers.
And in 2007, "Redbone: Money, Malice, and Murder in Atlanta," by Ron
Stodghill (Amistad/HarperCollins, $26) hit bookstores.
Baugh's relative hopes that with her release, the
families - both Baugh's and Herndon's -can move past the devastating
"She is in my prayers," the relative said, "along
with everyone else involved."
woman gets 20 yrs for killing lover - Enters surprise guilty plea
BAUGH, 35, A Jamaican residing in Atlanta, Georgia, was sentenced to
20 years' imprisonment on Monday, September 27, after surprisingly
pleading guilty to killing her lover, Lance Herdon, a wealthy Roswell,
Georgia, businessman in 1996.
pleaded guilty to one count of voluntary manslaughter and was
sentenced in the Fulton County Court in Atlanta to 10 years'
imprisonment and 10 years' probation. Baugh could have faced an
automatic life sentence if she had been convicted of murder. She was
initially was convicted of murder by a Fulton jury in 2000, but that
conviction later was overturned due to improper hearsay testimony by a
Lead prosecutor, Clint Rucker, had said that Baugh,
then married to a pilot, was chasing after Herndon's wealth and flew
into a rage when he wanted to take back his Mercedes and credit card.
Baugh's attorneys, Tony Axam and Don Samuel, argued
that Herndon had several lovers and financial troubles, giving plenty
of others a motive to kill him. During her second trial last year
Baugh's lawyers managed to convince a few jurors that there was
reasonable doubt and a mistrial was declared.
The third trial was supposed to have started start
on Monday, September 27, 2004.
Herndon was the chief executive officer of Access
Inc., a computer consulting firm. He had such influential friends that
Roswell police received calls from federal law enforcement officials
offering to help solve the case.
Herndon had done work for such corporations as
Coca-Cola, NationsBank and the Atlanta Committee for the Olympic
Games, and won accolades from former President Bill Clinton.
He was found on August 7, 1996, in the bedroom of
his upscale home with his skull crushed. At the mistrial last year,
Jackie Herndon, the victim's mother, told the court that she
discovered her son's battered body. She attended court every day and
sat quietly within view of the woman prosecutors insist slaughtered
Baugh has been unable to post bond, set at half a
million dollars, and remained jailed until she faced a third trial.
Harrison Herndon, 12, wanted to attend the trial to
learn more about why he no longer had a father but the family decided
that he shouldn't hear the gruesome details, prosecutors said. The
boy, who has lived with his mother since she divorced Herndon, was
five when he last saw his father alive.
Prosecutors described the case as a tale of wealth,
sex and greed that ended in a bloodbath.
Herndon was the owner and founder of a
multimillion-dollar corporation and had been honored by two presidents
as minority entrepreneur of the year, prosecutors said. His computer
consulting company, Access Inc., developed the software for Fulton
County's 911 system, said Clint Rucker, the lead prosecutor in the
There was no witness to the killing. The murder
weapon was never found, and there is no blood evidence. Prosecutors
pieced together "nuggets" that they insisted proved that Baugh is the
Baugh had no alibi, her DNA was found under
Herndon's fingernails, and she charged $3,000 worth of furniture on
Herndon's credit card hours after the slaying, Rucker said.
Georgia v. Baugh: Did a scorned lover murder a successful
May 17, 2004
Was a successful Georgia
entrepreneur murdered by one of his many lovers, a woman furious over
the fact that he was trying to break off their affair? Or were there
clues pointing to other potential suspects clues that the police
chose to ignore in their rush to prosecute an innocent suspect?
One Atlanta jury had already found Dionne Baugh
guilty of murder but when her conviction was overturned on appeal,
the 35-year-old defendant was tried again in October 2003 in an
A Rising Star
Lance Herndon had earned a reputation as one of
Atlanta's rising business stars. His company, Access Inc., was a
computer consulting firm that earned million-dollar contracts with
such prestigious clients as the city of Atlanta and NationsBank.
The 41-year-old native New Yorker was presented
with a National Service Award at the White House by then-President
George Bush in 1988. Former President Bill Clinton, during his
administration, praised him for his business acumen.
