Roberts v. State

• Decision Date: 02 October 2000
• Docket Number: No. S00A1225.,S00A1225.
• Citation: Roberts v. State, 537 S.E.2d 86, 272 Ga. 822 (Ga. 2000)
• Parties: ROBERTS v. The STATE.
• Court: Georgia Supreme Court

537 S.E.2d 86

272 Ga. 822

ROBERTS v.The STATE.

No. S00A1225.

Supreme Court of Georgia.

October 2, 2000.

David E. Morgan III, Abbeville, for appellant.

Patrick J. McDonough, District Attorney, Richard E. Thomas, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.HINES, Justice.

Kenneth Gordon Roberts appeals his convictions for aggravated stalking, malice murder, and possession of a firearm during commission of a felony in connection with the fatal shotgun shooting of his estranged wife, Peggy Roberts.He challenges the sufficiency of the evidence, the denial of a continuance, the refusal to change venue, the admission of certain exhibits and testimony, and alleged improper conduct by the State.Finding the challenges to be without merit, we affirm.¹

Roberts and his wife, Peggy, had been married approximately 16 years, when they separated in mid-September 1998.Roberts came to Peggy's workplace and argued with her.As Peggy ended the encounter, her co-worker and friend, Ammons, overheard Roberts tell Peggy, "I'll kill, you, bitch."On September 22, Peggy obtained a temporary protective order against Roberts; she averred to the court that Roberts had threatened her, abused her in the past, and that she was afraid of him and what he might do before she could get a divorce.The court restrained and enjoined Roberts from threatening or harassing his wife and prohibited him from contacting her, going to her residence or place of employment, and being within 200 yards of her.The day the protective order was entered, Irwin County Deputy Sheriff Young personally served Roberts by handing a copy to him; Young also explained the order to Roberts.Roberts became "upset, mad" and was cursing.

On September 24, Roberts went to the home of his friend, Warren, and told him that he was upset by the separation from Peggy and that he was thinking about killing himself and Peggy.

After the separation, Ammons followed Peggy home after work each night to ensure Peggy's safety.On the evening of September 28, 1998, Ammons had a family emergency and was unable to see Peggy home.Around 11:20 that evening, Griffin, who lived near the mobile home where Peggy was residing heard noises sounding like gunshots and called 911.As he was making the telephone call, Griffin heard a woman call for help and then scream, "Oh, God, no. Please, God, no."More gunshots followed.

Deputy Sheriff Douglas arrived on the scene about 11:25 p.m.He knocked on the door of Peggy Roberts's mobile home, and Kenneth Roberts inquired who it was.Douglas replied that he was from the sheriff's office, and Roberts told Douglas to come in.Douglas opened the door about a foot, and saw Peggy lying on the floor with her head right by the door.Douglas drew his weapon and asked Roberts to come out.Douglas then heard a gunshot and Roberts say, "Oh, my God."Douglas could not see Roberts, but could hear Roberts's voice coming from straight in front of Douglas on the other side of the mobile home, near where a chair was later observed.At the time this shot was fired, Douglas could see Peggy still lying face down on the floor, speechless and motionless.Other officers arrived.The wind blew the mobile home door open more, and Douglas then saw an injured Roberts lying on the floor beside his wife's body.

Peggy Roberts died from a near-contact shotgun blast to the chest, causing massive hemorrhaging into the chest cavity.There was also evidence of bruising on her arms and hand, consistent with her struggling and trying to get away.

A blood-covered 12-gauge Mossberg pump shotgun was found in the trailer living room.A shotgun shell was discovered in the pocket of Roberts's jeans and an empty shotgun case was found in Roberts's car which was parked in front of the mobile home.

Blood spatter, tissue, and other evidence indicated that Peggy Roberts was shot while she was near the front door and fell to the floor as the result of the mortal injury.It also indicated that Roberts then suffered a self-inflicted gunshot wound while he was sitting in a chair in the living room.Because of the heavy saturation of blood and tissue, an outline of a body could be seen on the wall and chair.

