Wilson v. State

Citation271 Ga. 811,525 S.E.2d 339
Decision Date01 November 1999
Docket NumberNo. S99P0651.,S99P0651.
PartiesWILSON v. The STATE.
CourtSupreme Court of Georgia

OPINION TEXT STARTS HERE

Waddell, Emerson & Buice, John H. Bradley, Jon P. Carr, Milledgeville, for appellant.

Fredric D. Bright, District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Beth A. Burton, Assistant Attorney General, for appellee. BENHAM, Chief Justice.

A jury convicted Marion Wilson, Jr. of malice murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun.1 The jury fixed the sentence for the murder at death, finding as a statutory aggravating circumstance that Wilson committed the murder while engaged in the commission of an armed robbery. OCGA § 17-10-30(b)(2). For the reasons that follow, we affirm.

The evidence at trial showed that on the night of March 28, 1996, the victim, Donovan Corey Parks, entered a local Wal-Mart to purchase cat food, leaving his 1992 Acura Vigor parked in the fire lane directly in front of the store. Witnesses observed Wilson and Robert Earl Butts standing behind Parks in one of the store's checkout lines and, shortly thereafter, speaking with Parks beside his automobile. A witness overheard Butts ask Parks for a ride, and several witnesses observed Wilson and Butts entering Parks's automobile, Butts in the front passenger seat and Wilson in the back seat. Minutes later, Parks's body was discovered lying face down on a residential street. Nearby residents testified to hearing a loud noise they had assumed to be a backfiring engine and to seeing the headlights of a vehicle driving from the scene. On the night of the murder, law enforcement officers took inventory of the vehicles in the Wal-Mart parking lot. Butts's automobile was among the vehicles remaining in the lot overnight. Based upon the statements of witnesses at the Wal-Mart, Wilson was arrested. A search of Wilson's residence yielded a sawed-off shotgun loaded with the type of ammunition used to kill Parks, three notebooks of handwritten gang "creeds," secret alphabets, symbols, and lexicons, and a photo of a young man displaying a gang hand sign.

Wilson gave several statements to law enforcement officers and rode in an automobile with officers indicating stops he and Butts had made in the victim's automobile after the murder. According to Wilson's statements, Butts had pulled out a sawed-off shotgun, had ordered Parks to drive to and then stop on Felton Drive, had ordered Parks to exit the automobile and lie on the ground, and had shot Parks once in the back of the head. Wilson and Butts then drove the victim's automobile to Gray where they stopped to purchase gasoline. Wilson, who was wearing gloves, was observed by witnesses and videotaped by a security camera inside the service station. Wilson and Butts then drove to Atlanta where they contacted Wilson's cousin in an unsuccessful effort to locate a "chop shop" for disposal of the victim's automobile. Wilson and Butts purchased two gasoline cans at a convenience store in Atlanta and drove to Macon where the victim's automobile was set on fire. Butts then called his uncle and arranged a ride back to the Milledgeville Wal-Mart where Butts and Wilson retrieved Butts's automobile.

1. Viewed in the light most favorable to the verdict, we find that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Wilson was guilty of the crimes of which he was convicted and to find beyond a reasonable doubt the existence of a statutory aggravating circumstance. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2). The State was not required to prove that Wilson was "the triggerman" in order to prove him guilty of malice murder. Even assuming that Wilson did not shoot the victim, there is sufficient evidence that he intentionally aided or abetted the commission of the murder or that he intentionally advised, encouraged, or procured another to commit the murder to support a finding of guilt. OCGA § 16-2-20(b)(3), (4). See Mize v. State, 269 Ga. 646(1), 501 S.E.2d 219 (1998); Chapman v. State, 263 Ga. 393, 435 S.E.2d 202 (1993); Gambrel v. State, 260 Ga. 197, 391 S.E.2d 406 (1990).

The same standard of review of the evidence is applicable to the denial of the defendant's motion for a directed verdict. Miller v. State, 270 Ga. 741(1), 512 S.E.2d 272 (1999); Smith v. State, 267 Ga. 502(3), 480 S.E.2d 838 (1997). Accordingly, we disagree with Wilson's contention that his motion for a directed verdict was improperly denied by the trial court.