Atlanta Mayor Bill Campbell selected Herndon as one
of the city's business leaders who accompanied the mayor on a trade
mission to South Africa in 1995. An African-American, Herndon was
well-known throughout that minority community for his philanthropic
But Lance Herndon had a dark side. Those who knew
him well concede that the thrice-divorced entrepreneur his most
recent divorce had been the previous January had two major
weaknesses. Herndon liked women, often being involved with several
females at the same time. And Herndon liked to spend money on himself
and on the women in his life. After his death, it was discovered that
Access Inc. was essentially broke, and Herndon had already borrowed
heavily against a large line of credit he had established with a local
Herndon met Dionne Baugh in April 1996 and quickly
began an affair. Baugh, 27, and married at the time, was a naturalized
American citizen originally from Jamaica. Her husband, Shaun Nelson,
worked as a pilot for Air Jamaica and lived on the island nation with
the couple's young daughter, Amanda, while Baugh remained in Atlanta
to complete her college education. She worked as an executive
assistant for MARTA, the Metropolitan Atlanta Rapid Transit Authority.
According to witness accounts, Herndon wanted to
end the relationship with Baugh, though she wanted to continue seeing
Herndon had actually called the police a month
before he was murdered. On July 10, Baugh allegedly made a scene
outside his home and repeatedly banged on his door after reportedly
seeing Lance inside with another woman.
A policeman who responded to the call sent Baugh
away, but she returned early the following morning. Police arrested
her for a misdemeanor charge of criminal trespass.
Although the couple continued to see each other
after the July 10 incident, prosecutors claim that Lance Herndon had
made his mind up to break things off with Dionne. But he continued to
give Baugh money regularly and allowed her the full-time use of his
On August 8 the day Lance Herndon's dead body was
discovered Baugh was scheduled to appear in court on the criminal
trespass citation. Herndon had reportedly promised Baugh, however,
that he would appear with her and ask that the charges be dismissed.
The Crime Scene
Herndon was found dead in his home in a posh
suburban area of Roswell, Ga., on the morning of Thursday, August 8,
His mother, Jackie, discovered Herndon's body after
his employees working in his basement office grew concerned when he
did not show for work and did not return their calls.
Lance Herndon's nude body was found partially
covered with a sheet in his waterbed in the home's masterbedroom
suite. His head had been crushed by repeated blows from a blunt
instrument. Although the murder weapon itself was never recovered, the
medical examiner later concluded that was likely a large crescent
wrench. There were no defensive wounds on the body, indicating that
the victim was ambushed.
Herndon was discovered lying on his back, his arms
folded across his chest, which is the position in which he usually
slept, according to people close to him. His wallet and several credit
cards were found untouched on a dresser in the bedroom, although the
shirt and pants the victim had worn the previous evening were missing.
A bloody pillow case, perhaps used by the perpetrator to wipe off
blood after the attack, was discovered stuffed into the toilet in the
Perhaps the most unusual thing about Lance
Herndon's bedroom was the fact that all of his alarm clocks had been
unplugged. Herndon, who habitually rose as early as 4:00 or 4:30 every
morning, would set three alarm clocks. In addition, the phone that
beside the victim's bed was also unplugged.
Because the heater in Herndon's waterbed kept his
body temperature from falling below 87 degrees, his exact time of
death could not be determined. The medical examiner who performed his
autopsy, however, estimated that Lance Herndon had been dead about six
to eight hours by the time his body was discovered shortly after 10:00
Early in the their investigation, police began to
suspect Baugh of murder, but the case against her was too weak to
warrant an arrest. Nevertheless, police kept an eye on her over the
Authorities first went to question Baugh hours
after Herndon's body was discovered, but no one answered their
repeated knocks on the door. After speaking with a neighbor, they
left. But the neighbor later told them that Dionne Baugh had come over
to her house immediately after the police left to find out what they
According to her neighbor, Baugh said that she had
been in the shower when the authorities knocked on her door which
the neighbor found hard to believe, considering that Baugh was wearing
a business suit, had dry hair, and was in full daytime make-up.
Baugh then got into her car and drove away. Her
neighbor notified the police that she had just left, and they went to
Baugh's home to wait for her return.
About 20 minutes after they arrived, Baugh returned
home and reportedly collapsed and got hysterical after allegedly
learning of Lance Herndon's death. But according to the police, she
shed no actual tears.
