Welbon v. State

• Decision Date: 01 May 2017
• Docket Number: S17A0359
• Citation: 799 S.E.2d 793
• Parties: WELBON v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 106

799 S.E.2d 793

WELBON

v.The STATE.

S17A0359

Supreme Court of Georgia.

Decided: May 1, 2017

Eric J. Taylor, OFFICE OF THE PUBLIC DEFENDER, 100 Peachtree Street, NW, Suite 1600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Vanessa Therese Meyerhoefer, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, F. McDonald Wakeford, FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, SW, Third Floor, Atlanta, Georgia 30318, for Appellee.

PETERSON, Justice.

Wayne Welbon appeals his conviction for the murder of Taurean Reeves.¹ Welbon argues on appeal that (1) his trial counsel was ineffective for failing to move to strike for cause a certain prospective juror; and (2) the trial court erred by allowing the State to present testimony regarding statements he allegedly made to the police, contending any such statements were given involuntarily. Because the trial court applied the wrong legal standard by erroneously placing the burden on Welbon to show that his statements were involuntary, and because we cannot say at this stage that there was no evidence before the trial court that would authorize the grant of a motion to suppress, we vacate the trial court's order denying Welbon's motion for new trial and remand this case to the trial court for consideration of Welbon's claim of involuntariness under the proper standard.

1. The evidence at trial showed as follows: Welbon and Reeves sold drugs out of a green and white house at 2328 St. James Drive in Fulton County. Based on a tip, police on February 22, 2013 found Reeves's body in a area of vegetation behind the house. Reeves had multiple gunshot wounds

that appeared to be rifle wounds. When police searched the house, they found bullet holes in a couch and wall and blood on the couch, walls, and floor. A GBI forensic biologist testified that testing of a piece of fabric from the couch indicated the presence of blood and DNA matching that of Reeves. A firearms examiner testified that all but four of the several dozen bullets and bullet fragments collected from the house and Reeves's body were fired from one gun, consistent with a .223 caliber rifle, which the firearms examiner testified could be an AK style gun. Police found on Welbon's cell phone a picture of him holding two rifles.

Jerry Gay, a convicted felon who lived across the street from the green and white house and ran errands for Reeves and Welbon, testified at trial that he was awoken by the sound of gunshots one morning in February 2013. Gay testified that he later encountered Welbon, who said, "I killed him." Gay and Welbon then went into the green and white house, which smelled like gunpowder, Gay testified. The two went out the back door of the house, said Gay, where Gay saw Reeves's body lying on the ground and helped Welbon move it deeper into the vegetation. Gay did not say anything to police until two weeks later. Gay testified that Welbon "always say, I am going to kill him," referring to Reeves; "He says he was tired of putting money back in the pot."

Welbon did not testify, but a detective testified, over objection, that Welbon made certain statements to police.² In his interview with police, Welbon did not say that he killed Reeves. But, according to the detective's testimony, Welbon said that he and Reeves sold drugs out of the white and green house and would sometimes sleep or hang out in the house next door. The detective testified that Welbon said he and Reeves shared a key to the drug house and customers generally were not allowed inside but would conduct business through a window. The detective also testified that Welbon said he had some issues with Reeves over money. The detective said Welbon also indicated in the interview that there was an AK-type rifle in "the residence," in addition to two handguns that he had mentioned in an earlier phone conversation with the officer.

Welbon does not challenge the sufficiency of the evidence. Nevertheless, we have independently reviewed the record and conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Welbon was guilty of the crimes for which he was convicted under the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Welbon argues on appeal that the trial court erred in allowing the State to present testimony regarding the statements he made to police, because those statements were made involuntarily and thus used in violation of the Due Process Clause of the Fourteenth Amendment. Welbon filed a motion to suppress statements he made to police, and the trial court held a mid-trial Jackson-Denno hearing about the voluntariness of the statements. At that hearing, the same detective testified that Welbon was interviewed for three to three-and-a-half hours at a police station after he was arrested. Welbon wore a leg shackle that was attached to the floor, the detective testified. According to the detective, officers made no threats or promises, and Welbon never said he wanted to stop the interview. At some point, the detective told Welbon, "You and I have to have a conversation" or something to that effect, which the detective acknowledged could have been interpreted by a suspect to mean he had no choice but to participate in the interview if the suspect took the statement "extremely literally." Welbon was advised of his Miranda rights during the interview, the detective testified. During the hearing, the trial court also viewed some portion of a videotape of the interview.³

After hearing evidence and argument on the suppression issue, the trial court said simply, "All right. I am going to allow the statement." The detective subsequently testified before the jury as to Welbon's statements, including those statements noted above in which Welbon, while not confessing to the shooting, implicated himself in the charged crimes. The jury found Welbon guilty on all charges. Welbon filed a motion for new trial, claiming that the trial court erred in admitting his custodial statements.

Following a hearing, the trial court issued a written order denying Welbon's motion, concluding as to the voluntariness of Welbon's statements that:

Welbon has not carried his burden in his final enumeration of error, as this Court ruled at his Jackson-Denno hearing that his statements were voluntarily made. In a Jackson-Denno hearing the defendant must prove by a totality of the circumstances that his statements were involuntarily made. At the Jackson-Denno hearing in the instant case, this Court held that Welbon had not carried his burden, and that a totality of the circumstances demonstrated that Welbon made his statements voluntarily.

In determining whether a defendant's statement was voluntary as a matter of constitutional due process, a trial court must consider the totality of the circumstances. See State v. Chulpayev , 296 Ga. 764, 779 (3) (b), 770 S.E.2d 808 (2015). The State bears the burden of demonstrating the voluntariness of a defendant's statement by a preponderance of the evidence. See Lego v. Twomey , 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). In reviewing such a mixed question of fact and law, we accept the trial court's finding on disputed facts and credibility of witnesses unless clearly erroneous but independently apply the law to the facts. State v. Troutman , 300 Ga. 616, 617–18, 797 S.E.2d 72 (2017).

Here, the trial court's statements show that it proceeded under the premise that Welbon bore the burden of proof on the issue of voluntariness. But this burden rests with the State. See Lego , 404 U.S. at 489, 92 S.Ct. 619. "Where the trial court has used a wrong standard in reaching its conclusion, a remand may be...