2. Wilson claims that his rights to freedom of speech and freedom of association were violated during the penalty phase of his trial by the introduction of evidence showing his involvement with the Folks gang.2 In support of his contention, Wilson relies upon Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), wherein the U.S. Supreme Court held that a defendant's association with a racist organization was protected by the First and Fourteenth Amendments and that evidence of such an association could not lawfully be introduced unless relevant to the issues to be tried. Presentation by the State of evidence that proves "nothing more than [a defendant's] abstract beliefs[ ]" (id. at 167, 112 S.Ct. 1093) invites punishment of a criminal defendant's exercise of constitutionally protected rights. In the present case, however, evidence of Wilson's involvement with the Folks gang and of the violent nature of that gang was relevant to the issues to be decided by the jury during the sentencing phase of his trial. The State presented testimony that the Folks gang required its members to commit violent, criminal acts and that Wilson held a powerful position in the gang. The State also presented a tape-recorded statement of Wilson claiming to be the gang's "chief enforcer," Wilson's handwritten notebooks regarding the gang, and a photograph found in Wilson's residence of a young man displaying a gang hand sign. Because the evidence in question was not objected to at trial, Wilson is barred from challenging its introduction on appeal. Earnest v. State, 262 Ga. 494(1), 422 S.E.2d 188 (1992).

3. Wilson contends that the trial court allowed improper expert testimony about gangs during the sentencing phase of his trial. The testimony in question was not objected to at trial and cannot now be complained of on appeal. Id.

4. Wilson claims that self-inculpatory statements allegedly made by Robert Earl Butts to three of Butts's fellow inmates were made "during the pendency of the criminal project" (OCGA § 24-3-5) in which Wilson and Butts had been engaged as co-conspirators and, therefore, that those alleged statements should have been admitted during the guilt/innocence phase of Wilson's trial. The trial court excluded the evidence on the basis that any conspiracy between Wilson and Butts ended when Wilson gave statements to law enforcement officers revealing certain details of the crime and seeking to place blame for the murder on Butts. While we agree with the trial court that any conspiracy between Butts and Wilson ended upon Wilson's statements to authorities (Crowder v. State, 237 Ga. 141, 153, 227 S.E.2d 230 (1976)), we further add that the statutory exception to the hearsay rule upon which Wilson relies makes declarations of conspirators admissible only against other conspirators. See Dunbar v. State, 205 Ga. App. 867, 869, 424 S.E.2d 43 (1992). It is the long-standing rule in this state that declarations to third persons to the effect that the declarant and not the accused was the actual perpetrator are, as a rule, inadmissible. Timberlake v. State, 246 Ga. 488(1), 271 S.E.2d 792 (1980); Lyon v. State, 22 Ga. 399 (1857).

Furthermore, although this type of hearsay evidence is generally inadmissible (see Timberlake v. State, supra at (1), 271 S.E.2d 792), under the principles set forth by this Court in Drane v. State, 265 Ga. 255, 455 S.E.2d 27 (1995), and by the U.S. Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (failure to admit evidence of another's confession offered during guilt/innocence phase of trial constituted a violation of due process right), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (failure to admit evidence of co-indictee's confession offered at punishment phase of trial violated due process right because testimony was highly relevant to a critical issue in punishment phase and substantial reasons existed to assume its reliability), there may be exceptional circumstances that make the hearsay evidence sufficiently reliable and necessary to require its admission. However, as stated in Turner v. State, 267 Ga. 149, 155, 476 S.E.2d 252 (1996), whenever defense counsel seeks to admit this type of hearsay evidence to support a claim that someone other than the defendant is responsible for the crimes being tried, counsel:

must make a proffer in which the reliability and necessity of the hearsay evidence are thoroughly set out, and the trial court's ruling must reflect consideration of the proffered evidence and a determination that the evidence does or does not show "persuasive assurances of trustworthiness," or was made under circumstances providing considerable assurance of its reliability.

Despite being tried approximately one year after the Turner ruling was issued, Wilson, the hearsay proponent at trial, did not utilize the procedures set forth in Turner and did not obtain a ruling from the trial court evidencing its consideration of the proffered hearsay evidence under Turner. Accordingly, the trial court did not err in failing to address whether, under the standards set forth in Green, Chambers, and Drane,...

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