Wynn v. State

• Citation: 313 Ga. 827,874 S.E.2d 42
• Decision Date: 01 June 2022
• Docket Number: S22A0103
• Parties: WYNN v. The STATE.
• Court: Supreme Court of Georgia

313 Ga. 827

874 S.E.2d 42

WYNN

v.The STATE.

S22A0103

Supreme Court of Georgia.

Decided: June 1, 2022

Jackie Lynn Tyo, Clayton County Public Defender's Office, P.O. Box 3104, Cumming, Georgia 30028, for Appellant.

Juliana Sleeper, A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fani T. Willis, District Attorney, Fulton County District Attorney's Office, 136 Pryor Street, 3rd Floor, Suite 940, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Colvin, Justice.

Bobby Leon Wynn appeals following his conviction for malice murder in connection with the death of Demontae Ware.¹ Wynn raises six enumerations of error, challenging allegedly improper impeachment evidence, the exclusion of mental-health testimony, the failure to charge the jury on a lesser-included offense, allegedly improper legal testimony, an allegedly improper self-defense charge, and cumulative error. We affirm.

The evidence presented at trial showed that Wynn, who was an inmate at the Fulton County Jail, shared a cell with Ware on September 7, 2014. In the early hours of that morning, Wynn used cloth to strangle Ware to death.

Following the strangling, a detention officer tasked with delivering food to the inmates arrived at Wynn's cell. The cell was dark, and he instructed Wynn to turn the lights on. Wynn complied and then calmly told him, "I had to do it." The officer asked, "You had to do what?" Wynn responded, "I had to kill him." The officer observed Ware on the ground but believed Wynn and Ware were playing a joke on him. He completed his task of delivering food trays before returning to the cell. At that point, the officer determined that Ware was not responding and called for assistance.

When medical personnel arrived, they found cloth pieces tied around Ware's neck and hands. The cloth was tied so tightly that it could not be removed without the use of special medical tools. Ware was taken to the hospital, where he was pronounced dead.

According to a medical examiner, strangulation could cause unconsciousness in 12 to 15 seconds, but it would not cause death absent several minutes of consistent pressure. An autopsy later revealed that Ware's strangulation had caused a hemorrhage in his neck muscles and a fracture in the hyoid bone

at the top of his neck.

Testifying in his own defense, Wynn claimed that he woke up to find Ware punching him in the back of the head and biting him. Wynn claimed that he tried to fight Ware off but got pushed up against the door, where he jammed his shoulder and scraped his back.² At that point, he said, "I was like, well, I got to do something [because] this guy's going to kill me." According to Wynn, he unraveled cloth strips that had been wrapped around his hands as makeshift boxing gloves, wrapped the strips around Ware's neck, and pulled until Ware passed out. Once Ware was "knocked out," Wynn said, he tied the strips around Ware's neck, and Ware fell to the ground. Wynn said that he then used additional cloth to tie Ware's hands behind his back so Ware could not remove the restraint on his neck and harm Wynn again. Wynn claimed that he had hit the panic button in his cell and screamed for help during the altercation and again after tying Ware's hands, but officers did not come.

An inmate who was in a nearby cell during Ware's strangulation testified that he heard Wynn yell "he's attacking me" and "help" a few times but that he did not believe Wynn's calls for help were serious because he did not think Ware would attack Wynn. The inmate further said that, although the detention officers would have known that Wynn had pushed the panic button, they likely would not have heard him yelling, and they did not respond.

1. Wynn argues that the trial court plainly erred in permitting the State to use allegations that Wynn had committed a prior sexual assault against another inmate in 2011 to impeach Wynn and in failing to instruct the jury to disregard the resulting testimony.³ We disagree.

On cross-examination of Wynn, the State sought to impeach him by asking about his prior convictions for being a felon in possession of a firearm, criminal damages to property, entering an automobile, and theft by taking.⁴ Wynn admitted that he had pled guilty to the charges. On redirect examination, defense counsel asked Wynn, "Have you ever had any convictions where you hurt anyone?" Wynn responded, "No, I never actually hurt anyone before." The following exchange then occurred on re-cross:

Q: You also just testified that you'd never hurt anyone before; is that right?

A: No.

Q: In 2011[,] you were actually investigated and the jail actually brought administrative charges against you for assaulting another cellmate of yours; is that right?

A: No. I have not been – I have not assaulted anybody in 2011.

