Gregory Wilkey v. State

• Court: Court of Appeals of Georgia
• Decided: June 20, 2023
• Docket: A23A0431
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., DOYLE, P. J., and LAND, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 20, 2023

In the Court of Appeals of Georgia A23A0431. WILKEY v. THE STATE.

DOYLE, Presiding Judge.

Following a jury trial, Gregory Eugene Wilkey was convicted of family

violence aggravated assault, family violence aggravated battery, false imprisonment,

and family violence battery.1 He appeals from the denial of his motion for new trial,

arguing that there was insufficient evidence to support his conviction for false

imprisonment, that his family violence aggravated assault conviction should have

merged with his family violence aggravated battery conviction for sentencing

purposes, that the trial court erred by not allowing the admission of his entire

1 See OCGA §§ 16-5-21 (a) (2), (j) (2013); 16-5-24 (a), (h) (2013); 16-5-41 (a); 16-5-23.1 (a), (f) (2013). statement to police under the rule of completeness, and that he received ineffective

assistance of counsel. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict,2 the record shows that Wilkey

met the victim in October 2012 and that the couple was married in February 2013. On

the morning of April 4, 2013, Wilkey asked his wife for money to buy a spare tire so

he could drive to work. She told Wilkey that she did not have any cash, and during

their conversation she noticed that Wilkey was acting very agitated. Thus, she locked

herself in the bathroom and called 911. Officers from the Cartersville Police

Department responded to the house and told the parties to get some rest; when they

left, the victim was lying down in the bedroom and Wilkey was on the couch in the

living room.

Immediately after the officers left, Wilkey went into the bedroom, told his wife

the police had left, grabbed her phone, and hit her in the face with his fist. The victim

rolled over and felt Wilkey choking her. She managed to get up and run toward the

door, but Wilkey hit her again in the face, knocking her back onto the bed. He then

tied her hands with a string and hit her again. The victim begged Wilkey to stop,

telling him that she could not breathe and that she needed her inhaler, which was in

2 See Smith v. State, 289 Ga. App. 236, 237 (656 SE2d 574) (2008).

2 her car. Wilkey untied his wife’s hands, held her arm as he led her to the living room

and sat her down on the couch, but said she could not leave because he knew she

would “make a scene” as soon as she went outside.

Eventually the victim convinced Wilkey to let her go to her car. He held her

arm until she got into the passenger seat, then pulled down the sun visor, opened the

mirror, and told her to clean up her face. As Wilkey walked around to the driver’s

side, the victim jumped out of the car and ran into a building, where employees called

911.

The same officers who had responded to the victim’s earlier call also responded

to the second call. The victim told them Wilkey had attacked her. She had a broken

nose, bruising on her jaw, neck, chest, arms, and wrists, and needed stitches near her

eye.

Officers put out a “Be On The Lookout” for Wilkey and his vehicle, and

deputies with the county police department located his vehicle at a nearby home.

When an officer from the city police department arrived at the home, he walked in the

house with the deputies. Wilkey was inside the residence talking on the phone, and

after an officer told him to hang up, Wilkey said to the person on the phone, “I’m

3 fixing to go to jail.” Police then asked Wilkey what happened after they left his home

that morning, and he denied any knowledge of his wife’s injuries.

Wilkey was charged with family violence aggravated assault, family violence

aggravated battery, false imprisonment, and family violence battery. The jury found

Wilkey guilty on all counts, and the trial court imposed a recidivist sentence of 30

years with 20 to serve in confinement. Wilkey filed a motion for new trial, which the

trial court denied. He then filed this appeal.

1. Wilkey argues, first, that there was insufficient evidence to support his

conviction for false imprisonment. He acknowledges the victim testified that Wilkey

tied her hands, but contends that this evidence was insufficient to support a

conviction because there was no physical evidence, such as marks or injuries on her

wrists, and because her testimony at trial differed from the account she gave at the

hospital immediately after the incident.

When we consider the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and inquire only whether any rational trier of fact might find beyond a reasonable doubt that the defendant is guilty of the crimes of which he was convicted. Under this review, we must put aside any questions about conflicting

4 evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.3

“Accordingly, the jury’s verdict will be upheld as long as there is some competent

evidence, even though contradicted, to support each fact necessary to make out the

State’s case.”4

Under OCGA § 16-5-41 (a), false imprisonment occurs when a person, “in

violation of the personal liberty of another, . . . arrests, confines, or detains such

person without legal authority.” “Whether [a] detention amounted to false

imprisonment [is] for the jury to decide[,]” and even a brief detention can be

sufficient.5

In this case, there was clearly sufficient evidence to support a conviction for

false imprisonment. The victim testified that Wilkey tied her hands and kept her in

the bedroom, and that he subsequently prevented her from leaving the living room.

