Wilson v. State, S17A0254

• Citation: 799 S.E.2d 757
• Decision Date: 01 May 2017
• Docket Number: S17A0254
• Parties: WILSON v. The STATE.
• Court: Supreme Court of Georgia

301 Ga. 83

799 S.E.2d 757

WILSON

v.The STATE.

S17A0254

Supreme Court of Georgia.

Decided: May 1, 2017

Andrew Santos Fleischman, GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL, 104 Marietta St. NW, Suite 600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Scott Orion Teague, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Arthur C. Walton, A.D.A., Lyndsey Hurst Rudder, Deputy D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, for Appellee.

HINES, Chief Justice.

Following the partial denial of his motion for new trial, as amended, Nicholas Wilson appeals his convictions and sentences for malice murder and other crimes in connection with the November, 2009 robbery of Cassandra James and her fatal stabbing in December, 2009. His sole challenge is that the trial court erroneously excluded an out-of-court declaration regarding certain evidence in the case. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed the following. Wilson was incarcerated on August 21, 2009 and released from jail on November 19, 2009. While in jail, he shared a room with Ernesto Powell, Cassandra James's then boyfriend. The men discovered that they both knew James as Wilson had at one time dated her. During the time that Wilson and Powell were cell mates, Powell and James talked daily and wrote letters to each other; James received monthly disability checks and she weekly transferred money into Powell's jail account. Wilson was eventually moved into a different room and Powell did not see him again.

Around noon on November 20, 2009, as Powell was having a telephone conversation with James, Wilson arrived at James's apartment located in Fulton County. Powell asked to speak with Wilson and Wilson told him that he had been released early from jail and that he was going to go with James to transfer money into Powell's jail account. Powell never received the money. Later that day, Atlanta Police got a call to come to James's apartment in connection with "someone being bound in a home" and unable to escape. The responding officers found the apartment doors locked, but managed to enter the apartment through a window. Inside, the police found James on the bedroom floor with her wrists partially bound and her ankles duct-taped together; a phone, which had been under the bed, was on the floor next to her. She told the police that her ex-boyfriend Wilson had robbed her and taken her credit card, EBT card, identification card, money, and keys to her apartment. In addition, Wilson forced her to disclose her PIN number. James further told the officers that she was "very fearful" of Wilson returning to her apartment because he had threatened to kill her if she called the police. While the officers were on the scene, James called the bank about her stolen credit card; she learned of multiple unauthorized transactions made that day, including two sales at retail stores and an ATM withdrawal. The bank determined that James was the victim of $1,160.04 in fraudulent transactions and credited her with that amount.

Following the robbery, James told her close friend, Janice Kemp, that Wilson had come to her apartment, choked her until she passed out, and duct-taped and robbed her; during the incident, Wilson told her that Powell had "a big mouth," talked too much, and related "all of [James's] business," including that she received disability checks. James changed the locks on her apartment and obtained a new cell phone.

During a telephone conversation on December 14, 2009, a crying and angry James told Kemp that Wilson's girlfriend had come to her apartment and told her that Powell had impregnated another woman. Concerned about James, Kemp called her phone the next morning, but no one answered. Kemp persisted and eventually a man answered James's phone; loud music was playing in the background. Kemp repeatedly asked the man to speak with James but he hung up the phone and did not answer Kemp's subsequent repeated calls.

The following day, December 16, 2009, Kemp went to James's apartment to check on her; she was accompanied by the apartment maintenance man. They knocked on the doors and called out to James but got no response. The front door was unlocked but the maintenance man could not push it open; the man then unlocked the patio door and Kemp entered. Kemp found James dead, blindfolded and slumped in her water-filled bathtub. The crying Kemp left the apartment and the maintenance man called the police.

James had been blindfolded with two bandannas, which were wrapped around her eyes, nose, and mouth. She was stabbed seven times in her neck, puncturing her jugular vein and carotid artery. She also sustained a cut on her right forefinger extending from the knuckle to the web of the hand, which wound

was characteristic of people trying to defend themselves while being stabbed.

The detectives called to the crime scene discovered that the front door to the apartment had been barricaded with a sofa, table, and two kitchen chairs. No weapons consistent with James's wounds

were found in the apartment. There were drops of blood on and around the bathroom sink, which tested positive for James's DNA. The front door to James's apartment appeared to have been kicked in; the door framework was splintered and fractured, the deadbolt was rendered useless, and there was a noticeable footprint on the outside of the door. Detectives were also unable to locate James's cell phone or keys inside the apartment, leading them to suspect a robbery.

Detectives were informed by United States Marshals with the Fugitive Task Force that they were searching for Wilson in relation to the November crimes against James, and that they had tracked him to a nearby apartment leased by Wilson's then girlfriend, Monica Russell. When marshals attempted to take Wilson into custody, he tried to jump from the balcony of Russell's apartment. During a subsequent search of Russell's apartment, pursuant to a search warrant, investigators found James's apartment keys and cell phone; call logs revealed calls between James's and Russell's cell phones December 14, 2009 through December 16, 2009. Photographs of Wilson's shoes were taken and the sole print was found to match the pattern of the print found on James's damaged front door.

The police investigation also revealed a 2006 incident in which Wilson choked a female acquaintance until she lost consciousness and then left with her vehicle; the abandoned vehicle was later recovered. Subsequently, as the woman and her daughter were leaving their home, the woman heard someone scream, "Bitch, you called the police." She turned around and saw Wilson, who then began to shoot at them; they ran and called police. Wilson was ultimately convicted in connection with the case.

1. Wilson does not contest the legal sufficiency of the evidence of his guilt. Nevertheless, in accordance with this Court's general practice in appeals of murder cases, this Court has reviewed the record and we conclude that the evidence at trial was sufficient to enable a rational trier of fact to find Wilson guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Wilson contends that the trial court erred in excluding evidence that the footprint on James's door was days old at the time of her death. But, the contention is unavailing.

In opening statement at trial, defense counsel told the jury that it would hear from James's property manager that a few days prior to James's death, she had gone to the rental office to report that someone had kicked in her door and to give her 30 days notice. After opening statements, the State raised a hearsay objection to the anticipated evidence, arguing that its admissibility would have to be considered under the residual exception to hearsay. See OCGA § 24-8-807.²

The trial court deferred ruling on admissibility until further discussion of the matter and until the property manager could be contacted. Later during trial, the State informed the trial court that the property manager had been contacted, and the State maintained that the alleged statement by James would not be admissible under the residual exception to hearsay in that it would fail to meet the requirement of trustworthiness or reliability as James and the property manager hardly knew each other and the property manager denied that James ever reported that her apartment door had been kicked in.

The trial court said that based upon the circumstances then before it the defense should assume that the State's objection to the alleged statement would be sustained, but that the court had an open mind on the issue and would consider any additional evidence as to trustworthiness supplied by the defense and have further discussion of the matter. Defense counsel responded that "obviously" they "wouldn't be calling" the property manager if they "hash it out and it doesn't go our way"...