Q: So are you saying that in 2011 you didn't sexually assault Roger Thomas in your cell on June 14th, 2011?

A: No, sir. He just said that so he could get out of the cell. ...

Q: So are you saying you didn't rape your cellmate in 2011?

A: No, I didn't rape anyone.

Defense counsel did not object to this line of questioning but instead followed up by asking Wynn, "you're saying that [the inmate] made [the rape allegation] up?" Wynn responded, "Yeah."

During its closing argument, the State argued that Wynn had not testified credibly. The State noted that Wynn had "a motive to shade and color his testimony and exaggerate it" because "[h]e's got an interest in the outcome of the case." The State further argued that, based on his trial testimony, "we already know that [Wynn is] prone to exaggerating and lying himself out of trouble." To support this contention, the State cited instances in which Wynn had lied or otherwise denied responsibility for conduct on the stand, including when he claimed that he "didn't rape [his] cellmate."

On appeal, Wynn argues that the trial court should have excluded the impeachment evidence. He contends that the evidence was clearly inadmissible because the allegations that he committed sexual assault were irrelevant, see OCGA § 24-4-401, unfairly prejudicial, see OCGA § 24-4-403, testimonial statements that violated the Confrontation Clause of the Sixth Amendment to the United States Constitution, and hearsay without an exception, see OCGA § 24-8-801 (c). He further argues that the trial court should have sua sponte given a curative instruction to address unfair prejudice arising from the impeachment evidence.

Because Wynn did not raise any objection regarding the impeachment evidence at trial and did not request a curative instruction, we review these issues only for plain error. See Grier v. State , 313 Ga. 236, 240 (3), 869 S.E.2d 423 (2022) (unpreserved Confrontation Clause and hearsay objections reviewed for plain error); Dunn v. State , 312 Ga. 471, 477 (2) (b), 863 S.E.2d 159 (2021) (unpreserved relevance objection reviewed for plain error); Castillo-Velasquez v. State , 305 Ga. 644, 652 (4), 827 S.E.2d 257 (2019) (unpreserved Rule 403 objection reviewed for plain error); Davis v. State , 302 Ga. 576, 582 (3), 805 S.E.2d 859 (2017) (failure to sua sponte give curative instruction regarding impeachment evidence reviewed for plain error). To establish plain error, a defendant must show that (1) an error occurred, which was not affirmatively waived, (2) the error was clear and obvious, (3) the error "affected his substantial rights," and (4) the error "seriously affected the fairness, integrity, or public reputation of judicial proceedings." Grier , 313 Ga. at 240-241 (3), 869 S.E.2d 423 (citation and punctuation omitted).

Here, Wynn's claim fails on the first prong of plain-error review because he has not identified any error. "When the criminal defendant takes the stand, any discrepancies in his testimony may be fully explored on cross-examination regardless of their relevance or the fact that it may reflect poorly on the defendant's character." Taylor v. State , 302 Ga. 176, 180 (3), 805 S.E.2d 851 (2017) (citation and punctuation omitted). By testifying that he had "never actually hurt anyone before," Wynn invited the State to cross-examine him on the matter in an attempt to contradict and discredit his testimony. See OCGA § 24-6-621 ("A witness may be impeached by disproving the facts testified to by the witness."). The State did just that, asking targeted questions intended to elicit testimony that Wynn had in fact hurt someone before. See Taylor , 302 Ga. at 180 (3), 805 S.E.2d 851 ("The prosecutor's cross-examining appellant about the nature of the altercation with his girlfriend was admissible for the purpose of impeachment inasmuch as appellant testified dishonestly about the reasons why he had been ejected from his girlfriend's car."); see also Anderson v. State , 307 Ga. 79, 82 (2) (b), 834 S.E.2d 830 (2019) (holding that the State was permitted to admit an interview recording "to impeach [the witness] by contradiction").

Nor did the court err in failing to exclude the impeachment evidence under OCGA § 24-4-403 ("Rule 403"), which provides:

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

"[T]he exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly." Venturino v. State , 306 Ga. 391, 395 (2) (b), 830 S.E.2d 110 (2019) (citation and punctuation omitted). Here, although Wynn argues that the State's questions "suggested that it was Wynn's nature to commit serious violent felonies against his cellmates," the State never argued to the jury that the evidence demonstrated Wynn's propensity for violence but...