McKoy v. State

• Decision Date: 15 March 2018
• Docket Number: S17A1994
• Citation: 812 S.E.2d 293
• Parties: MCKOY v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 327

812 S.E.2d 293

MCKOY

v.The STATE.

S17A1994

Supreme Court of Georgia.

Decided: March 15, 2018

Thomas McKee West, Thomas M. West, Attorney At Law, P.O. Box 235, Bethlehem, Georgia 30620, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Vanessa Therese Meyerhoefer, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Brian Keith Fortner, Sean Alexander Garrett, Douglas County District Attorney's Office, 8700 Hospital Drive 3rd Floor, Douglasville, Georgia 30134-2264, for Appellee.

NAHMIAS, Justice.

Appellant Raymond McKoy was convicted of malice murder in connection with the shooting death of his estranged wife’s girlfriend, Lauren Hudson. Appellant argues that the trial court erred in ruling that journal entries he had written were admissible and erred in striking his direct testimony after he refused to submit to cross-examination. We affirm.¹

1. (a) Viewed in the light most favorable to the verdict, the evidence at trial showed the following. Appellant was married to

Tameka McKoy, and they had three children together. During their marriage, Tameka, who is bisexual, introduced women into their relationship, including Hudson. Hudson lived in Chicago but came down for several visits during 2012; at that time, she had a sexual relationship with Tameka and Appellant, both together and individually. Also during 2012, Tameka learned that Appellant was having an affair, and she and Appellant began to have frequent arguments. In November 2012, Appellant held a gun to Tameka’s face while pinning her to the door during one of these arguments. In May 2013, Appellant and Tameka separated and began living apart, informally sharing custody of their children. About a month later, Hudson came to stay with Tameka for three weeks. On June 15, Appellant came to Tameka’s apartment and argued with Tameka and Hudson; Tameka called the police to make him leave.

On the night of June 21, 2013, Tameka, Hudson, and the three children went to a party at the house of Shawnta Nolan, a friend of both women. They returned to Tameka’s apartment around 3:00 a.m. Hudson took the children inside and then went out to smoke a cigarette. Tameka came in after them, carrying their bags. She saw her youngest son, who was two years old, sitting in his carrier in the front room and then went to the back of the apartment to check on the two older children in their rooms. She returned to the front of the apartment, and as she began to lock the door, she heard Appellant say, "Don’t lock the door, she’s still out there."

Tameka turned around to find Appellant in her apartment. She was upset and asked why he was there so late at night with no notice. He said he wanted to take their youngest son to his home. She refused, but Appellant picked up their son and walked out of the apartment. Tameka followed, again asking why he was there. Appellant expressed irritation about a picture that a friend of hers had posted on Instagram of Tameka straddling Hudson on a couch at the party. At some point during this argument, Hudson went inside. She called Nolan and said that Appellant and Tameka were fighting and that she had retrieved a gun left at the apartment by one of Tameka’s friends "in case anything went down." Hudson eventually hung up, promising to call Nolan back. Appellant and Tameka continued to argue outside. Appellant said he wanted his family back, hugging their son and crying. Tameka responded, "You don’t want your family back. That girl you got pregnant is your family now," referring to the woman with whom Appellant had an affair. Appellant then said something to the effect of, "I’ll just solve both of our problems," and walked away from Tameka toward the apartment.

Appellant was carrying his .40-caliber Glock pistol, which he usually kept with him, in a side holster. He opened the door to the apartment, pulled the gun, and shot Hudson, who was standing inside, four times. Three of the shots would not have been fatal—a shot through her cheek on the left side of her face, a shot through her right arm, and a shot through her right femur. At some point during the shooting, however, Hudson fell to the ground and slumped forward, and one shot entered the back of her head; this was the fatal wound

. Neighbors called 911, and when police arrived, Tameka told them that Hudson had been shot by Appellant. They found Hudson slumped over, with her head in her lap. She had a small gun in her right hand, tucked under her body; the gun had not been recently fired. Hudson was struggling to breathe and died soon afterward. The medical examiner testified that the shot to the back of her head was most likely fired by someone standing over her and shooting down.

