Winters v. State

• Decision Date: 18 February 2019
• Docket Number: S18A1234
• Citation: 305 Ga. 226,824 S.E.2d 306
• Parties: WINTERS v. The STATE.
• Court: Georgia Supreme Court

305 Ga. 226

824 S.E.2d 306

WINTERS

v.The STATE.

S18A1234

Supreme Court of Georgia.

Decided: February 18, 2019

David Gladston Daniell, DANIELL LAW FIRM, LLC, 96 Tommy Stalnaker Drive, Suite A, Warner Robbins, Georgia 31088, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Min-soo Youn, Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Daniel Patrick Bibler, Deputy Chief A.D.A., George Herbert Hartwig, III, District Attorney, Marie R. Banks, A.D.A., HOUSTON COUNTY DISTRICT ATTORNEY'S OFFICE, 201 North Perry Parkway, Perry, Georgia 31069, for Appellee.

Peterson, Justice.

Willie Winters III appeals his conviction for felony murder in connection with the January 10, 1987 shooting death of Stephen Gary Jones.¹ Winters argues that (1) the evidence was insufficient to convict him of felony murder and the trial court erred by (2) admitting a witness’s post-hypnotic statement and (3) failing to admit a section of a GBI report as a public record under OCGA § 24-8-803 (8) (C). Winters also argues that his counsel rendered constitutionally ineffective assistance by (4) relying on an alleged unwritten stipulation to admit a section of the GBI report and (5) failing to move for either a mistrial or a continuance when it became clear the report would not be admitted. We affirm.

The trial evidence viewed in the light most favorable to the verdict showed that at about 1:00 a.m. on the morning of January 10, 1987, Lori Leary and Stephen Gary Jones left a bar together and got into Jones’s Camaro. Jones sat in the driver’s seat, and Leary sat in the passenger’s seat. They talked in the parking lot while Leary rolled down the window to smoke a cigarette. Leary did not see Jones with a gun. Winters approached the car, reached into the car across Leary, said "you owe me," and fired two shots at Jones. Leary forced her way out of the car, pushing the door into Winters, and ran back to the bar for help.

Jones and Winters then began to exchange gunfire. Winters used a .22-caliber handgun while Jones used a .45-caliber weapon. The exchange left Jones mortally wounded

and Winters critically injured. After the gunfight, Winters took off in Jones’s Camaro.

The police found the Camaro crashed in a ditch nearby; Winters was inside the car. There was a bullet hole in the driver’s side mirror. The police found a .22-caliber gun in the car and a .45-caliber handgun next to Jones’s body in the parking lot. Jones’s fatal wounds

were caused by the .22-caliber handgun found in the car.

1. Winters challenges the sufficiency of the evidence to convict him of felony murder. He has continually claimed that he acted in self-defense and claims that it is impossible to determine who shot first and that Leary, the only eyewitness, gave contradictory versions of the events at trial. But it is for the jury — not this Court — to resolve conflicts in evidence, determine the credibility of witnesses, and assess questions of justification, including self-defense. OCGA § 24-6-620 ; Jackson v. State, 279 Ga. 721, 721, 620 S.E.2d 828 (2005) ; Harris v. State, 279 Ga. 304, 306 (2), 612 S.E.2d 789 (2005) ; Harden v. State, 278 Ga. 40, 41 (1), 597 S.E.2d 380 (2004). We must view the facts in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the evidence shows that Winters walked up to Jones, pulled a gun on him, shot him multiple times, then fled the scene. On those facts, a rational trier of fact could have found Winters guilty beyond a reasonable doubt of the crime for which he was convicted.

2. During the initial investigation, Leary told law enforcement that Winters "reached across the seat" before shooting Jones. After making that statement, but before trial, Leary underwent hypnosis

. Later on at trial, Leary testified regarding the same moment: "There was a hand placed across my face." The trial court admitted the statement over Winters’s objection, explaining that it is merely a "different description of the same fact," and that the law does not require the witness to use the "exact same words" as before. Winters argues that the trial court erred when it overruled his objection to this testimony because it was not identical to Leary’s pre-hypnosis statement. We disagree.

