Palmer v. State

310 Ga. 668

853 S.E.2d 650

PALMER

v.The STATE.

S20A1118

Supreme Court of Georgia.

Decided: January 11, 2021

Amanda Jones Walker, Eastern Judicial Circuit Office of the Public Defender, 222 West Oglethorpe Avenue, 5th Floor, Savannah, Georgia 31401, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Elizabeth Rosenwasser, Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, Matthew Breedon, A.D.A., Office of the District Attorney Ogeechee Judicial Circuit, 901 N. Pine St., Springfield, Georgia 31329, Margaret Ellen Heap, District Attorney, Christine Sieger Barker, A.D.A., Office of the District Attorney Eastern Judicial Circuit, P.O. Box 2309, Savannah, Georgia 31402, Attorneys for the Appellee.

Boggs, Justice.

After a 2017 jury trial, Kevin Palmer was acquitted of malice murder but found guilty of felony murder and other offenses in connection with the shooting death of William Whitsett. His amended motion for new trial was denied, and he appeals, asserting as error the denial of his motion to suppress, the exclusion of alleged alibi testimony, and the ineffective assistance of his trial counsel. Concluding that there is no reversible error, we affirm.¹

1. Construed in the light most favorable to the jury's verdicts, the evidence showed that in December 2014, Palmer lived at an apartment complex in Savannah with his girlfriend, Genevieve Meeks. He worked in her family's seafood restaurant, but he also sold marijuana and acted as a middleman for shipments of the drug to local dealers. On or about December 13, 2014, Whitsett, a friend of Palmer's from North Carolina, arrived in town and stayed at Palmer's apartment. Palmer initially told Meeks that Whitsett was just stopping by on his way to Florida, but he later told her that Whitsett would be staying for a while and was ordering marijuana to be delivered to the apartment for Palmer to sell.

Whitsett purchased a Smart TV and a PlayStation and set them up in the apartment.

On the morning of Thursday, December 18, Meeks saw Whitsett for the last time. Palmer dropped Meeks off at the restaurant and left in her car. He brought the car back to the restaurant around 6:30 that evening, then left to play soccer with friends at the "Y." After leaving work at 8:00 p.m., Meeks picked Palmer up after the soccer game and they drove home, but Whitsett was not there. When Whitsett had still not appeared by Friday morning, Meeks expressed concern. Palmer took their dogs outside and returned to tell Meeks that he had found notes from Whitsett saying that he had left for Florida and that Palmer could keep all his belongings, including his car. When Meeks asked how they could use the car without the keys, Palmer within "a second or two" located the keys in a wheel well of the car. Palmer also took a shotgun out of the car and brought it into the apartment.

Later that day, Palmer told Meeks he had a phone call from Whitsett, but refused to let her speak with him. He also took a "long break" from work, during which he did not answer his phone. He later told Meeks that he did not answer the phone because he took their dogs on a long walk, they got muddy, and he had to bathe them. On Friday and Saturday, packaged marijuana arrived at the apartment, and Palmer immediately began selling it, telling Meeks that Whitsett had agreed to let him keep some of the marijuana in return for letting Whitsett stay at their apartment and for receiving the marijuana at their address.

On Tuesday, December 23, a telephone lineman discovered Whitsett's body in an overgrown wooded area at the foot of a railway embankment and below an elevated highway bridge, but accessible by a trail leading from behind Palmer's apartment building to the railroad tracks, a distance of approximately a hundred yards. Whitsett was lying in a ditch and partially concealed by a stone wall, part of a tire, and other debris. A shirt and sweatshirt were pulled up over his head, and he was shoeless but wearing socks. The police initially believed that Whitsett might have been hit by a train, and the case was referred to the medical examiner as a victim of "suspected trauma." Upon receiving the body, however, the medical examiner immediately saw that Whitsett had multiple gunshot wounds. An autopsy, performed the following Friday on account of the Christmas holiday, revealed that Whitsett had four gunshot wounds to his face and head and a defensive gunshot wound to his arm, all from .22 caliber bullets, four of which were recovered from the body. Marks on Whitsett's chin, neck, and torso indicated that his body had been dragged along the ground by his feet. Due to lack of knowledge of the environmental conditions at the scene, the medical examiner was unable to establish a time of death.

Police officers canvassed the nearby area for possible witnesses, without success. The next day, after identifying Whitsett from his fingerprints, they located his car parked next to the building in which Palmer's apartment was located, and learned from Palmer's neighbor, Bradley Bates, that Whitsett had been staying with Palmer and Meeks. Palmer was interviewed by the police on Wednesday, December 24, and told them that Whitsett came to town on December 22 and that he had brought all the marijuana in the apartment with him. Palmer said that the shotgun was his and that he had purchased it when he worked in a particular pawn shop in Alma, Georgia.² He also told the police about the handwritten notes in which Whitsett said Palmer could have all Whitsett's personal items, but a forensic document examiner testified at trial that the notes were actually written by Palmer.

Palmer told the police investigators multiple conflicting stories regarding Whitsett's death: that the murder was probably gang related, that Whitsett was a bad person and a racist, that he "was always getting into trouble" because "he didn't care what he said," and that he had left "to go do some type of deal or something." While alone but observed in the interview room, Palmer called his mother and told her that he was the last person to see the victim alive. He also called Meeks and told her that the only thing he was worried about was his .22-caliber pistol, even though the police had not yet made public the fact that Whitsett was shot with a .22-caliber firearm. After speaking with Meeks, Palmer also changed his story about Whitsett's disappearance, telling the police that he "walked" Whitsett to a local grocery store to purchase cocaine from some unknown individuals. Palmer also told the police that he had a .22 pistol in a kitchen cabinet.

Later the same day, December 24, the police executed a search warrant for Palmer's apartment and Meeks’ vehicle. They found a .22-caliber pistol, the box for the pistol, and a jar of marijuana in a cabinet in Palmer's kitchen. A forensics expert testified that three of the four bullets recovered from Whitsett's body were fired from that pistol; the fourth was too damaged for a comparison to be made. Whitsett's shotgun, PlayStation, and television, as well as his Louis Vuitton suitcase containing marijuana, were found in Palmer's apartment, along with marijuana oil and $900 in cash. A search of Meeks’ Camaro revealed a small handgun belonging to Whitsett in a bag in the car's trunk, as well as a note reading "It's all Kevin's."

After Palmer's arrest, he was in the jail's common area when a television news story came on about Whitsett's murder. He told another inmate that he and his girlfriend were going to "beat the case" because "they didn't have no evidence on him," that the murder was a result of robbing a man for "a large amount of marijuana," and that they were going to sell the marijuana out of the seafood restaurant where his girlfriend worked.

Palmer has not challenged the sufficiency of the evidence to support his convictions. However, under this Court's practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence supporting his convictions.³ We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Palmer was guilty of the crimes for which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In Palmer's first enumeration of error, he contends that the trial court erred in denying his motion to suppress the evidence seized as a result of the search warrant obtained for his apartment, asserting that the warrant was issued without probable cause, contained an intentionally or recklessly false statement in violation of Franks v. Delaware , 438 U. S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and was also an impermissible general warrant. We disagree.

(a) Palmer contends that the search warrant was issued without probable cause under Illinois v. Gates , 462 U. S. 213, 239 (III), 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In reviewing whether probable cause existed to support issuance of a search warrant, we bear in mind that

the magistrate's task is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life.

(Citations and punctuation omitted). Young v. State , 309 Ga. 529, 540 (4), 847 S.E.2d 347 (2020).

The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a

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