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Dionne Andrea BAUGH

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Jealous rage
Number of victims: 1
Date of murder: August 8, 1996
Date of arrest: January 1998
Date of birth: 1969
Victim profile: Lance Herndon, 41 (her millionaire lover)
Method of murder: Bludgeoned to death with an object that was never found
Location: Roswell, Georgia, USA
Status: Sentenced to life in prison in 2001. Sentence reversed. Pled guilty to voluntary manslaughter on September 27, 2004. Sentenced to 10 years in prison. Released in July 2011
 
 
 
 
 
 

Dionne Baugh: 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 Corrections.

"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 them.

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 appearance.

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 crime.

"She is in my prayers," the relative said, "along with everyone else involved."

 
 

J'can woman gets 20 yrs for killing lover - Enters surprise guilty plea

September 29, 2004

DIONNE 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.

Baugh 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 police officer.

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.

Accolades

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 her son.

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 case.

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 killer.

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 entrepreneur?

Court TV

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 Atlanta courtroom.

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 endeavors.

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 bank.

The Relationship

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 him.

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 Mercedes.

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, 1996.

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 master bathroom.

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 a.m.

The Investigation

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 next year.

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 had wanted.

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 told police.

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 against her.

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 to her.

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 $3000.

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 existence.

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 possible suspects.

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 enemies."

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 the defendant.

The Verdict

On Nov. 8, 2003, four days after deliberations began, the judge declared a mistrial after jurors maintained they were "hopelessly deadlocked."

The case is expected to be re-tried sometime during the first half of 2004. Dionne Baugh is currently free on $500,000 bond.

 
 

Supreme Court of Georgia

Baugh v. State

No. S03A0473.

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 were inflicted.

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 found dead.

Appellant contends the circumstantial evidence presented by the State was not sufficient to authorize her convictions.

[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 896.

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 or influence.2  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 overruled.

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.

Judgment reversed.

FOOTNOTES

1.   The 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.

2.   During 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.

BENHAM, Justice.

All the Justices concur.

 
 


Dionne Baugh

 

Dionne Baugh

 

The victim


Roswell millionaire Lance Herndon, 41.

 

 

 
 
 
 
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