Wilson v. State

• Decision Date: 23 February 2009
• Docket Number: No. S08A2035.,No. S08A1696.,S08A1696.,S08A2035.
• Citation: 675 S.E.2d 11,285 Ga. 224
• Parties: WILSON v. The STATE Frazier v. The State.
• Court: Georgia Supreme Court

285 Ga. 224

675 S.E.2d 11

WILSON v. The STATE

Frazier v. The State.

No. S08A1696.

No. S08A2035.

Supreme Court of Georgia.

February 23, 2009.

Reconsideration Denied April 9, 2009.

Thomas J. Ford, III, Alpharetta, for appellant (case no. S08A1696).

Lee W. Fitzpatrick, for appellant (case no. S08A2035).

Patrick H. Head, District Attorney, Amelia G. Pray, Jesse D. Evans, Dana J. Norman, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Reggie A. Lampkin, Assistant Attorney General, for appellee.

BENHAM, Justice.

Appellants Travis Wilson and Lanny Frazier were indicted and tried together, and both were found guilty of murdering Waylon George and of several other crimes.¹ On appeal, Wilson contests the trial court's rulings on the voluntariness of a post-arrest statement he made to police and on the denial of his motion to sever his trial from that of Frazier. Frazier also takes issue with the voluntariness of his post-arrest statement to police, and contends the trial court erred when it imposed sentences on both the malice murder and the aggravated assault convictions.

1. The State presented evidence that the victim was shot in the parking lot of a Cobb County apartment complex where he had arranged to meet someone to purchase cocaine. A woman with the victim testified she had driven the victim to the apartment complex and that a white Montero sport utility vehicle parked beside her car shortly after she and the victim arrived. The victim exited the witness's car to dispose of fast-food wrappings and, as he returned, the witness heard him say "Oh" and saw him raise his hands. She then heard a shot and saw a person with a gun leaning out the window of the passenger side of the white SUV. The white SUV then left the scene.

Using telephone numbers recently stored on the victim's cellular telephone, police learned that co-indictee Andrew Markus Foster ² knew the victim had $1,500 and knew where the victim had arranged to purchase cocaine. Using Foster's telephone records, police discovered Foster had made telephone calls to appellants shortly before the victim was killed. Upon their arrests, Wilson and Frazier separately received notice of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), separately executed a written waiver of those rights, and separately underwent questioning by police. Digital recordings of the interviews were made but were not played before the jury. Rather, during the State's case-in-chief, a detective testified to statements made by Wilson and Frazier during their separate interviews, using a transcript prepared by the State. Wilson told police Foster had called him and asked him to rob someone who was carrying $1,500. Wilson drove his mother's white Montero SUV to Foster's home where a gun was placed in his vehicle and he was told where the victim was located and the color and type of car he was using. Wilson arrived at the site and saw the victim get shot. He returned to Foster's house where the weapon, which he described as a "rifle-type," was returned to Foster. In his interview, appellant Frazier told police that Foster had called him and asked him to rob someone of $1,500 and to come to Foster's home for a weapon. Frazier took the rifle, which he knew to be loaded, from Foster and learned from Foster where to find the victim and what type of car he was using. Frazier said that, as the victim walked back to his vehicle from the trash dumpster, Frazier put Foster's rifle out the window and told the victim to "give it up." Frazier told police the rifle fired, striking the victim, when the victim yelled and grabbed the barrel of the rifle. After describing the weapon and looking at pictures of various firearms, Frazier identified the weapon used as a Ruger .223-caliber semi-automatic rifle.

Police recovered such a firearm, measuring 37 inches, from the home of Foster's father. A firearms examiner testified that testing established that the .223-caliber cartridge case found at the scene of the shooting had been fired from that rifle. The firearms examiner fired a series of shots from the rifle, with each shot fired six inches farther away from a target than the previous shot, and the test revealed that stippling and powder residue were deposited on the target up to the point when the rifle was fired from a maximum of three feet from the target. The medical examiner who had performed an autopsy on the victim testified that the lack of stippling and powder residue on the victim and his clothing led him to conclude that the muzzle of the rifle was more than three feet from the victim when the gun was fired. He testified that, had the victim been holding the barrel of the rifle at the time it was fired, the victim's hands would have burn marks and his skin and clothing would have contained powder residue. The victim's hands were not burned and there was no residue on his skin or clothing.

