Markell Cody was convicted of felony murder in the shooting death of Clarence Weaver.1 Cody appeals contending that the trial court erred in vacating its order granting a new trial. The trial court had granted the motion for new trial based upon newly discovered evidence and then upon the State’s motion for reconsideration, struck the testimony of the new witness and vacated its previous order. However, the State failed to object to the testimony of the witness or move to strike until after the trial court had granted the motion for new trial and entered a scheduling order. Therefore, the State’s motion to strike was untimely and the trial court erred in granting it. Accordingly, we reverse. The evidence at trial showed that Cody and the defendant were arguing, Cody shot the victim in the leg, and the victim died five days later. Cody testified that the victim was reaching for a gun when Cody shot in self-defense. Cody called four witnesses who also testified that the victim had a gun; however, no gun was found on the victim or near the scene. After reviewing the evidence in the light most favorable to the jury’s determination of guilt, we conclude that any rational trier of fact could have found Cody guilty beyond a reasonable doubt of the crimes for which he was convicted.2 At the motion for new trial hearing, Cody presented the testimony of Olanzier Baker, a newly discovered witness. Baker testified that he was with the victim at the time of the shooting. According to Baker, he and the victim had been snorting cocaine when they decided to buy some more. The victim was driving a car he had stolen, and the two drove to the victim’s uncle’s apartment to try to buy more drugs. Baker and the victim each gave the uncle five dollars to use to buy drugs from one of the uncle’s acquaintances. The uncle walked to another area of the apartment complex and when he returned, he said that “the boys had taken the money.” The victim then went to confront those who had taken the money and got into an argument with them. Following the argument, the victim went to his car, retrieved a gun, and said he was going to kill those who had taken the money. The victim returned to the apartment building and Baker said he heard gunshots. When the shooting stopped, Baker went to see what had happened and saw the victim, who had been shot in the leg. The victim told Baker to take the gun and car and leave, and the victim would get his uncle to take him to the hospital. Baker took the gun and drove away in the car. He abandoned the car nearby and got rid of the gun.
On cross-examination, Baker admitted his name was Olanzier Baker, that he was a convicted felon, and that on the day of the crimes, he was in possession of cocaine, had been snorting cocaine, and he and the victim were trying to purchase more cocaine. He also described the location where the crimes occurred and testified that although he did not know the apartment number of the victim’s uncle, he could find it again. However, he invoked his Fifth Amendment right against self-incrimination and refused to answer questions about aliases he might have, his birth date, or whether two certified copies of guilty pleas to felony charges against Olanzier Baker contained his signature. He also declined to testify as to what he did with the gun. Finally, he declined to state whether he was ever in possession of the gun or a stolen car, even though he admitted both facts on direct examination.
