Agee v. State

310 Ga. 64

849 S.E.2d 482

AGEE

v.The STATE.

S20A0726

Supreme Court of Georgia.

Decided: October 5, 2020

Bruce Steven Harvey, Law Offices of Bruce S. Harvey, 146 Nassau Street, N.W., Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Meghan Hobbs Hill, Christopher M. Carr, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Layla Hinton Zon, Randal Matthew McGinley, Alcovy Judicial Circuit District Attorney's Office, 1132 Usher Street Room 313, Covington, Georgia 30014, for Appellee.

Blackwell, Justice.

Linda Agee was tried by a Walton County jury and convicted of murder in connection with the fatal shooting of her husband, Randall Peters. Agee appeals, contending that the trial court erred when it admitted certain hearsay statements of a deceased witness and determined that Agee had forfeited her constitutional right to confront that witness.¹ For the reasons that follow, we reverse.

1. Viewed in the light most favorable to the verdict, the evidence presented at trial shows the following. Agee lived with Peters and their twin daughters in a Walton County neighborhood that was described by a witness as a "very good" and "very safe" area. Peters ran a produce delivery business with the help of Agee. Due to the couple's work hours, their daughters often would spend the night at the home of Peters's parents, Horace and Linda Peters.

Peters and Agee's marriage was troubled. For about three or four years, Agee had been having an affair with Jeff Sargent, who was himself married and had four daughters. Sargent eventually separated from his wife, and their divorce was finalized in the month of Peters's death. Peters knew about Agee's affair with Sargent, which often led to arguments.

On March 19, 1992, around 9:45 p.m., Agee dropped off her daughters at Horace and Linda's house. Less than an hour later, Linda heard the doorbell ring, and when she opened the door, Agee was there, asking them to check on Peters. Agee said that, when she came home to her house, she saw a "tall dark figure go across the hall," heard water running, and heard Peters yell, "It's hot, it's hot." Agee explained that she then got in her car and drove to Horace and Linda's house to seek help.

Upon hearing this, Horace immediately left to go to Agee's house, while Linda called Agee's neighbor and asked him to check on Peters. When the neighbor entered Agee's house, he found Peters lying in the hallway with a "hole in his chest." The police arrived shortly thereafter. An autopsy revealed that Peters died from two gunshot wounds.

An officer who entered the house observed that the den and one of the bedrooms were ransacked, but the other bedrooms were left untouched. The bathtub contained blood spatters and was full of water. A wad of cash lay on the ground in front of the residence. Peters's truck was gone. The police concluded that this was not a burglary because, aside from the truck, nothing of value was taken from the house. Moreover, it was not common for a burglary to occur at that time in the evening, when most people are at home and awake.

Peters's truck was found later that night, abandoned on the side of a road, with some personal belongings scattered on the ground beside the vehicle. There were no signs of forced entry into the truck.

The police interviewed Agee at 1:40 a.m. on March 20, several hours after Peters's death, and she gave the following account of the preceding evening. About 7:40 p.m., Agee went with her daughters for softball practice at a nearby ballpark known as Coker Field. After practice, Agee dropped off her daughters at her in-laws’ house. When she arrived back home around 10:00 p.m., she realized that she might have left her tennis shoes at the ball field. She saw Peters talking on the phone, so she patted him on the arm and told him that she had to go back to the ball field to get her shoes. Agee then drove to Coker Field and retrieved her tennis shoes from a bleacher in the dugout.

Agee told the police that, when she got home from Coker Field around 10:30 p.m., she heard a dog barking. She opened the door and stepped inside the house, with the tennis shoes in one hand and her pocket book in the other. At that point, she heard Peters say, in a "crying" tone of voice, "It's hot, it's hot." She looked up and saw a dark-colored "jacket standing there in the doorway of that bathroom I guess where [Peters's body] was found, there in the hall .... I could just see like the back part of the jacket." She also saw that the back door was wide open. Agee said that she was scared and, not knowing what to do, drove to her in-laws’ house to get help. Agee further told the police during that interview that she normally carried a set of keys to Peters's truck but had removed them from her key chain the day before, or several days earlier, because she did not know who was going to drive the truck to pick up produce. She explained that Horace sometimes drove the truck and that he borrowed keys either from Peters or Agee. She also said that Peters left his keys in the truck "99 percent of the time."