At trial, Roberts testified that at lunchtime on the day of the murder, he inadvertently saw his wife and she invited him over that night to retrieve a gun of his that she had; she told him that the "warrant" against him had been dropped; Roberts arrived at the mobile home around 11:15 p.m. or 11:25 p.m.; when Roberts arrived, his wife was standing in the open doorway; she handed him a gun case and told him to come back after he put it in his car; the gun case felt light so Roberts opened it and found it empty; Roberts asked his wife where the gun was and she indicated it was inside the mobile home and asked him to come in; Roberts went inside and when he turned around he found his wife pointing the gun at him and he heard the safety go off; his wife fired a shot, they tussled over the gun, and Roberts got wounded; he regained consciousness lying in front of a chair, saw his wife on the floor, and fired the gun to summon help.He denied being shot while he was seated in the chair and further testified that he had no memory of anything else that happened that night; he did not know if he shot his wife, but that if he did so, it was possibly while he was "blacked out"; after he fired the gun for help, the next thing he recalled was coming to in the hospital two-and-a-half weeks later.Roberts could not explain the shotgun shell found in his pocket.

1.Roberts contends that the State failed to carry its burden of proof because he presented direct evidence of the circumstances of the shooting which proved self-defense and the State presented only circumstantial evidence to support its theory of what happened.But witness credibility is a matter for the jury, and to the extent that Roberts testified that he acted in self-defense, the jury was free to either accept or reject that testimony.Knight v. State,271 Ga. 557, 559(1), 521 S.E.2d 819(1999).What is more, questions regarding the reasonableness of hypotheses are generally to be decided by the jury, and in a case in which the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis except that of the guilt of the accused, the jury's finding of guilt will not be disturbed unless the verdict is legally insupportable.Clark v. State,271 Ga. 27, 28(1), 518 S.E.2d 117(1999).The evidence was sufficient to enable the jury to find Roberts guilty beyond a reasonable doubt of the crimes with which he was charged.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.The trial court did not abuse its discretion in denying Roberts a continuance.OCGA § 17-8-22;Martin v. State,268 Ga. 682, 683(2), 492 S.E.2d 225(1997).Roberts moved for a continuance on June 7, 1999, the day before trial was scheduled to begin on the basis that defense counsel did not have adequate time to prepare, being unable to complete investigation of the case or interview witnesses.Yet the record indicates that by the time of the motion, defense counsel had represented Roberts for approximately six months, and counsel acknowledged the State's timely service of discovery material, that the State had been "very helpful," and that it had given "all kinds of information."In addition, the State had discussed its witnesses' anticipated testimony and the "meat" of the State's case so that defense counsel could focus on particular witnesses, any corresponding exhibit numbers and the Georgia Bureau of Investigation (GBI) case file.As the State observed at the hearing in the matter, Roberts's claim was self-defense, which did not involve other eyewitnesses.SeeRoland v. State,266 Ga. 545, 546(3), 468 S.E.2d 378(1996).Also, at the hearing, the State agreed to attempt to make its witnesses, especially the GBI agent who did the blood spatter analysis, available to defense counsel ahead of trial and to give counsel"every accommodation."Moreover, Roberts has failed to demonstrate any harm from the denial of the continuance.Lee v. State,258 Ga. 82, 84(3), 365 S.E.2d 99(1988).

3.On June 7, 1999, the day before trial, Roberts also filed a motion for a change of venue asserting that pretrial publicity would prevent a fair trial in Ben Hill County.In the motion, he asserted that two major Ben Hill and Irwin County newspapers published articles regarding the crimes and similar publicity was broadcast over radio and television in Ben Hill County, that the victim was a well-known citizen with high public visibility, and that the murder evoked great passion and prejudice in the community.Roberts complains that he was unable to present affidavit or oral testimony in support of his motion because the court erroneously failed to grant a continuance.But the complaint is unavailing.

Even though in his written change of venue motion Roberts requested, inter alia, a continuance²"to allow time for proper investigation of the prejudice in the local community," at the hearing on the defense motions, defense counsel did not ask for a continuance to contest venue.SeeDivision 2, supra.Nor was there any explanation of why six months had not been sufficient time to investigate any prejudice due to pretrial publicity.In fact, counsel only commented that "at some point" it might "[become] apparent" that there should be a change of venue.Moreover, Roberts now fails to demonstrate either inherent or actual prejudice so as to warrant a change of venue.Berry v. State,267 Ga. 605, 606(2), 481 S.E.2d 203(1997).

4.Roberts contends that the trial court erred in overruling his objection to Deputy Young testifying about the contents of State's ExhibitNo. 1, the documents...