In her interview with police later that afternoon
and in a subsequent videotaped interview at the Roswell P.D. nine days
later on August 17 Dionne Baugh denied knowing anything about Lance
Herndon's death. She told authorities that she had driven her husband
and daughter, who had been visiting from Jamaica, to the airport on
the evening of August 7 and then returned home.
She said that Herndon had briefly visited her home
sometime between 9:00 and 10:30 p.m. the night before Lance's body was
discovered and that he brought her his IBM ThinkPad laptop computer
which he sometimes let her borrow. Herndon then left her home, she
Despite repeated questioning, Dionne Baugh stuck to
her story that she never went to Lance Herndon's home the night he was
killed. She also maintained that her relationship with Herndon was
solid, and that she and Lance were truly in love. But authorities
discovered that her version of events did not match other what others
were telling them.
Finally, in January of 1998, police got the break
they were looking for. Dionne Baugh was in the process of a divorce
from her husband, and police learned that Baugh had spoken to her
mother-in-law, Barbara Nelson, a few weeks after the murder. During
that conversation, Baugh allegedly admitted to her mother-in-law that
she had indeed been to Lance Herndon's home on the night he was killed
despite the fact she had told police she had not present that night.
Baugh was arrested and charged with malice murder,
felony murder, aggravated assault, two counts of theft by taking and
financial transaction card fraud. If convicted of either of the murder
charges, she faced life in prison.
The Prosecution's Case
According to the prosecution's theory of the case,
Lance Herndon had grown tired of Dionne Baugh and wanted to end their
relationship. Authorities claim that Herndon had told some of his
friends that he was weary of Baugh's controlling, obsessive behavior
and that he wanted to get rid of her.
But by August 7, claim prosecutors, Dionne Baugh
had realized that her days with Lance Herndon were numbered and,
they say, the evidence suggests that she was not a woman to be trifled
with. Prosecutors also believe the combination of anger and greed was
fueled by Baugh's August 8 court appearance. They theorize that the
final straw may have been that Baugh learned that Herndon no longer
intended to fulfill his promise appear in court and drop the charges
According to the state's theory, Dionne Baugh came
to Lance Herndon's house sometime around midnight on August 7 or 8.
They believe the couple had sex, and that Baugh straddled a dozing or
unsuspecting Herndon and beat him over the head with a large, heavy
object. Prosecutors say Herndon kept a large crescent wrench in his
house, but it was not found after the killing.
After she killed Lance Herndon, say prosecutors,
Dionne Baugh took a shower to wash off the victim's blood, then helped
herself to Herndon's jewelry and one of his credit cards. They say she
then unplugged the victim's alarm clocks so that they would not still
be going off and attracting attention when Herdon's employees began to
arrive at work around 7:30 a.m. Only someone familiar with Herndon's
sleeping and working habits like Baugh, say prosecutors would have
known to unplug the clocks.
Several of Lance's intimates say Herndon normally
slept on his back with his arms folded across his chest, the same
position he was in when his dead body was discovered? But the medical
examiner claims that it's impossible that Herndon would have been in
that position after such a brutal attack. Therefore, authorities
theorize, someone familiar with Lance's sleeping habits would have had
to have placed him in that position so that it would appear as if
Herndon were murdered while he slept.
Prosecutors also say that before she left the
house, Baugh went downstairs to the Access Inc. offices, where she
helped herself to Lance's IBM ThinkPad. Although he had sometimes
loaned Baugh the laptop computer in the past, his co-workers claim the
meticulous Herndon never allowed the IBM to leave his office without
its protective case, yet the case was later discovered in a storage
closet in the office.
Dionne Baugh freely admitted to police that she had
the computer, claiming that Lance had brought it with him to her home
the night of August 7. She also claimed that Herndon often loaned it
to her without its case.
Neither Lance Herndon's jewelry nor the murder
weapon were ever recovered. Police theorize that Baugh disposed of the
crescent wrench and possibly the jewelry as well when she left her
house on August 8 after learning that the authorities wanted to speak
But the credit card that prosecutors claim Baugh
stole from Lance Herndon did surface again. The defendant used it the
morning of August 8 before Herndon's body had even been discovered
to order by phone a display cabinet for her home that cost nearly
Prosecutors also point to forensic evidence they
say proves Baugh committed the heinous murder. Head and pubic hair
samples collected from the defendant matched similar hairs found in
Herndon's bed. DNA found under one of Herdon's fingernails was
identical to Dionne Herndon's DNA. Two crumpled gum wrappers found at
the Herndon home resembled gum wrappers later found in the defendant's
purse. And a piece of leafy vegetation found on Herndon's bedroom
carpet appeared to match a similar piece of vegetation found on the
floorboard of the Mercedes Baugh drove.
