Welch v. State

309 Ga. 875

848 S.E.2d 846

WELCH

v.The STATE.

S20A1010

Supreme Court of Georgia.

Decided: September 28, 2020

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

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capital Square SW, Atlanta, Georgia 30334, Tasha Monique Mosley, District Attorney, Karen Smith Barbour, A.D.A., Clayton County District Attorney's Office, 9151 Tara Boulevard, Jonesboro, Georgia 30236, Attorneys for the Appellee.

Melton, Chief Justice.

Following a June 2017 jury trial, Todd Welch was convicted of murder and other crimes in connection with the shooting death of Christopher Brown and the aggravated assault of Darrell Agee.¹ On appeal, Welch contends that the trial court erred by improperly admitting hearsay evidence under the forfeiture-by-wrongdoing exception to the rule against hearsay and erred by failing to give his requested jury instruction on grave suspicion. For the reasons that follow, we conclude that the arguments raised by Welch are without merit. However, we also conclude that we must vacate Welch's sentences as to Counts 10 and 20 of his indictment in order to correct sentencing errors that harm him. Accordingly, we affirm in part and vacate in part.

1. Viewed in the light most favorable to the verdicts, the evidence presented at Welch's trial showed the following. On the night of August 21, 2014, roommates Brown, Agee, and John Mitchell were at their home in Clayton County. Mitchell was outside cleaning up the garage. Cashime McLemore arrived in a truck with Kirsten Forame and parked on the street in front of the house. Forame went into the house while McLemore waited for her outside in his truck.

About five minutes after McLemore dropped off Forame, a black Infiniti SUV pulled up. As Mitchell was closing the garage, he saw two men exit the SUV. Mitchell then went out the back door to feed his dogs. Meanwhile, Agee saw the two men walking up to the house, and he recognized one as Welch, whom he had met on previous occasions. Brown and Welch had both been involved with the same woman, Yakia Lewis, and Brown did not trust Welch, so he handed Agee his 9-millimeter handgun so that Agee could "watch his back."

After Mitchell finished feeding his dogs, he went back in the house. Brown was in the kitchen with Forame, Welch, and Welch's companion. Agee, who was in the living room, watched the conversation in the kitchen. At a moment when Agee was turned away, he heard someone call out his name. When he turned around, Welch was pointing a gun at him. Welch began shooting, and shots hit Agee multiple times. When Agee fell to the floor, Welch turned and fired shots into the kitchen where Agee had seen Brown sitting moments before.

From his bedroom, Mitchell heard Brown scream "No, no, no, no, no," followed by a series of gunshots. Mitchell jumped out his bedroom window, and, as he was getting up from the ground, he saw Welch and his companion come out the front door. As Mitchell ran towards his neighbor's home, he heard three or four more gunshots.

No one answered the door at the neighbor's house, and Mitchell turned around and saw Welch and his companion jump into the black SUV and leave the scene. Mitchell returned to his house and found Agee laying behind the couch clutching his stomach and screaming at Mitchell to "go find [Brown]." Mitchell found Brown in his room lying face down and clutching his chest. Brown had suffered gunshot wounds to his chest, abdomen, arm, thigh, and buttocks, and he later died from his injuries.

Forame called 911, and police arrived at the scene. Agee was rushed to the hospital, where he was placed in a medically induced coma for three weeks. Agee ultimately spent over three months in the hospital, undergoing 21 surgeries. His injuries left him with a permanent limp and diminished use of his left hand.

The shell casings at the crime scene and bullets recovered from both the crime scene and the victims's bodies were consistent with having been fired from a Glock .40 pistol, not a 9-millimeter handgun. Mitchell identified Welch in a photographic lineup and at trial as one of the men who was in his kitchen on the night of the crimes, and Agee identified Welch in a photographic lineup and at trial as the man who shot him and who shot in Brown's direction. Additionally, in a phone call to Shawnice Bailey that was recorded while Welch was in jail and awaiting trial, Welch admitted that he was at the home of the victims on the night of the crimes.

