McKelvey v. State

• Decision Date: 01 March 2021
• Docket Number: S20A1548
• Court: Georgia Supreme Court
• Parties: MCKELVEY v. The STATE.

311 Ga. 34

855 S.E.2d 598

MCKELVEY

v.The STATE.

S20A1548

Supreme Court of Georgia.

Decided March 1, 2021

Angela Dillon, for appellant.

Julia F. Slater, District Attorney, Frederick Lewis, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth Rosenwasser, Assistant Attorney General, for appellee.

LaGrua, Justice.

Appellant Sacorey McKelvey was convicted of murder and other crimes in connection with the shooting death of Corey Owens.¹ On appeal, McKelvey contends that the evidence presented at trial was insufficient to support his convictions; that the trial court erred by admitting into evidence his 2009 convictions for terroristic threats; that the trial court erred in striking two potential jurors for cause; and that his trial counsel rendered constitutionally ineffective assistance by failing to call two alibi witnesses. For the reasons set forth below, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following: Owens had a biological brother, Gregory Owens, and a stepbrother, Matthew Mungin. Elexis Cooper is the mother of Gregory's children. In March 2009, McKelvey confronted Elexis and her cousin after an altercation between their families, pointing a gun in Elexis's face and threatening to kill her. Following this incident, McKelvey was arrested and incarcerated. On November 17, 2009, McKelvey pleaded guilty to three counts of terroristic threats and was sentenced to three concurrent probated terms of five years.

On April 22, 2014, McKelvey ran into Owens and told him he wanted to meet with Owens, Gregory, and Mungin. That evening, Owens, Gregory, and Mungin met McKelvey in a field adjacent to a group of apartment homes on Adair Avenue in Columbus. People who frequent this area often refer to it as "Adair." Soon after meeting the brothers, McKelvey got angry and started talking about his past "trouble for a pistol charge" – referencing the 2009 incident with Elexis. McKelvey told the brothers that they "owed" him money or drugs for what happened in 2009, blaming Gregory, in particular, for McKelvey's arrest, incarceration, and inability to get a job. Gregory said they owed him nothing, and McKelvey pulled a gun and aimed it at Gregory's face. Gregory charged McKelvey, and the two fell to the ground fighting. Mungin and Owens joined in, trying to wrestle the gun away from McKelvey. Ultimately, Mungin was able to get the gun away from McKelvey. McKelvey told Mungin he was going to get another gun and come back. McKelvey then ran away, saying he was going to kill all of them. The brothers immediately left the area.

Elexis's mother, Debra, witnessed the incident in the field from her apartment. Debra, who has known McKelvey since he was a child, testified that she saw him tussling with Owens, Gregory, and Mungin and heard someone say "he got a gun," referring to McKelvey. Debra said the brothers "wrestled [McKelvey] down and took the gun." Everyone then scattered and left, and Debra heard McKelvey tell the brothers that he "was going to kill them all."

Later the same night, Debra was standing on her back porch when she saw McKelvey approach with a gun. McKelvey was angry, and Debra tried to calm him down, encouraging him to "just leave it alone, ... just let it go." McKelvey told her he "had to kill them"; she understood "them" to mean Owens, Gregory, and Mungin.² McKelvey then mentioned Debra's daughter, Elexis, and the fact that Gregory lived with her. Debra got upset, explaining that Elexis had nothing to do with what happened earlier that day. Debra called Elexis and made McKelvey speak with her. McKelvey told Elexis he would not go to her house "with the mess," but he was going to kill Owens, Gregory, and Mungin.³ When Debra saw McKelvey again the next day, he confirmed he would not go to Elexis's house. For the next couple of days, Owens, Mungin, and Gregory stayed away from Adair and their apartment because, according to Mungin and Gregory, they continued receiving threats that McKelvey was going kill them.

On April 24, Mungin spoke to Owens on the phone between 1:00 and 2:00 p.m. Owens indicated that he was going to Adair to pick up his children and would call Mungin when he returned to his house. At 1:28 p.m., McKelvey picked up his paycheck from the construction company where he worked. Debra McNeil, the owner of the company, gave McKelvey his paycheck and observed that he was dressed in all black. McKelvey was accompanied by Kazarita Piatt, his sister's boyfriend. From McNeil's position in the front office, she had a view of the parking area, and she noted McKelvey was traveling in a black car with tinted windows. McNeil's husband, David, was in his truck in the parking lot at the same time and also noticed that McKelvey was traveling in a compact, black car with tinted windows. After getting his paycheck, McKelvey and Piatt left in the black car.