Agee's statements to the police were cast in doubt by other evidence. One witness testified that he was a youth minister in March 1992 and was responsible for closing down Coker Field. On March 19, he saw Agee leave practice with her daughters around 9:30 p.m., and he remained on the field until about 10:10 p.m., but he did not see any shoes left behind in the dugout (he had specifically checked that area) and did not see Agee return to the field. Furthermore, Horace testified that he did not have any conversations with Agee about leaving him the keys to the truck.

The police also interviewed Sargent on the morning after Peters's death. According to one of the interviewing officers, Sargent was "highly agitated" and "very, very nervous" throughout the interview. Among other things, Sargent admitted having an affair with Agee and said that he had called Agee up to three times on the morning of March 19. Sargent further admitted driving by Agee's house around 10:00 p.m. that night to try and see her. Not long afterwards, Sargent said, he met Agee briefly at a day care center known as Susan's Play World. Sargent explained that Agee drove up behind him and blinked her lights, and they stopped at the day care center and had a brief conversation.² The interviewing officers indicated to Sargent that they did not believe he was being entirely truthful. Toward the end of the interview, Sargent repeatedly told the officers that, if he told them the truth, "he'd get life or the electric chair."

The police interviewed Agee for a second time, and she admitted that, while on her way to her in-laws to seek help, she stopped briefly at Susan's Play World to talk to Sargent. Agee did not say what they discussed. Susan's Play World was less than a quarter mile from the Monroe Police Department.

A deputy testified that he transported Sargent to the Georgia Bureau of Investigation crime lab in Atlanta to take a polygraph test. Once they got there, however, Sargent's attorney contacted the deputy and said that he advised Sargent not to take the polygraph test. On the way back to Walton County, Sargent asked the deputy to turn around and go back to the crime lab so he could take the polygraph test and prove that he was not at the scene of the crime. Sargent again said that he was scared of getting "life or the death penalty."

One of Sargent's daughters testified that, when she learned that her father was a suspect in Peters's murder, she repeatedly asked him about it, and he gave three different answers. Once, Sargent told her that, if he told the truth or said something, he was "going to go to jail." Another time, Sargent "just put his hand up" to indicate he did not want her asking questions, and yet another time, he said, "I got a Domino's [Pizza] receipt, I can tell you I wasn't there."

Other evidence concerned Agee's conduct in the days surrounding Peters's death. Most notably, about a week before Peters was killed, Agee told her sister that she might not be able to go on a trip to North Carolina that was planned for the weekend of March 21-22 (to visit Agee's brother). Agee explained to her sister that Peters might not let her go—even though the sister had confirmed with Peters that Agee could go—and Agee also said that she was "just tired of all this s**t." After Peters was killed, according to several witnesses, Agee had an unusually calm demeanor, and one witness testified that Agee's grief at Peters's funeral appeared faked. Agee filed a claim on Peters's life insurance policy only a week after his death. She ultimately collected over $100,000 in life insurance proceeds and inherited some other valuable assets. Furthermore, when Horace learned that Agee was a suspect, he asked her: "[Peters] didn't have to be murdered. Why didn't you get a divorce?" Agee replied, "I asked him for one and he wouldn't give me one."

In addition, the State presented the testimony of Alan Cook, who had served as the district attorney for Walton County. Cook testified that, about a year after Peters was killed, the investigation into his killing had stalled. To jump-start the investigation, Cook's office petitioned the superior court to grant use and derivative-use immunity to Sargent so that he could be compelled to testify before the grand jury without regard to his constitutional privilege against self-incrimination. The day before the immunity hearing, however, Sargent and Agee were married. As a result, when Sargent received immunity and was subpoenaed to testify before the grand jury, he moved to quash the subpoena on the ground of marital privilege, claiming that he could not be compelled to testify against his spouse.³ After a hearing, the superior court granted the motion to quash, finding that the marital privilege applied, and the superior court's decision was affirmed by the Court of Appeals.⁴ Given Sargent's...