Police know that Lance Herndon was at his house at
9:00 p.m. on August 7. His ex-wife, Jeannine, dropped off Herndon's
mother, who was spending the night with her grandson.
Phone records show that he made or received phone
calls off and on throughout the evening including two calls from the
defendant, and one he made to Baugh at 10:53 p.m. The defendant's
claim that Lance Herndon came to her home located at least 20 minutes
away between 9:00 and 10:30 that evening was seemingly impossible.
All of this evidence, prosecutors say, proves that
Dionne Baugh is a greedy woman who maliciously murdered Lance Herndon.
The Defense's Case
Dionne Baugh's lawyers are quick to point out that
most of the evidence against their client is purely circumstantial.
Though they are willing to concede that Baugh has not always been
completely truthful with authorities, they insist that the prosecution
cannot meet its burden of proving beyond a reasonable doubt that
Dionne Baugh is indeed Lance Herndon's killer.
Though police investigators have suggested that
Dionne Baugh tried to avoid them on August 8, the defense notes that
Baugh was actually quite cooperative. After speaking to her neighbor
and learning that the authorities wanted to question her, Baugh did
call the number the police left behind from her cell phone after she
left her house.
When she returned home and found the police waiting
there, Baugh agreed to speak to them, and even allowed them to do a
quick search of her home. She also volunteered to authorities that she
was in possession of Lance Herndon's IBM ThinkPad and promptly handed
it over to them, even though were were likely not even aware of its
The defense also rejects the prosecution theory
that Dionne Baugh was angry at Lance Herndon because he was about to
dump her. They say that the lovers had continued their relationship
after the July 10 incident in which Baugh was arrested outside Lance's
house. In fact, note defense attorneys, Herndon bailed out Baugh the
next day, assisted Baugh in finding a lawyer and even called the
police to try to get the charges dropped. Added to his promise that to
attend the August 8 court hearing on her behalf, the defense contends
that his actions do not suggest that Lance Herndon was trying to
distance himself from Dionne Baugh.
They also disagree with the prosecution's
contention that the forensic evidence is strong evidence against
Baugh. According to the defense, crime scene technicians also found
hairs that did not match either Baugh or Lance Herndon, hairs that
were never matched to anyone. Baugh's lawyers also claim that some of
the other evidence such as the gum wrappers, and leafy material that
may have been left behind by Herndon's killer is much too generic to
be specifically tied to their client.
In addition, none of Lance Herndon's blood was ever
found on any of the defendant's clothing, in her home, in the Mercedes
she drove, or on the IBM ThinkPad she voluntarily handed over to
police. DNA found under Lance Herndon's fingernails was definitely
identified as that of Dionne Baugh, but the defense insists that this
shouldn't surprise anyone, given that the victim and defendant were
having sex on a regular basis. And even if Dionne Baugh did go to
Herndon's home on the night of August 7 and have sex with him, it
doesn't mean that she killed him or was present when he died.
The defense also says that the credit card Baugh
used was one of many Herndon would hand over to girlfriends he was
dating. Baugh claims that she and Lance had together looked at the
furniture in question a few months earlier, and that he had given her
his permission to charge it. Herndon had also given another credit
card to Baugh earlier in their affair. The defense also argues that
their client is not stupid enough to charge nearly $3000 on a dead
man's credit card the very morning after brutally murdering him.
According to the defense, there are plenty of other
people the police could have focused on in the investigation as
Kathi Collins, Lance Herndon's "main" girlfriend,
was the women that Baugh saw with Herndon on July 10. Collins claims
she was at a restaurant with her niece the evening Herndon was killed,
but police never bothered to question the niece to see if she could
back up Collins' alibi.
Another of Herndon's girlfriends, Talana Carroway,
had a boyfriend named "Jazz" Williams who had once had financial
dealings with Lance. Williams may have been jealous of Herndon , the
defense charged, and a car resembling the one owned by Carroway (but
driven by a male) was seen in Herndon's exclusive subdivision by one
of his neighbors around 4:45 on the morning of August 8.
