Kirby v. State, S18A0936

CourtSupreme Court of Georgia
Writing for the CourtNAHMIAS, Presiding Justice.
Citation819 S.E.2d 468,304 Ga. 472
Parties KIRBY v. The STATE.
Docket NumberS18A0936
Decision Date24 September 2018

304 Ga. 472
819 S.E.2d 468



Supreme Court of Georgia.

Decided: September 24, 2018

Matthew Karl Hube, The Hube Law Firm, P.C., Statesboro, Attorney for the Appellant

Samuel H. Altman, District Attorney, John Alexander Fitzner, III, Chief A.D.A., Jessica Black Wilson, A.D.A., Middle Judicial Circuit, District Attorney's Office, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, Attorneys for the Appellee

NAHMIAS, Presiding Justice.

304 Ga. 472

Appellant Phillip Scott Kirby, Sr. was convicted of malice murder in connection with the stabbing death of Emily Mason. On appeal, he contends that his conviction should be reversed because the trial court erred in admitting custodial statements he made to GBI agents, hearsay testimony about a marking on his wedding ring, and evidence of other crimes he had committed. Finding no reversible error, we affirm.1

1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed the following. In 2002, Emily Mason lived with her husband Walt and their two young daughters in Swainsboro; the Masons were both professors at East Georgia College. About two weeks before the murder, Appellant and his co-worker visited the Masons' house to fix the hot water heater. During the repair, Appellant spoke briefly with Emily, Walt, and the Masons' older child. On the way back to their office, Appellant told his co-worker that Emily "looked good to him and he had to go back and see her."

Between 8:30 and 9:00 p.m. on the night of April 29, 2002, Walt left the Masons' house to go to Walmart to get some groceries. As Emily bathed the children, a man entered the house, confronted Emily, and began chasing her with a knife. The man chased Emily

819 S.E.2d 472

twice through the bathroom where the children were. Her older daughter, who was four years old at the time, later told a child psychologist that she recognized the man from "when he was fixing the place where the water is made hot." At trial, when she was 18, she testified that she had previously seen the man who chased her mother when he came to work at their house.

Shortly after Walt left Walmart at 9:39 p.m., he called Emily to ask if she needed anything else, but she did not answer. When Walt arrived home, he found Emily lying dead face down in a pool of blood in the kitchen hallway. Her shirt had been pulled above her breasts, her pants and underwear had been pulled off her and were tangled

304 Ga. 473

under her left leg, and it appeared that blood had been wiped off her lower body, although later examination of Emily’s body found no signs of vaginal or rectal trauma. Emily had been stabbed three times in the neck with a steak knife taken from a cutlery block in the kitchen; the knife was later found in the dishwasher. Other injuries, including a wound on her forehead and bruises and scrapes on her body, indicated that Emily had been in a struggle before she was killed. Walt ran out to the yard and called 911 at 9:51 p.m., screaming that his wife had been murdered and he did not know where his children were. The sheriff’s officers who responded found the girls still in the bathtub. The GBI was called in to lead the murder investigation.

A Caucasian limb hair was found on the inside of Emily’s pants, with enough follicular material to analyze for DNA. About two years after the murder, on June 25, 2004, the hair DNA was matched to Appellant in a DNA database. That match was confirmed using a blood sample from Appellant, who was incarcerated after being convicted of armed robbery and aggravated assault in 2003. After the murder, a man’s wedding ring had been found in a hallway of the Masons' house. The ring was size 11, with a band that was six millimeters wide and had a "TW" mark on the inside, which is the mark of the Tessler & Weiss jewelry manufacturer. According to a records custodian for a local jewelry store, the store sold Appellant a wedding ring in 2001 that was size 11, six millimeters wide, with the TW mark.

The GBI also determined that at 9:38 p.m. on the night of the murder, a deputy sheriff stopped to assist Appellant, whose car had veered off the road and through a ditch on Highway 56 less than two miles from the Masons' house. Appellant’s shirt was covered in blood. He claimed that he was injured when his car crashed, and he had one or two superficial lacerations on his left arm, but he was not actively bleeding.

On June 28, 2004, GBI Special Agent John Durden interviewed Appellant in prison. The interview was audio recorded, and the recording was played for the jury at trial. Appellant claimed, among other things, that his ring size was 10 ½, that he lost his wedding ring in the car accident on the night of the murder, and that he lived with his family in a trailer just a few miles from the Masons' house at that time but could not remember the trailer’s address or landlord.

The record does not indicate clearly what, if anything, happened in the investigation during the next 11 years.2 Then, on May 27, 2015,

304 Ga. 474

the day Appellant would have been released from prison for his 2003 convictions, he was arrested for Emily’s murder by GBI Special Agent Joshua Alford. After Agent Alford finished asking Appellant the identification questions needed for the GBI arrest record, Appellant said, "I knowed it was coming, it was inevitable, it happened."

While Appellant was in jail awaiting trial, he told his cellmate, who testified for the State without receiving any benefit, that on the day of the murder, his son was in the

819 S.E.2d 473

hospital so he needed money and wanted to steal something from the Masons; he believed that they were not at home when he entered the house; he killed Emily after he discovered her there and she confronted him with a knife; he put the knife in the dishwasher; he lost his wedding ring, which he wore on a chain around his neck rather than on his finger due to the electrical work he did, when he struggled with Emily; and he then staged a car accident to disguise the injuries she inflicted on him and fabricated a story about losing his wedding ring in the accident.

The State also offered evidence under OCGA § 24-4-404 (b) showing that Appellant committed robbery, aggravated assault with the intent to rape, and attempted rape in 1990 and armed robbery and aggravated assault with a deadly weapon in 2003. Appellant did not testify at trial. The main defense theory was that Walt killed his wife because she wanted a divorce; there was evidence that they had argued frequently leading up to the murder.

Appellant does not dispute the legal sufficiency of the evidence supporting his conviction. Nevertheless, as is this Court’s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted) ).3

304 Ga. 475

2. Appellant challenges the admission of the custodial statements he made to GBI agents in June 2004 and May 2015 on the ground that the statements were made after he had invoked his right to counsel. We see no error.

(a) At the beginning of the 2004 custodial interview, Agent Durden advised Appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; Appellant waived his rights orally and in writing and agreed to speak with the agent. About 15 minutes into the interview, as Agent Durden was asking about the hair found on Emily, Appellant said, "I'm going to go ahead and get a lawyer because I see now where this is going. So uh, because I—I've got—I've got—I've got alibis, because I know." Agent Durden explained that the interview would end if Appellant wanted a lawyer before talking further, and after some back-and-forth discussion, Appellant said, "We can go ahead and talk." The interview then continued for another 30 minutes without mention of a lawyer.

" ‘A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation.’ " McDougal v. State, 277 Ga. 493, 498, 591 S.E.2d 788 (2004) (citation omitted). See also Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). An ambiguous or equivocal statement about an attorney does not require officers to cease interrogation, however; a suspect "must articulate his desire to have counsel present...

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