McCoy v. State

• Decision Date: 28 March 2001
• Docket Number: No. S00A2025.,S00A2025.
• Citation: 273 Ga. 568,544 S.E.2d 709
• Parties: McCOY v. The STATE.
• Court: Georgia Supreme Court

544 S.E.2d 709

273 Ga. 568

McCOY v. The STATE.

No. S00A2025.

Supreme Court of Georgia.

March 28, 2001.

Elaine T. McGruder, Jonesboro, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Peggy R. Katz, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. HINES, Justice.

Alvin Derrick McCoy appeals from his convictions on charges of felony murder and aggravated assault in connection with the death of Tonya Wright. For the reasons that follow, we affirm in part and vacate in part.¹

Construed to support the verdicts, the evidence showed that McDowell shot McCoy's friend Harden because of Harden's involvement with McDowell's girlfriend. McDowell was charged with assault and released on bond. He went to the home of Tonya Wright, with whom he had a child. McCoy and a relative of Harden's were seen watching Wright's apartment. At approximately 11:30 p.m., a car carrying four men drove up next to Wright's apartment, one man carrying an automatic rifle emerged, approached the windows of Wright's apartment, and fired 36 bullets through two windows of the apartment, killing Tonya Wright. The other inhabitants of the apartment were not hit. The shooter returned to the car and it drove away.

Earlier that evening, at about 11:00, someone knocked on McCoy's door and said "they up there." McCoy went to the place where he kept firearms and then went out the door. He returned around 3:00 a.m. or 4:00 a.m. carrying an automatic rifle. He stood holding the rifle and looking out the window for an hour or so. Later in the morning, he told his girlfriend, who lived with him, that if anyone asked where he was that night, she should say that he went to see Harden. Later, when he and his girlfriend were discussing the Wright shooting, McCoy said "don't make me kill you too."

Also at approximately 11:00 on the night of the shooting, McCoy went to Rawls's residence to borrow a stolen car. Rawls gave him a battery to put into the stolen car, which was parked elsewhere in the neighborhood, and saw an automatic rifle on the backseat of McCoy's car. At approximately 2:00 a.m., McCoy telephoned Rawls and asked him to pick him up in a car. After he had done so, McCoy told Rawls that they would go to "Avis's house" because she was unhappy about some guns that McCoy had left there. McCoy directed Rawls on what roads to drive, choosing a route that avoided the scene of the shooting, which would have been most direct. Before arriving, McCoy stated that "when I brought that AK back, it was smoking." McCoy went into the residence of Avis Searcy and Antoine Bradley, returned with an item wrapped in a blanket, placed it in the trunk, went back inside, and returned with a shoe box, which he also placed in the trunk.

Searcy and Bradley testified that sometime between midnight and 1:00 a.m. on the night of the shooting, McCoy came to their home and left a rifle. Someone then telephoned Bradley and informed him of the shooting. Bradley and Searcy discussed the subject, including the possibility that McCoy had done it, and Bradley paged McCoy to get him to come and retrieve the rifle, which he did at approximately 2:00 a.m.

1. The evidence authorized the jury to conclude that McCoy was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The credit to be given to alibi witnesses is for the jury's determination. Kinney v. State, 271 Ga. 877, 880(2), 525 S.E.2d 91 (2000). Any failure of the State to prove McCoy guilty of malice murder in the same manner in which the crime was set forth in the indictment is moot as the jury returned a verdict of "not guilty" as to malice murder. See Adams v. State, 271 Ga. 485, 488(5), 521 S.E.2d 575 (1999).

2. McCoy was sentenced for the felony murder of Tonya Wright and all the aggravated assaults set forth in the indictment. The felony murder count in the indictment charged that McCoy caused Wright's death "during the commission of at least one of the following felonies," and specified the six aggravated assaults charged. The evidence used to convict McCoy of the felony murder was the same evidence used to convict him of the aggravated assault of Tonya Wright, and consequently the sentence as to that aggravated assault must be vacated. See Jackson v. State, 272 Ga. 191, 193(2), 528 S.E.2d 232 (2000).

3. The weapon with which the crimes were committed was not found. The State introduced a rifle of the type believed to be used in the crimes, and it was identified as similar to a weapon with which McCoy was seen before and after the crimes. Introduction of such a replica is generally permissible. Boyd v. State, 264 Ga. 490, 491(2), 448 S.E.2d 210 (1994). McCoy's reliance upon Paxton v. State, 160 Ga.App. 19, 23(6), 285 S.E.2d 741 (1981), is misplaced. In that case, it was necessary for the State to prove that a real pistol was used, and not merely a toy pistol. Here, there is no question that a real rifle was used in the crimes, and it was not error to admit a replica of the actual weapon.