Herndon had once been a partner in a Atlanta
nightclub called The Vixen Club. But the partnership had ended in
litigation, and Herndon's ex-wife noted that her husband had "a lot of
In addition to his lavish and spacious home/office
in Roswell, police were informed that Lance Herndon may have had a
private "secret" apartment in downtown Atlanta. But police never
checked out this apartment or even verified whether or not it existed.
The day before the murder, one of Herndon's
contract employees was overheard making threatening statements about
Herndon. Norvelle Harris had been involved in a dispute over salary
payments that Harris claimed Herndon owed him.
While it's possible that none of these clues would
have led to Lance Herndon's killer, Dionne Baugh's attorneys insist
that police had an obligation to check them out, but that they
neglected to do so in their rush to judgment against Baugh.
That same sloppiness has infected this entire case,
the defense claims a case that the prosecution simply does not have
enough evidence to prove.
The First Verdict
On April 17, 2001, the jury found Baugh guilty on
all six counts. Meanwhile, while the jury was deliberating, defense
lawyer Gere Quinn made a motion for a mistrial, charging that
prosecutor Clint Rucker was not licensed to practice law in Georgia.
The allegation was true Rucker's law license had
been suspended because he failed to pay his bar association dues.
Rucker claimed the non-payment was an oversight and said he was
embarrassed by the situation.
Judge Jerry Baxter denied the mistrial following a
hearing on the matter. Baugh was sentenced to life in prison, but that
all changed when her lawyers successfully appealed her case. On July
10, 2003, the Georgia State Supreme Court found that hearsay testimony
by lead investigator William Anastasio had been erroneously admitted
during the trial. Anastasio had been allowed to testify to statements
made to him by Herndon's employees and girlfriends as well as Baugh's
mother-in-law, and to compare these statements to information given by
On Nov. 8, 2003, four days after deliberations
began, the judge declared a mistrial after jurors maintained they were
The case is expected to be re-tried sometime during
the first half of 2004. Dionne Baugh is currently free on $500,000
Supreme Court of Georgia
Baugh v. State
July 10, 2003
Donald F. Samuel,William Charles Lea, Garland,
Samuel & Loeb, P.C., Tony L. Axam, Axam, Adams & Secret, P.A.,
Atlanta, for Appellant.Paul L. Howard, Jr., Dist. Atty., Anna
Elizabeth Green, Asst. Dist. Atty., Bettieanne C. Hart, Deputy Dist.
Atty., Thurbert E. Baker, Atty. Gen., Madonna Marie Heinemeyer, Asst.
Atty Gen., Atlanta, for Appellee.
Appellant Dionne Andrea Baugh appeals the judgment
of conviction entered against her after a jury found her guilty of
malice murder, theft by taking, and financial transaction card fraud
in connection with the death of Lance Herndon.1
1. The victim's mother found him in his bed after
he had not been seen in his office. His head was bloodied and her
efforts to revive him were unsuccessful. The medical examiner who
performed the autopsy testified the victim had received a single,
non-fatal blow to the back of the head that possibly disoriented him,
and multiple blows to the front and right side of his face that
crushed all the facial bones inward and caused death. When presented
with a wrench identified by the victim's housekeeper as similar to the
one on a household counter before the victim's death and missing
since, the medical examiner testified the wrench could have inflicted
the fatal blows. DNA found under the victim's fingernails was
determined to be that of the victim and that of appellant. A
forensic expert testified that two head hairs and one pubic hair
lifted from the victim's nude body were similar enough to samples
obtained from appellant that they could have originated with
appellant. A blood spatter expert testified that the assailant was
on the bed, possibly straddling the victim, at the time the wounds
The State also presented evidence that appellant,
one of several of the victim's lovers, had been arrested for criminal
trespass outside the victim's home a month earlier and the court date
for the charges was the day the victim was found dead. While
appellant told police that the victim had visited her in her home the
evening before he was found dead, telephone records and witnesses who
spoke with the victim as reflected in the records indicated he was at
his home at that time. Police found several documents awaiting the
victim's signature in a search of appellant's purse nine days after
the victim was killed. One document stated the car appellant was
driving had been purchased by the victim and, in the event of his
death, the title should be given to appellant; another was a
purported agreement between appellant and the victim acknowledging the
existence of their romantic relationship and stating the car would
belong to appellant if appellant stayed in the relationship until July
1998; the third unsigned document was the victim's purported summary
of the circumstances of the criminal trespass case against appellant
and his desire that the charges be dropped. A laptop computer
missing from the victim's business office in his home and valued at
$3500 was found in appellant's possession without the carrying case
the victim insisted be used when it was borrowed. There was also
evidence that appellant, giving the name Dionne Herndon, used a credit
card issued to the victim to purchase furniture the day the victim was
Appellant contends the circumstantial evidence
presented by the State was not sufficient to authorize her
[T]he correct rule for determining the sufficiency
of the evidence in convictions based entirely on circumstantial
evidence is that questions as to reasonableness are generally to be
decided by the jury which heard the evidence and where the jury is
authorized to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save that of guilt,
the appellate court will not disturb that finding, unless the verdict
of guilty is unsupportable as a matter of law. [Cit.].