The rule regarding the admissibility of statements by a witness who has undergone hypnosis

is clear: the witness’s post-hypnotic testimony cannot differ from her pre-hypnotic statements. Walraven v. State, 255 Ga. 276, 282 (5), 336 S.E.2d 798 (1985) (The witness "may only testify, for the party subjecting the witness to hypnosis, as to the specific content of recorded statements that [she] has made prior to hypnosis, or as to events occurring after the hypnosis session.").² In short, the "testimony will simply be considered frozen ... as of the date of the hypnosis

." Id. This rule, however, is not about semantics but substance; it does not compel the witness to parrot her previous statements as if reading from a script. This standard instead limits the witness’s testimony to the "substance" of her pre-hypnotic statements. Id. A trial court’s determination regarding the admissibility of evidence is reviewed for an abuse of discretion. See Ramirez v. State, 303 Ga. 232, 235, 811 S.E.2d 416 (2018).

Here, the substance of Leary’s pre-hypnotic statement and her post-hypnotic statement was essentially the same and contains the same principal facts and details. In her pre-hypnotic statement, she said that a man reached across the passenger seat. In her post-hypnotic statement, Leary said that, when she was in the passenger seat, a man put his hand across her face. Under these circumstances, the trial court did not abuse its discretion in admitting Leary’s testimony.

3. Winters argues that the trial court erred by failing to admit a portion of a GBI report relating to bite marks on Leary’s arm. We conclude that any error was harmless.

At trial, Leary was asked during cross-examination about bite marks on her arm. She testified that she told police that Winters had bitten her. Winters introduced two exhibits depicting the bite marks. Later, during the direct examination of Officer Gaylen Knowl, the State introduced a picture of Winters’s teeth. On cross-examination, Winters introduced photographs of dental impressions of, among others, Leary and himself. Winters then sought to admit a section of a GBI report evaluating the bite mark and dental impressions. Winters claimed that the State had agreed that the dental impression evidence could be admitted because the State’s ballistic expert, one of several involved in the investigation, signed the report as a whole. The State objected to the ballistics expert testifying regarding that section of the report because he was not involved in that portion of the investigation. The State also said it had no intention of arguing that Winters bit Leary and that it introduced the picture of Winters’s teeth only because it was the best picture of his face and beard. The trial court found that the parties had a misunderstanding about the admission of the report.

Winters then moved to admit the report as a public record under OCGA § 24-8-803 (8) (c). The trial court denied Winters’s motion to admit the report, concluding that the public record exception did not apply to investigative conclusions, the report was not a public record, and that it would not allow in an expert opinion without an expert witness to attest to its veracity. Winters now argues the evidence should have been admitted to impeach Leary.

Even if the decision of the trial court to not admit the section of the GBI report at issue into evidence was error — a question that we do not resolve — it was harmless. "The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict." Smith v. State, 299 Ga. 424, 432 (2) (d), 788 S.E.2d 433 (2016) (citation and punctuation omitted); see also OCGA § 24-1-103 (a). In assessing harmfulness, we review the record "de novo and weigh the evidence as we would expect reasonable jurors to have done ...." Smith, 299 Ga. at 432 (2) (d), 788 S.E.2d 433 (citation and punctuation omitted).

Winters argues that the GBI report was essential to impeach Leary’s credibility, but her credibility already had been challenged repeatedly by other evidence. On cross-examination, trial counsel elicited from Leary that she did not remember but also did not deny having given a false name to the police or falsely claiming someone had followed her to her car before the shooting, had a drinking problem, had been drinking excessively on the night of the shooting, was unsteady on her feet, and lied about her certainty as to what the shooter said. She even testified that she did not initially know who had bitten her. Moreover, the State never argued to the jury that Winters bit Leary; trial counsel admitted that he was the one who raised the issue.

Leary’s own admissions placed the question of her credibility, including as it relates to who bit her, squarely...