Welch v. State, 41981
| Decision Date | 03 July 1985 |
| Docket Number | No. 41981,41981 |
| Citation | 331 S.E.2d 573,254 Ga. 603 |
| Parties | WELCH v. The STATE. |
| Court | Georgia Supreme Court |
Robert F. Oliver and William R. Oliver, Oliver & Oliver, Clarkesville, for George Welch, Sr.
Michael H. Crawford, V.D. Stockton, Dist. Attys., Clayton, and Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., Staff Asst. Atty. Gen., for the State.
Appellant, George Welch, Sr., was convicted in Rabun County on two counts of murder. He was sentenced to death on one count and to life imprisonment on the other. The case is here on direct appeal, for review under the Unified Appeal Procedure, and for the sentence review required by OCGA § 17-10-35. 1
Shortly after 8:00 p.m. on July 19, 1983, Reverend J.C. Quilliams returned to the residence of Jay Fisher, having taken the latter's housekeeper, Jane Snyder, to church services at a local nursing home. Reverend Quilliams left the house at 8:20 p.m. Twenty minutes later, two customers at a fruit stand across the road heard gun shots, screaming, and then more gunshots. At approximately 9:00 p.m., George Welch visited a local tavern, bleeding from wounds to his head and hand. He told one of the bartenders (a relative) that he had been to the Fisher place and had "shot both them son-of-a-bitches," the old man four or five times, and the woman who lived with him, twice.
The victims' bodies were discovered the next day by a neighbor. Jay Fisher had been shot five times, and Jane Snyder twice. A .38 caliber pistol was discovered by investigating officers under a living room chair. A number of .22 casings were found at the scene, and four .22 bullets were recovered from the victims' bodies. Ballistics examination showed that the victims had been shot with the same .22 caliber gun. A .38 caliber bullet was found imbedded in the ceiling of Jay Fisher's bedroom.
Blood found on Ms. Snyder's leg, on a doorknob, and on a porch handrail was consistent with that of Welch (and inconsistent with 98% of the general population, including the two victims).
Welch testified that he went to see Jay Fisher about a "main screen" (used in the rock-crushing business) that he had left on Fisher's property years earlier. Fisher was in bed and Welch sat down in a nearby chair. They were discussing matters and suddenly Fisher said, "All you can get is the top of your ... head blowed off." Then he shot Welch. The bullet penetrated his hand and glanced off his head. Welch testified that he remembered no further events of the evening.
We have reviewed the record pursuant to Rule IV(B)(2) of the Unified Appeal Procedure (252 Ga. A-13 et seq.) and find that a rational trier of fact could find from the evidence beyond a reasonable doubt that Welch murdered Jay Fisher and Jane Snyder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Prior to trial, the state gave Welch written notice of the statutory aggravating circumstances on which the state intended to rely, including the state's contention that the murders occurred during the commission of the offense of burglary. See OCGA § 17-10-30(b)(2). Welch filed a motion in limine seeking to preclude the state from "mentioning in either [its] opening statements or closing statements, or during any part of [its] case-in-chief, [its] contentions [that Welch was] in the commission of a burglary during the ... indicted offenses [which did not include burglary] unless a proper case is first shown."
The court withheld a final ruling on the motion until the close of the evidence at the guilt phase of the trial. Evidence had been presented that the latch to the screened front door was bent as if it had been forced open, and the state argued that whether or not a burglary had been committed by the defendant was a jury question. The court agreed and denied the defense motion. Moreover, the court soon thereafter announced its intention to charge and did charge felony murder, the underlying felony being burglary. Welch excepted to this charge.
The jury was given a verdict form, as follows:
VERDICT
COUNT I--DEATH OF JAY FISHER
We, the jury find the Defendant ________________________ of murder.
We, the jury find the Defendant ________________________ of voluntary manslaughter.
We, the jury find the Defendant ________________________ of murder.
The jury wrote the word "Guilty" (of murder) on both counts.
In his motion for new trial, Welch complained of the felony murder charge.
Under the Unified Appeal Procedure, this court must "review each assertion of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court." Rule IV(B)(2). In light of this rule, we shall address the trial court's charge on felony murder.