4. Allen testified that Wright told him that her home was being watched by Harden's "cousin Al." The testimony was admitted under the "necessity" exception to hearsay. See OCGA § 24-3-1(b). Under that exception, there are two requirements: "necessity" and "particularized guarantees of trustworthiness." Azizi v. State, 270 Ga. 709(2), 512 S.E.2d 622 (1999). "The first requirement is satisfied upon a showing that the declarant is deceased or unavailable, that the statement is relevant to a material fact, and that the statement is more probative than other evidence which may be offered," id., which is the case here. Although McCoy contends that there were insufficient guarantees of trustworthiness surrounding Wright's statement, the evidence showed that Allen was Wright's friend and employer, was seen by Wright as a mentor with whom she often discussed her problems, and that Wright had never told Allen anything he later found to be untrue. "Uncontradicted statements made to one in whom the deceased declarant placed great confidence and to whom she turned for help with her problems are admissible under the necessity exception." Ward v. State, 271 Ga. 648, 650(2), 520 S.E.2d 205 (1999). It was not error to admit the statement.

5. Johnson, who was McCoy's girlfriend at the time of the crimes, cooperated with police. A month after McCoy was arrested, a dead bird was placed at Johnson's door, with a note stating: "Bitch, you testify, you die." McCoy moved in limine to exclude evidence of this threat, and contends it was not properly admitted because he was incarcerated at the time the threat was made and it was in no way connected to him. However, McCoy's trial was the only proceeding in which Johnson was anticipated to testify at the time, and she also testified about another threat McCoy had made towards her. Admission of evidence of such a threat is in the discretion of the trial court. Murray v. State, 271 Ga. 504, 506(5), 521 S.E.2d 564 (1999). And evidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from testifying and avoid punishment for the crime. Fugitt v. State, 256 Ga. 292, 293-294(1)(a), 348 S.E.2d 451 (1986). As McCoy's trial was the only proceeding to which a threat concerning Johnson's "testify[ing]" could apply, under the totality of the circumstances, the evidence of the threat was sufficiently linked to McCoy. See Riden v. State, 151 Ga.App. 654, 657(1)(a), 261 S.E.2d 409 (1979). Compare Fields v. State, 260 Ga. 331, 333(4), 393 S.E.2d 252 (1990).

6. Detective Fagler testified that during the investigation, witness Searcy told him that McCoy came to her home once on the night of the shooting, and later told him that McCoy came twice that night; she did not mention a rifle. After speaking with Rawls, Fagler spoke with Searcy again, secured a warrant for her arrest as a party to the crime of murder, and spoke separately with Bradley. Fagler testified that when he interviewed Searcy again, she realized that Fagler had spoken to Bradley and that Bradley "had told me the truth," and, according to Fagler, Searcy then "decided that she would tell me the truth." McCoy objected that this was only Fagler's opinion as to the truth, and the court overruled McCoy's objection. He now contends this testimony was improper bolstering of Searcy's earlier testimony. See Bolden v. State, 272 Ga. 1, 525 S.E.2d 690 (2000). However, Searcy had herself earlier testified that she had at least two interviews with Fagler before she told him "the truth" about all of McCoy's actions that night. Further, Fagler previously testified that he spoke with Bradley on the telephone when Searcy was in custody and that Bradley stated that he would come and tell Fagler "the truth about the gun being brought to the house." Thus, Searcy and Bradley themselves characterized this version of events as the truth, and it was not improper bolstering for Fagler to repeat Searcy's characterization. Additionally, Fagler later testified that the final statements of Searcy and Bradley were consistent and that he "felt that, in my opinion, she was being truthful about her involvement and what she knew about this homicide." McCoy objected and stated that it was improper for Fagler to bolster a witness by giving his opinion about someone else's truthfulness. The court sustained this objection,² recognizing the distinction between the continuation of Searcy's and Bradley's own characterization of their final versions and Fagler's expression of opinion about the truthfulness of those he interviewed.

7. When police arrived at McCoy's apartment to question him, he answered the door, wielding a pistol, which he pointed at the officers. He immediately dropped it and, when questioned, stated that he answered the...