The same afternoon, Martin DeJesus and Nigel Staples were walking in Adair near the intersection of Wynnton Road and Adair Avenue when they saw a black car pull up. A man with dark skin and shoulder-length dreadlocks jumped out of the car and hid behind some nearby poles. About ten minutes later, DeJesus saw a white SUV traveling toward the intersection where the man was hiding, and at that point, the man came out from behind the poles and "went to shooting." The man fired toward the SUV a couple times and then approached the car, continuing to shoot. Staples yelled out, and the man looked at them, ran to a church around the corner, and disappeared. DeJesus went up to the SUV and saw a man – later identified as Owens – seated in the driver's seat, bleeding from gunshot wounds and struggling to breathe. DeJesus was interviewed at the scene and then taken to police headquarters, where he identified McKelvey from a photographic line-up as the shooter. Prior to that day, DeJesus had never seen McKelvey or Owens.

Adair resident Gwendolyn Woodson also witnessed the shooting. She was walking down Adair Avenue toward Wynnton Road that afternoon when she saw Owens driving a white SUV. She then saw a man, whom she recognized as McKelvey, run alongside Owens's SUV, shooting at Owens. McKelvey ran across the street in front of Woodson toward a nearby church, and as he passed her, he turned around to shoot at the SUV again. Police later showed Woodson a photographic line-up and she identified McKelvey as the shooter. In the picture, McKelvey wore dreadlocks. Woodson was familiar with Owens and McKelvey, having known Owens for a long time and recognizing McKelvey "from the streets."

Another witness, Betty McMiller, was in a nearby apartment in Adair at the time of the shooting. McMiller testified that she heard multiple gunshots and then saw a man with dreadlocks, dressed in black, running away from the scene around the back of the church.

Dominic Cobb was also in the area at the time. Cobb, his wife, and some friends were driving through the Adair neighborhood when they observed "a black male in all black" with dreadlocks standing in front of the Adair Apartments. Cobb saw the man pull out a handgun, heard gunshots, and turned to see a white SUV driven by Owens, a childhood friend, slam on its brakes as it was hit by gunfire. Cobb saw the shooter "empty his gun out" on Owens's vehicle. Cobb then saw the shooter run up to the intersection of Wynnton Road and Adair Avenue and jump into a black Pontiac "Trans Am." Cobb told his friend to follow the car and asked his wife to call 911. During the 911 call, which was placed at 1:50 p.m., Cobb's wife provided a partial license plate number for the vehicle, a description of the vehicle, and a description of the shooter. Later that afternoon, Cobb was interviewed by the police and confirmed that prior to April 24, he did not know and had never encountered McKelvey.

Police officers and emergency personnel responded to the scene of the shooting, where they found a white SUV in the middle of the roadway near the intersection of Adair Avenue and Wynnton Road. Owens was still seated in the driver's seat of the SUV and was non-responsive. Emergency personnel transported Owens to the hospital, where he later died from a gunshot wound to the head. Investigators at the scene noted that there were multiple bullet holes through the driver's-side windows and doors. Officers searched the area, but did not recover a weapon.⁴

At trial, an officer with the Columbus Police Department testified that she checked the partial tag number provided by 911 dispatch and received a hit for Georgia license plate number PRW6200; associated with a 2003 black Pontiac Grand Am registered to Okevia McKelvey, McKelvey's sister.

Police were immediately dispatched to Okevia's address, where they located the Grand Am. The hood of the car and brake rotors were hot, as if the car had just been running. Okevia gave consent to a search of her apartment and said the Grand Am had not been moved since that morning. Officers did not find anyone matching the description of the shooter inside the residence. Inside the Grand Am, officers found McKelvey's April 24 paycheck on the center console.

Billy Moss, who dated McKelvey's mother, Michelle, spoke to McKelvey on the afternoon of April 24 when McKelvey was picking up his paycheck. Moss testified that later the same afternoon, between 2:00 and 4:00 p.m., Michelle received a phone call, became very upset, and fainted. Moss later learned about the shooting in Adair and that McKelvey had left Columbus to avoid the police. Shortly thereafter, Moss saw McKelvey with Michelle in Phenix City, Alabama.

On April 25, warrants were taken out for McKelvey's arrest, and officers began searching for him. In early June, based upon information Moss provided, law enforcement located McKelvey at a Columbus residence. McKelvey fit the description the eyewitnesses had...