Moses Ballard Jr., 32, was convicted Aug. 25, 2016, in the July 4, 2014, early morning shooting death of Michael “Tito” Rowe, 30, who was sitting in a vehicle outside an East Myrtle Avenue residence talking to another person. Police and prosecutors said Ballard and Rowe had an argument earlier in the evening, then Ballard left and returned later with a handgun. Evidence presented at trial indicated Ballard fired six times at the car Rowe was in — five went through the door and the sixth shattered the driver’s side window — and that Rowe got out holding his side and was able to fire back at Ballard.
Testimony heard during the trial included:
• She told the jury she and several others — Rowe, Brittney Maples and Tonya Harley — were at Wesley Blair’s house the evening of July 3. The group planned to go out to celebrate the 4th of July later, but were hanging out beforehand. Allen testified that she was sitting beside Rowe on the couch when Ballard showed up. At first everything was OK. Ballard said something about Allen’s shoes and she had her foot up as he looked at them.
• Allen testified Ballard tried to raise her leg up more and she pushed against him with her toes. That’s when he grabbed her, pulled her off the couch onto the floor and slapped her, Allen testified.
• Allen said Rowe got angry and got up and told Ballard to get out. The two men chest bumped and yelled at each other before Allen and Hartley got between them and Ballard left.
• At that point, everyone was too upset to go out, so the group began to go their own way. Rowe and Hartley left, but returned shortly to retrieve something they had left behind. By then, Ballard was back and asked Maples where Rowe went because he wanted to apologize to him, according to Maples’ testimony.
• Hartley entered the house about that time to get her things and told Ballard he needed to apologize to Rowe, Maples said. Ballard went out and toward Rowe’s vehicle.
• She testified that she saw the whole thing go down, although she previously told police she didn’t see the shooting. She testified she was watching to see what would happen when Ballard approached Rowe.
• She testified she could see Ballard talking to Rowe, who was still in his car, then Ballard pulled out a gun and started shooting.
Maples said Ballard backed away, still shooting, then ran off as Rowe got out of the car, holding his abdomen, and fired a gun in the direction where Ballard ran.
• Maples said she went outside but couldn’t see where Ballard went. When she went to the front of the house, Rowe was on the ground. Allen testified that after the shooting stopped, she opened the door, ran toward Rowe and caught him before he collapsed.
Early in the investigation, police said Hartley ran after Ballard and shot at him, then hid both guns used in the shooting before police arrived.
Jurors also heard from Koron Fairley, who testified that a couple of weeks before the shooting, Ballard had asked him to hold onto a weapon for him. He said he agreed and Ballard retrieved it the same night as the shooting.
The defense’s theory at trial was that it was Rowe who fired first and Ballard only acted in self defense. After Washington County Criminal Court Judge Stacy Street denied a motion for a new trial, Ballard’s attorney, Chris Byrd, filed the appeal based on seven issues:
Insufficient evidence to sustain conviction
The defense argued the eye witness testimony was “not reliable,” and the physical evidence suggested Rowe was shot in the street rather than in his car. The court ruled its job was not to reweigh the evidence or testimony from eyewitnesses and the jury had the option to consider self-defense as a factor. The appellate court said that given the verdict, the jury properly weighed the evidence and testimony.
Trial court erred in allowing an expert witness to testify beyond the scope of her expertise
Dr. Nicole Masian, the pathologist who did the autopsy on Rowe, testified to a hypothetical question posed by the state regarding the trajectory rods placed through bullet holes in Rowe’s car. The defense objected to the question because Byrd said it was outside of Masian’s scope as an expert to determine if the trajectory of one of the bullets could have been the fatal shot.
Trial court erred by not allowing recorded jail phone calls between the defendant and two of the state’s witnesses to be introduced at trial
The defense wanted to introduce recordings of jail phone calls from Ballard to Maples. They argued it would show Maples had been threatened by Ballard and that what she told Ballard she saw the night of the shooting was different than her testimony. The appellate court ruled the defense did not provide any supporting evidence on the issue and failed to demonstrate error.
Trial court erred by not allowing “evidence regarding the gang affiliation of various involved parties” to be introduced at trial
The defense wanted to present evidence about gang affiliation of several witnesses and others involved in the case. Street denied that request and the appellate court affirmed that decision.
The state committed a discovery violation by withholding evidence, which “amount(ed) to newly discovered evidence” requiring a new trial
The defense contended that prosecutors failed to disclose that a tear in the upholstery under the door handle was a bullet hole. Byrd argued that none of the evidence turned over by prosecutors revealed that information. It was that bullet hole and trajectory rod, a photo of which was published in the Johnson City Press during the trial, that alerted the defense. The appellate court ruled that there was no discovery violation because the car was available to the defense at all times and not prevented from inspection or from placing their own trajectory rods.
The trial court was unable to perform its duty as the 13th juror “due to the withheld evidence.”
A trial judge always sits as the 13th juror in a trial and can overrule a jury’s verdict. In Ballard’s case, Street found that as the 13th juror, there was sufficient evidence to convict Ballard. The appellate court ruled that Street fulfilled his duty and the issue was without merit.
Ballard still has options as far as appealing his conviction. One of the next steps could include a post-conviction appeal, which essentially places blame on a defense attorney for ineffective assistance of counsel.