Yancey v. State

• Decision Date: 29 April 2013
• Docket Number: No. S13A0096.,S13A0096.
• Citation: 740 S.E.2d 628,292 Ga. 812
• Parties: YANCEY v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 812

740 S.E.2d 628

YANCEY

v.The STATE.

No. S13A0096.

Supreme Court of Georgia.

April 29, 2013.

Long Dai Vo, for appellant.

Leonara Grant, Asst. Dist. Atty., Robert D. James, Jr., Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Clint Christopher Malcolm, Asst. Atty. Gen., for appellee.

BLACKWELL, Justice.

Appellant Derrick Yancey was tried by a DeKalb County jury and convicted of the murder of his wife, Lynda Yancey,¹ the murder of a day laborer whom Appellant had employed, Marcial Puluc, and the unlawful possession of a firearm during the commission of a felony. On appeal, Appellant contends that the trial court erred when it admitted testimony at trial and allowed the prosecuting attorney to make arguments in summation that referred to Appellant having exercised his right to remain silent, that he was denied the effective assistance of counsel to the extent that his lawyers failed to object to such testimony and argument, and that the trial court erred when it refused at a hearing on his motion for new trial to hear expert testimony that he offered in support of another claim of ineffective assistance. Upon our review of the record and briefs, we see no error, and we affirm.²

1. Viewed in the light most favorable to the verdict, the evidence shows that Appellant and Ms. Yancey were having marital problems in early 2008, and Appellant had been talking about a divorce. On June 8, Appellant—who was employed as a DeKalb County deputy sheriff—called and informed his supervisor that he would not be available to work on the following day because “he had something to do.” On the morning of June 9, Appellant went to a place where day laborers frequently gathered to seek employment, and he hired Puluc—a native of Guatemala who spoke no English and had been in the United States for only about a month—to do some work at the home that Appellant and Ms. Yancey shared.

Appellant brought Puluc to the home, where he worked in the yard for most of the morning. Around lunchtime, Appellant offered some food to Puluc, and according to Appellant, he left Puluc alone in the kitchen to eat lunch. Ms. Yancey had been away from the home in the morning, but she returned shortly after noon, and around that time, Appellant asked Puluc to mow the lawn. ³ A little while later, Appellant called 911 and reported that a day laborer had robbed and shot Ms. Yancey and that Appellant, in turn, had shot the day laborer. Appellant told the 911 operator that he was attempting to render aid to Ms. Yancey, and he allowed the operator to instruct him on the proper administration of cardiopulmonary resuscitation (CPR), notwithstanding that he previously had been certified in CPR administration. After Appellant supposedly had performed CPR for a short time, the operator heard him walk away, something that she characterized as unusual in her experience. Appellant also told the operator that Puluc was moaning, and when she asked about the gun that Puluc supposedly had used, Appellant said, “I got it. I got it away from him.”

Police officers arrived at the home within ten minutes of the 911 call, and when they arrived, they observed Appellant in his driveway, holding his service weapon, a Heckler & Koch semiautomatic handgun. When the officers went to the basement of the home, they found Ms. Yancey and Puluc, both dead. Ms. Yancey had sustained a contact gunshot wound to her left breast, another gunshot wound to her left breast as a result of a shot fired at close range, and a contact gunshot wound to her neck. All the wounds to Ms. Yancey had been inflicted with a .357 Smith & Wesson (S & W) revolver that Appellant owned. Puluc lay ten feet away from Ms. Yancey. Puluc had sustained three gunshot wounds as well, all inflicted with the H & K handgun. A significant amount of currency—approximately $2,000—was found on the floor near Ms. Yancey. And the S & W revolver that had been used to shoot Ms. Yancey—the revolver that Appellant supposedly had secured—was found on the floor by Puluc's left side.

Paramedics arrived soon after the police officers, and Appellant spoke with one of the paramedics. Appellant explained that he had hired Puluc to move furniture.⁴ Appellant said that he and Ms. Yancey had been together in the basement, that he gave Ms. Yancey a significant amount of money, that Puluc was present when he did so, that Puluc pulled out Appellant's revolver, and that Puluc demanded the money, instructing Ms. Yancey to “[g]ive me all your money.” ⁵ Puluc then shot Ms. Yancey, Appellant said, and he shot Puluc in response.