Roper v. State, 263 Ga. 201(1), 429 S.E.2d 668
(1993). After reviewing the evidence [in this case] in a light most
favorable to the prosecution, we find that the evidence is sufficient
to have authorized the jury to find that the State excluded all
reasonable hypotheses except that of the defendant's guilty, and to
have authorized any rational trier of fact to find the defendant
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id.
2. Citing Woodard v. State, 269 Ga. 317(2), 496
S.E.2d 896 (1998), appellant contends the trial court erred when it
permitted the lead investigating detective to testify to the contents
of the out-of-court statements made to him by five witnesses (two
employees of the victim, two former girlfriends of the victim, and the
former mother-in-law of appellant) who had been called by the State
and had testified before the detective was called. Appellant also
contends the investigator's testimony amounted to testifying to the
ultimate issue in the case and rendering improper opinion testimony.
After the detective recited what a witness had said
in her out-of-court statement, the detective was then asked what
appellant had said on the same subject in her statements to police,
thereby repeatedly demonstrating an inconsistency between appellant's
statements and those made by various witnesses. In Woodard, at 320,
496 S.E.2d 896, we pointed out that a witness's prior consistent
statement is admissible at trial only where (1) the veracity of a
witness's trial testimony has been placed in issue at trial; (2) the
witness is present at trial; and (3) the witness is available for
cross-examination. See also Coburn v. State, 252 Ga.App. 315(4c),
555 S.E.2d 750 (2001); Astudillo v. State, 244 Ga.App. 612, 536
S.E.2d 271 (2000); Phillips v. State, 241 Ga.App. 764, 766, 527
S.E.2d 604 (2000); Jenkins v. State, 235 Ga.App. 53(1), 508 S.E.2d
710 (1998). We went on to hold that [a] witness's veracity is
placed in issue so as to permit the introduction of a prior consistent
statement only if affirmative charges of recent fabrication, improper
influence, or improper motive are raised during cross-examination.
Woodard, supra, 269 Ga. at 320, 496 S.E.2d 896. See also Mancill v.
State, 274 Ga. 465(2), 554 S.E.2d 477 (2001). When there are no
allegations of recent fabrication, or improper influence or motive on
cross-examination, [t]he prior consistent statement [is] hearsay
evidence improperly admitted to bolster the witness's credibility in
the eyes of the jury. Woodard, supra, 269 Ga. at 321, 496 S.E.2d
In the case at bar, the five witnesses testified
and were subject to cross-examination before the investigating
detective testified. During the cross-examinations of four of those
witnesses, the defense did not suggest that the witness's trial
testimony was a recent fabrication or the product of improper motive
As in Woodard, the hearsay statements were introduced during the
direct examination of the investigating officer and were not used to
rehabilitate the credibility of the maker of the prior consistent
statement after the veracity of the maker's trial testimony had been
attacked. Instead, the State used the prior consistent statements of
the witnesses to impeach the defendant by presenting to the jury
through one witness the inconsistencies between appellant's
out-of-court statements to police and the out-of-court statements made
by other people. Since prior consistent statements are admissible
only to rebut a charge that a witness is motivated or has been
influenced to testify falsely or that [her] testimony is a recent
fabrication, (Woodard, supra, 269 Ga. at 320, 496 S.E.2d 896), and
the veracity of four of the witnesses was not affirmatively placed in
issue, the witnesses' prior consistent statements were pure hearsay
and inadmissible to corroborate the witnesses or bolster their
credibility before the jury. Id., at 320, 496 S.E.2d 896. See also
Astudillo v. State, supra, 244 Ga.App. 612, 536 S.E.2d 271; Phillips
v. State, supra, 241 Ga.App. at 766, 527 S.E.2d 604.