Although Welch does not challenge the sufficiency of the evidence in this case, consistent with our customary practice of reviewing the sufficiency of the evidence in murder cases,² we have reviewed the record independently and have concluded that the evidence presented at trial was sufficient to authorize a rational jury to find Welch guilty beyond a reasonable doubt 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. Welch contends that the trial court erred by allowing a police officer to testify, pursuant to the forfeiture-by-wrongdoing exception to the rule against hearsay, that Yakia Lewis told him that she traveled to Florida with Welch in a black Infiniti SUV after the crimes.³ See OCGA § 24-8-804 (b) (5) ("The following [type of statement] shall not be excluded by the hearsay rule if the declarant is unavailable as a witness: .... A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."). We disagree.

The record shows that on April 6, 2017 – the day before Lewis received a subpoena to appear at Welch's upcoming April 17, 2017 trial – Welch called Lewis from jail and said to her, "Don't say s**t. In a couple weeks, don't say s**t." Lewis responded, "I'm gonna be there with you." Lewis did not appear for Welch's trial on April 17, 2017, which was continued until June 2017.

On April 20, 2017, Welch phoned Lewis again. During this call, Welch told Lewis that the trial had been rescheduled for June. He said "everything [was] good," but "they watchin’ everything." He instructed Lewis, "All you need to do is just stay down for a couple more months." Lewis replied, "You already know I'm gonna do that." Investigator John Gosart attempted to serve Lewis a subpoena on the Friday before the June 26 trial date, but, at that time, Lewis's house appeared to be abandoned. Investigator Gosart testified that Lewis's Twitter account activity showed posts indicating that she may have been in Miami or Chicago.

It is well established that

[o]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. Davis v. Washington , 547 U. S. 813, 833 (IV), 126 S.Ct. 2266, 165 LE2d [L.Ed.2d] 224 (2006) (excluding forfeiture-by-wrongdoing from Sixth Amendment proscriptions). If, as supported by a preponderance of the evidence, a trial court finds that a party has acted with the purpose of making a witness unavailable to testify against him, a trial court does not abuse its discretion in allowing the unavailable witness's statements to be admissible at trial against the party who caused the witness's absence. See Hickman v. State , 299 Ga. 267 (4), 787 S.E.2d 700 (2016).

(Footnote and punctuation omitted.) Hendrix v. State , 303 Ga. 525, 528 (2), 813 S.E.2d 339 (2018).

There are three factors that the State must show by a preponderance of the evidence in order

[t]o admit a statement against a defendant under the rule [of forfeiture-by-wrongdoing:] ... (1) that the defendant engaged or acquiesced in wrongdoing, (2) that the wrongdoing was intended to procure the declarant's unavailability, and (3) that the wrongdoing did procure the unavailability.

Id. (relying on federal case law and quoting United States v. Scott , 284 F.3d 758, 762 (7th Cir. 2002) ).

Here, the trial court did not abuse its discretion by admitting the hearsay testimony because the State met its burden to allow for the admission of Lewis's statement into evidence. Specifically, the evidence showed contact between Welch and Lewis in which he instructed her not to "say s**t" and in which he showed his intent to procure her absence from his rescheduled June trial by telling her to "stay down for a couple more months." Lewis indicated her assent by confirming that she was "gonna do that" ("stay down") before she left her home and did not appear at Welch's trial. It is clear that Lewis became unavailable as a witness after her conversations with Welch despite the State having subpoenaed her to appear at Welch's April 17 trial and the State's efforts to serve her again just prior to the rescheduled June trial. See OCGA § 24-8-804 (a) (5) ("[T]he term ‘unavailable as a witness’ includes situations in which the declarant: .... Is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance."); Bolling v. State , 300 Ga. 694, 699 (2) (a), 797 S.E.2d 872 (2017) ("[A] witness is unavailable under [ OCGA § 24-8-804 (a) (5) where that State has] show[n] that reasonable, good-faith efforts to locate the witness were made.") (citation and punctuation omitted). Under these circumstances, we conclude that the trial court did not abuse its discretion by admitting Lewis's statement to police under OCGA § 24-8-804 (b) (5). See Hendrix , supra, 303 Ga. at 529 (2), 813 S.E.2d 339.⁴

Moreover, even if the trial court erred in admitting Lewis's statement that she traveled to Florida in a black Infiniti SUV with Welch, it is highly probable that the admission of this isolated statement did not contribute to the verdict in light of the overwhelming evidence of...