Later that day, Appellant voluntarily went to a police station to give a statement to investigating officers. At the time he did so, Appellant was not in custody, he was permitted to come and go as he pleased, and he had unlimited access to a telephone. Appellant told officers, among other things, that Puluc and Ms. Yancey had struggled over the money, that Puluc shot Ms. Yancey in the course of the struggle, and that Puluc successfully wrested the money from Ms. Yancey. Appellant also said that he kept his S & W revolver on top of the refrigerator, and Puluc must have taken it, Appellant surmised, when he was left alone in the kitchen to eat lunch.⁶ As Appellant was signing a written statement at the police station, a detective noticed “very small dots” on his right hand, which were consistent with blood spatter from a contact gunshot. Officers collected swabs of blood from Appellant's right hand and shin, and they also collected his clothing and gave him something else to wear. The officers then asked Appellant to draw a diagram of the crime scene, but Appellant at that point asked to speak to an attorney, refused to draw a diagram, and left the police station when his attorney arrived.

Forensic analyses of the crime scene and physical evidence indicated that Ms. Yancey and Puluc could not have been killed in the way that Appellant had described. For instance, although Ms. Yancey suffered two contact gunshot wounds and a third wound from a gunshot fired at close range—all supposedly as a result of Puluc shooting Ms. Yancey as they struggled for the money—her blood spatter was found not on Puluc, but instead on Appellant. The money that Puluc supposedly had taken from Ms. Yancey was found not by his body, but near hers, about ten feet away from Puluc. Puluc was right-handed, but the revolver was found not to his right, but to his left. And although Appellant had claimed to the 911 operator that he administered CPR to Ms. Yancey, CPR had not, in fact, been performed.

In addition to this evidence, the record shows that after Appellant was arrested for the murders of Ms. Yancey and Puluc, he was released on bond and confined to his home, the confinement to be monitored with an ankle monitor. Appellant, however, removed the monitor and fled to Belize. He later was apprehended in Belize and returned to the United States for trial. Although Appellant does not dispute that the evidence is sufficient to sustain his convictions, we have reviewed the entire record, and we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Appellant was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Poole v. State, 291 Ga. 848, 850(1), 734 S.E.2d 1 (2012).

2. On appeal, Appellant claims that the trial court improperly permitted witnesses for the prosecution on four occasions to give testimony that touched upon his exercise of his right to remain silent. On the first occasion, the prosecuting attorney asked an officer who interviewed Appellant at the police station what happened after Appellant made his written statement, and the officer responded that “[we] requested ... that he draw us a diagram [of the crime scene].” On the second occasion, the prosecuting attorney asked the same officer what happened after photographs were taken of the crime scene, and the officer responded that “Mr. Yancey was asked to help us by mapping out or drawing a diagram for—.” On the third occasion, the prosecuting attorney asked the same officer what happened after Appellant was asked to draw a diagram, and the officer responded that “[h]e chose to leave.” And on the fourth occasion, the prosecuting attorney asked another officer whether Appellant was asked to draw a diagram only after he was given new clothing, and the officer responded in the affirmative.

Appellant failed to object at trial, however, on the first, third, and fourth occasions of the testimony about which he now complains. And although Appellant did object on the second occasion, he objected on a different ground than the one he urges on appeal. On the second occasion, after the officer said that “Mr. Yancey was asked to help us by mapping out or drawing a diagram for—,” Appellant moved for a mistrial on the ground that the testimony amounted to a comment upon his request to consult a lawyer, noting at a sidebar conference that Appellant refused to draw the diagram at the “moment he asked for an attorney.” The trial court denied the motion, finding that the testimony “[had] not gone into Mr. Yancey's request for an attorney.” On appeal, Appellant no longer contends that the testimony given on the second occasion amounted to an impermissible comment on his request for a lawyer, but he instead argues that it amounted to a comment on his silence with respect to drawing a diagram. In these circumstances, Appellant has failed to preserve the claim of error that he asserts on appeal as to the testimony on the first, third, and fourth occasions, and it is doubtful that he has preserved it as to the testimony on the second occasion. See Sears v. State, 292 Ga. 64, 67(3), 734 S.E.2d 345 (2012); Wallace v. State, 272 Ga. 501, 503(2), 530 S.E.2d 721 (2000); Klinect v. State, 269...