The evidence was sufficient to authorize a rational trier of fact to find appellants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant Frazier contends the trial court erred when it did not find that his aggravated assault conviction merged as a matter of fact into his malice murder conviction, and imposed sentences on both convictions. OCGA § 16-1-7(a) provides a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense. Drinkard v. Walker, 281 Ga. 211, 212, 636 S.E.2d 530 (2006). One may not be convicted of more than one crime if one crime is included in another (OCGA § 16-1-7(a)(1)), and, for purposes of this appeal, aggravated assault is included in the crime of malice murder when aggravated assault "is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [malice murder.]" OCGA § 16-1-6(1). When the victim of both the aggravated assault and the malice murder is the same person, the aggravated assault generally is a crime included in the malice murder. See, e.g., Bell v. State, 284 Ga. 790, 791(1), 671 S.E.2d 815 (2009); Ludy v. State, 283 Ga. 322(4), 658 S.E.2d 745 (2008); Teal v. State, 282 Ga. 319, n. 1, 647 S.E.2d 15 (2007). However, in light of the wording of the count of the indictment charging aggravated assault in the case at bar and the instructions given the jury by the trial court, we conclude that aggravated assault, as pled and proven in this case, did not merge as a matter of fact into malice murder.

The malice murder count of the indictment charged Frazier with causing the victim's death by shooting him with a firearm and specified the weapon as a .223-caliber rifle. To establish the crime, the State proved that the victim was killed when, with malice aforethought, Frazier shot him with a .223-caliber rifle. The aggravated assault count charged Frazier with assault and listed two aggravating factors stated in the conjunctive—with intent to rob and with a deadly weapon. See OCGA § 16-5-21(a)(1), (2). The trial court instructed the jury that both aggravating factors were material elements of the crime as pled and both had to be proven in order to convict the defendants of aggravated assault. As a result, in order to establish that Frazier committed aggravated assault as pled in the indictment, the State was required to show not only that Frazier shot the victim, but that he did so with the intent to rob him. In light of the additional aggravating factor set out in the indictment and deemed a material element of the crime by the trial court, aggravated assault was not established by proof of the same or less than all the facts required to establish proof of malice murder. Drinkard v. Walker, supra, 281 Ga. at 213, 636 S.E.2d 530. Since the two crimes did not merge as a matter of fact, the trial court did not err when it imposed sentences for both crimes.

3. Each appellant contends his inculpatory custodial statement should have been suppressed as involuntarily made because it was induced by hope of benefit. Wilson asserted his inculpatory statement was induced by the lead detective's statement that his report would notify its readers of the identity of those who cooperated with police and of those who did not, and the detective's query as to how Wilson wished to be denoted. The detective told Wilson "the best thing you can do is level with us" and encouraged Wilson to "do the right thing and help yourself out...." The trial court denied the motion to suppress, finding that Wilson's statement was freely and voluntarily given. Frazier took issue with the detective's comment that Frazier could help himself by talking to the detective, the detective's offer to report Frazier's cooperation to the judge, and the detective's observation that a judge and jury would see Frazier as a "hard, stone-cold drug dealer killer" if he did not make a statement to police. The trial court denied Frazier's motion to suppress.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Ritter, 268 Ga 108(1), 485 S.E.2d 492 (1997). OCGA § 24-3-50 requires that an admissible confession "must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." "The promise of a hope or benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect." White v. State, 266 Ga. 134(3), 465 S.E.2d 277 (1996). Generally, the "hope of benefit" to which the statute refers has been construed as a hope of lighter punishment. Preston v. State, 282 Ga. 210(2), 647 S.E.2d 260 (2007) (in the absence of an explicit...