" " McCrary v. State, 252 Ga. 521, 523, 314 S.E.2d 662 (1984) (quotingGoldin v. State, 104 Ga. 549, 550, 30 S.E. 749 (1898).
Here, the indictment charged two counts of malice murder. Burglary was not charged, nor were facts alleged which would show that the offense of burglary was committed. Therefore, Welch could not lawfully have been convicted of felony murder. McCrary v. State, supra.
If the jury found Welch guilty of felony murder, or if there is a reasonable possibility that it did so, Welch's convictions may not stand. Crawford v. State, 254 Ga. 435 (1), 330 S.E.2d 567 (1985). Construing the verdict form together with the charge of the court, it is clear that the jury was ostensibly authorized to find Welch guilty of murder on each count of the indictment on either a felony murder theory or a malice murder theory. Thus, we cannot tell by the verdict which theory the jury relied upon. Since it is "impossible for us to determine if the jury found the defendant guilty of malice murder or felony murder[,]" id. at 439, 330 S.E.2d 571, we must reverse.
Because the evidence is sufficient to support convictions for malice murder, the state may retry Welch for malice murder. Crawford v. State, supra.
2. For reasons stated in Spivey v. State, 253 Ga. 187(5), 319 S.E.2d 420 (1984), we conclude that the trial court did not err by failing to instruct the jury that if it recommended mercy on each of the two murder counts, the jury could recommend that the resulting life sentences be served consecutively. Anything to the contrary in Anglin v. State, 244 Ga. 1(1), 257 S.E.2d 513 (1979), is hereby overruled. Enumeration 2 therefore presents no error.
3. Two days after the victim's bodies were discovered, investigators received information from an informant that Welch had been treated for a gunshot wound. Investigator Don Page went to see Welch, who admitted that his hand had been injured, but claimed that he had injured it while shoeing a horse. The next day, the sheriff paid Welch a visit. According to Welch's son, who was present, the sheriff said "that he had heard rumors, and he wanted to obtain a blood sample, would it be all right, and [Welch] said yes; said I ain't got nothing to hide." A blood sample was obtained, and the results of the analysis were admitted at trial.
In his fourth enumeration of error, Welch contends that taking the blood sample violated his constitutional privilege against self-incrimination. We do not agree. Even compelled blood tests do not violate the self-incrimination clause of the United States Constitution, Schmerber v. California, 384 U.S. 757, 760-65, 86 S.Ct. 1826, 1830-32, 16 L.Ed.2d 908 (1966), nor require a suspect to "give testimony tending in any manner to be self-incriminating" within the meaning of Art. I, Sec. I, Par. XVI of the Georgia Constitution. Raines v. White, 248 Ga. 406, 284 S.E.2d 7 (1981). (Emphasis supplied.)
A suspect's Fourth Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, Schmerber v. California, supra; however, Welch raises no Fourth Amendment claim, and in any event, in view of the undisputed testimony that Welch was...
To continue reading
Request your trial
-
Hagans v. State
...offense either if it meets the "elements test" or if it is suggested by the language of the indictment. See, e.g., Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985); Johnson v. State, 464 N.E.2d 1309 A defendant is more likely to know if an offense is a lesser included offense under the el......
-
Cooper v. State, S03A1255.
...Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood." Welch v. State, 254 Ga. 603, 607(3), 331 S.E.2d 573 (1985), citing Schmerber v. California, 384 U.S. 757, 760-765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). So too is the extraction o......
-
Hicks v. State
...have to decide whether he was guilty of either. The court's charge on malice murder was not burden shifting. See Welch v. State, 254 Ga. 603(5), 331 S.E.2d 573 (1985). The court did not err by recharging the jury only on the points requested. Williams v. State, 249 Ga. 6(6), 287 S.E.2d 31 (......
-
Cook v. State, 42661
...61 L.Ed.2d 560 (1979). The jury was not required to believe Cook's testimony over that of the state's witnesses, Welch v. State, 254 Ga. 603(5), 331 S.E.2d 573 (1985), nor was the state required to establish a motive beyond a reasonable doubt, since motive is not an element of the offense o......