McAllister v. State
| Decision Date | 11 January 1989 |
| Docket Number | No. 46273,46273 |
| Citation | 375 S.E.2d 36,258 Ga. 795 |
| Parties | McALLISTER v. The STATE. |
| Court | Georgia Supreme Court |
Peter D. Johnson, Garrett & Johnson, Augusta, for Marvin Eugene mCallister.
Sam B. Sibley, Jr., Dist. Atty., Danny L. Durham, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Augusta, Leonora Grant, Asst. Atty. Gen., for the State.
Marvin Eugene McAllister appeals his conviction of the malice murder of Sandra Elaine Weatherbee, for which he was sentenced to life imprisonment. 1 We affirm.
There was evidence which authorized the following findings. McAllister and his victim were drug users and drug sellers who lived together for approximately three weeks in the residence of their drug suppliers. She told him that she wanted to discontinue their relationship and just be friends. An argument ensued, during which he cursed her. He later confided to a drug customer that he was going to kill his "old lady." During a trip to buy drugs, he shot her with a .25 caliber handgun--once through the top of her head, once through her left cheek, and once through her left ear. Medical testimony indicated that she died from the wound to the left ear. Ballistics testimony indicated that she had been killed by a .25 caliber handgun under circumstances negating suicide. Those circumstances included the estimated distance from the muzzle to the head wounds, and the presence of gunshot residue on his hands but not hers. Ballistics testimony indicated that a bullet removed from her body was consistent with having been fired from McAllister's handgun. When a sheriff's deputy on patrol stopped to investigate the parked vehicle, McAllister ran to the patrol car and told the deputy that, when he parked the vehicle, Weatherbee shot herself in the head twice. McAllister confided to a friend, "I had to do it...."
1. The appellant first contends that the state failed to establish a sufficient chain of custody with respect to a gunshot-residue test performed on him. He claims that no evidence was presented as to: how the GBI agent marked the gunshot-residue swabs taken from the hands of McAllister and the victim; what was done to preserve the swabs from contamination; the date on which the swabs were sent from the Augusta laboratory and received by the Atlanta laboratory; the manner in which they were identified, preserved and protected by the Augusta laboratory; and their condition. Accordingly, there is no assurance: as to the identity of the wipings; that they were not interchanged or commingled with each other; and that they were not altered or adulterated at some point in the handling process.
The jury heard testimony as follows. The GBI agent used two separate gunshot-residue kits, one for McAllister and one for the victim. He followed the instructions in each kit. The wipings were taken from McAllister and the victim at different times and places. Each kit was separately boxed and sealed, and all the swabs were sealed in vials. The agent was satisfied that the wipings were not contaminated.
In the case of blood samples, we have held that, when a blood sample is routinely handled and nothing in the record raises a suspicion that the blood tested was other than that taken from the defendant, the evidence of tests on such blood is admissible, and that the circumstances of each case need only establish reasonable assurance of the identity of the sample. Cunningham v. State, 255 Ga. 35(5), 334 S.E.2d 656 (1985) and cit. The trial court did not abuse its discretion in finding that a proper chain of custody had been established to admit the test results.
2. The appellant next enumerates as error the trial court's denial of his motion for continuance on being apprised of the alleged unexpected presence of two witnesses for the state. As to witness Barbara Cook, the appellant concedes that her name and address were on the witness list provided to him, but that his counsel was unable to locate her. Rule 30.3 of the Uniform Rules for the Superior Courts provides in part, "Upon request of defense counsel, the district attorney shall furnish to defense counsel as an officer of the court, in confidence, the addresses and telephone numbers of the state's witnesses to the extent such are within the knowledge of the district attorney." (Emphasis supplied). We find no error.
As to witness Lorraine Krebs, the defense was given her name as Lorraine Gibbs (a/k/a Rainey). The appellant concedes that he was aware of the existence of "Rainey," with whom he had spent the evening prior to the murder and whom he had contacted after his incarceration. Under the circumstances, any error in the last name of this witness was harmless. See Stansifer v. State, 166 Ga.App. 785 (1), 305 S.E.2d 481 (1983). Moreover, the trial court gave the defense time to interview both witnesses.
3. The appellant contends that the trial court should not have allowed an expert in crime-scene reconstruction to offer, as an expert, conclusions that an ordinary juror could have drawn as to the ultimate issues of fact normally reserved for the jury's determination. See Williams v. State, 254 Ga. 508 (1), 330 S.E.2d 353 (1985) and cits. Even assuming that the defense raised objections sufficient to raise this issue for review, the conclusions as to details of how the murder was committed--such as that the victim was shot while standing upright and that the victim's clothing was removed while the victim was lying on the ground--could not have been reached by the jury without professional skill and knowledge such as that acquired by the expert witness. Moreover, the expert testimony was as consistent with the defense theory that the victim was shot by a mysterious stranger as with the prosecution's theory. This...
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Naples v. State
...and will rarely constitute ineffective assistance of counsel." (Citation and punctuation omitted.)). Cf. McAllister v. State, 258 Ga. 795, 798 (5), 375 S.E.2d 36 (1989) ("The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of t......
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Naples v. State
...strategy and will rarely constitute ineffective assistance of counsel." (Citation and punctuation omitted.)). Cf. McAllister v. State, 258 Ga. 795, 798 (5), 375 S.E.2d 36 (1989) ("The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and vera......
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Bridges v. State
...that the victim[s were killed] by a mysterious stranger [in a railroad gang] as with the prosecution's theory." McAllister v. State, 258 Ga. 795, 797(3), 375 S.E.2d 36 (1989).2 6. Bridges argues that his trial counsel rendered ineffective assistance by failing to object to comments made dur......
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Scott v. State
...Buffington with DFACS processing forms which indicated that parenting courses had been recommended for Buffington. McAllister v. State, 258 Ga. 795, 375 S.E.2d 36 (1989), however, requires a different result. In McAllister, the defendant gave testimony regarding whether the victim made a ce......