Appellant fled to his parents’ house. He banged on the door, and when his mother and younger brother let him in, he was frantic. He repeatedly yelled, "she pulled a gun on me," "she had a gun," and, "I shot her." His father took Appellant’s gun and locked it in the father’s truck, where investigators later recovered it and matched it to shell casings found at the crime scene. Appellant’s father began to experience chest pains and called 911. When the Douglasville police heard the call, they sent officers to join the EMTs because they recognized the address as the one Tameka had given them for Appellant’s parents. When he heard sirens arriving, Appellant panicked, said "I’ve got to get out of here," grabbed a butcher knife, and ran into the woods behind the house. He was found shortly thereafter by a police officer with a dog, lying face down with the knife underneath him.

(b) At trial, the defense argued that Appellant shot Hudson in self-defense because she pointed a gun at him. The argument was supported with testimony from Appellant’s mother and brother that Appellant had said Hudson "pulled a gun on him," and testimony from two of Appellant’s long-time friends who said that he had a law-abiding and peaceful character. The defense also called its own forensic firearms expert who testified that the shot to Hudson’s arm may have spun her around and the shot to the back of her head could have come after that. The expert also testified that the position of the shot to Hudson’s leg indicated that she was moving toward Appellant.

Appellant was the final witness called by the defense. He testified on direct examination, and the trial was then adjourned for the day. The next morning, with Appellant present but before the jury was brought into the courtroom, the prosecutor announced that he intended to use some entries from Appellant’s journals to impeach

Appellant’s testimony.² The defense argued that the journals, which were found in a bag in Appellant’s car, had been seized illegally. The State did not contend that they were legally seized, but argued that even illegally obtained evidence can be used for impeachment. After a lengthy discussion, the trial court ruled that the journals generally would be admissible, heard argument on a few specific entries the State wanted to introduce, and concluded that those entries would be admissible.

After this ruling, Appellant refused to return to the witness stand to be cross-examined. His counsel asked for a five-minute recess, which the trial court denied. The court said that if Appellant did not retake the stand, it would tell the jury to "totally disregard all of his testimony." Appellant and his counsel had a discussion off the record, and then the following exchange occurred:

APPELLANT’S COUNSEL: Your Honor, my client is stating that he does not want to retake the stand.

PROSECUTOR: The State’s position is that in the presence of the jury, we will move to have his entire testimony stricken from the record.

THE COURT: And disregarded. That will be the

APPELLANT’S COUNSEL: I’m sorry. I didn’t mean to—I just—I was asking him if he understood what the Court would say to the jury. Do you understand that?

APPELLANT: Yes.

APPELLANT’S COUNSEL: You still don’t want to take the stand?

APPELLANT: No.

THE COURT: Okay. We’ll bring the jury in. I’ll ask him to take the stand and he can tell me he’s not going to take the stand. Then the State can make whatever motions it decides to make. Bring them in.

After the jury returned to the courtroom, Appellant refused to take the stand, and the court told the jury:

Ladies and gentlemen, when a witness takes the stand and testifies directly on their side of the case, in this case when

he responded—this particular witness responded to the questions of his lawyer, he must then be subject to cross-examination for you to even consider anything that he said during his direct examination. When he refuses to take the stand, then I’m going to direct you that I’m striking all of his testimony and you are in no way to consider anything that he said during his direct testimony. He has presented no evidence through himself at this point, as though he never took the stand.

The defense then rested. The jury found Appellant guilty of malice murder.

(c) Appellant does not challenge the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with 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 reject Appellant’s claim of self defense and find him 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 Anthony v. State, 298 Ga. 827, 829, 785 S.E.2d 277 (2016) ("The jury is free to reject any evidence in support of a justification defense and to accept the evidence that the shooting was not done in self-defense."); 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.’ " (citations...