The question then becomes whether the error was
harmful. We have often said that the erroneous admission of hearsay
is harmless error where legally admissible evidence of the same fact
is introduced. See, e.g., Felder v. State, 270 Ga. 641(8), 514
S.E.2d 416(1999). However, that rationale is inapplicable when the
hearsay is the prior consistent statement of a testifying witness
whose veracity has not been attacked. This is so because the very
nature of a prior consistent statement is that it is repetitive of
that to which the witness has already testified. Instead, when the
hearsay is a witness's prior consistent statement, the erroneous
admission of the witness's hearsay statement is reversible error if
it appears likely that the hearsay contributed to the guilty verdict.
Woodard, supra, 269 Ga. at 324, 496 S.E.2d 896. To the extent that
Abrams v. State, 272 Ga. 63(2), 525 S.E.2d 86 (2000) and Carter v.
State, 238 Ga.App. 708, 711, 520 S.E.2d 15 (1999), hold that the
erroneous admission of a prior consistent statement is harmless error
because the witness testified to the same events at trial, they are
After reviewing the trial transcript in the case at
bar, we conclude that the erroneous admission of the prior consistent
statements constituted harmful error. The State's case was one
entirely of circumstantial evidence and credibility, and the improper
bolstering of the State's witnesses added critical weight to the
State's case. See Phillips v. State, 241 Ga.App. 764, 767, 527
S.E.2d 604 (2000). Furthermore, several of the prior consistent
statements contradicted a material point of appellant's statement to
police-the victim's whereabouts shortly before he was killed.
Compare Robinson v. State, 246 Ga.App. 576(5), 541 S.E.2d 660 (2000),
where it was determined the erroneous admission of prior consistent
statements identifying the defendant as one of the people who had
assaulted and robbed the victim did not likely contribute to the
verdict since the defendant contended only that it was his
co-defendant who carried the gun and struck the victim.
In light of our reversal of the judgment of
conviction, the remaining enumerated errors need not be addressed
since they are not likely to recur on retrial.
crimes occurred in the early morning hours of August 8, 1996. On
February 3, 1998, the Fulton County grand jury returned a true bill of
indictment charging appellant with malice murder, felony murder
(aggravated assault), aggravated assault, theft by taking a laptop
computer from the victim, theft by taking jewelry from the victim, and
financial transaction card fraud. Appellant's jury trial commenced
on April 9, 2001, and concluded on April 17 when the jury returned
guilty verdicts on all counts. The trial court sentenced appellant
on April 20 to life imprisonment on the malice murder conviction, a
concurrent five-year sentence for theft by taking, and a concurrent
two-year sentence for financial transaction card fraud. The felony
murder conviction was vacated by operation of law (Malcolm v. State,
263 Ga. 369(4), 434 S.E.2d 479 (1993)), and the aggravated assault
conviction merged as a matter of fact into the malice murder
conviction. Id., at Div. 5. The trial court merged the two theft by
taking convictions into one after finding all the property was taken
from one victim. Appellant filed a motion for new trial on May 2,
2001, and amendments thereto on August 8, 22, and 23, and September
10, 2002. The trial court denied the motion for new trial on
September 18, 2002, and the amended motion for new trial on December
4, 2002. A notice of appeal was filed on September 24, 2002, and the
appeal was docketed in this Court on December 6. Oral argument was
heard on April 14, 2003.
the cross-examination of appellant's ex-mother-in-law, defense counsel
suggested that it was not until appellant and the witness's son were
going through a divorce that the witness had first told police about
the statement she testified appellant made to her. This was a
suggestion that the witness's trial testimony and her prior consistent
statement were the result of the witness's animus toward appellant as
a result of the divorce proceedings.
All the Justices concur.
Roswell millionaire Lance Herndon, 41.