In light of this testimony, the jury was authorized to find Wilkey guilty of false

3 (Citations and punctuation omitted.) Jones v. State, 354 Ga. App. 568, 571 (1) (841 SE2d 112) (2020). 4 (Citation and punctuation omitted.) Westbrooks v. State, 309 Ga. App. 398, 399-400 (1) (710 SE2d 594) (2011). 5 Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998).

5 imprisonment beyond a reasonable doubt.6 Additionally, to the extent the victim’s

testimony at trial may have differed from how she previously described the incident,

any “conflicts between the victim’s testimony at trial and the victim’s out-of-court

statements were for the jury to resolve.”7

2. Wilkey argues that the trial court erred in failing to merge his convictions

for family violence aggravated assault and family violence aggravated battery. We

discern no error.

“Whether offenses merge is a legal question, which [the appellate court]

review[s] de novo.”8 To determine whether multiple convictions merge for purposes

of sentencing, we must apply the “required evidence” test and determine “whether

6 See Pierce v. State, 301 Ga. App. 167, 169 (1) (c) (687 SE2d 185) (2009) (sufficient evidence of false imprisonment where the defendant grabbed the victim by her hair and dragged her from room to room and victim testified that she wanted to get away but was unable to escape from the defendant); Rehberger, 235 Ga. App. at 827-828 (1) (sufficient evidence of false imprisonment where the defendant briefly held the victim against her will). 7 (Citation and punctuation omitted.)Westbrooks, 309 Ga. App. at 400-401 (1). 8 (Citation and punctuation omitted.) Regent v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016).

6 each provision requires proof of a fact which the other does not.”9 Further, our law

is clear that “when one crime is completed before the other begins, there is no

merger.”10

Applying these principles, the Supreme Court of Georgia has held that “[i]n

order for [a defendant’s] aggravated assault and aggravated battery counts to be

treated as distinct criminal acts, there must be a ‘deliberate interval’ between the

completion of one offense and the start of the other.”11

Here, Wilkey was charged with family violence aggravated battery for making

“an assault upon the [victim] with [his] hands and fists . . . , objects which when used

offensively against a person are likely to result in serious bodily injury, by repeatedly

striking [the victim] about the face with the hands of said accused, resulting in

bruising, a laceration and a broken facial bone[.]” He was charged with family

violence aggravated battery for intentionally causing “bodily harm to [the victim] by

9 (Citations and punctuation omitted.) Smith v. State, 354 Ga. App. 882, 888 (3) (842 SE2d 305) (2020). 10 (Citations and punctation omitted.) Id. 11 Price v. State, 313 Ga. 578, 581 (872 SE2d 275) (2022).

7 seriously disfiguring said person’s face, a member of said person’s body, by

repeatedly striking said person about her face resulting in a laceration and a broken

facial bone[.]”

At trial, the State presented evidence that Wilkey struck the victim’s face or

head on more than one distinct occasion during the attack. Specifically, the victim

testified that Wilkey struck her first while she was lying in bed and again after she

escaped from his grasp and ran toward the door. Thus, “the evidence shows a pause

sufficient to constitute a deliberate interval,” and there is no merger.12

3. Wilkey contends that the trial court erred under the rule of completeness by

excluding his answers to police questioning — in which he stated that he left the

house right after the officers did and that he did not know anything about the victim’s

injuries — while admitting the statement he made over the phone — in which he said

that he would be going to jail.

12 Price, 313 Ga. at 582. See Santoro v. State, 361 Ga. App. 546, 550-551 (3) (864 SE2d 719) (2021) (no merger where defendant choked victim, the two got out of bed, a struggle ensued, and defendant then physically attacked her); Crider v. State, 356 Ga. App. 36, 49-50 (3) (846 SE2d 205) (2020) (no merger where defendant pointed a gun at the victim, the two talked, the defendant followed the victim around, and then shot the victim in the stomach).

8 The rule of completeness provides, generally, that where part of a conversation

is admitted into evidence, “it is the right of the accused to bring out other portions of

the same conversation[.]”13 The appellate court reviews the trial court’s ruling on this

issue for abuse of discretion.14

The trial court issued its ruling on this issue during a bench conference at the

start of the trial, when the State made an oral motion in limine. As context for its

motion, the State explained that Wilkey was on his phone when officers found him

at a relative’s house, and they overheard Wilkey say, “I’m fixing to go to jail,” before

he hung up the call. When officers subsequently questioned Wilkey, he said that he

left his house right after the officers left that morning and that he did not know

anything about his wife’s injuries.

In its motion in limine, the State argued that Wilkey should not be permitted

to introduce his response to the officers’ questioning as evidence at trial because his

statement was hearsay. Wilkey contended that the statement was admissible as a

13 (Citation and punctuation omitted.) Allaben v. State, 299 Ga. 253, 256 (2) (787 SE2d 711) (2016). 14 Id.

9 present sense impression or excited utterance, but the trial court rejected those

arguments and ruled that the statement could not be presented as evidence.

Wilkey then asked the court to exclude the State from introducing the statement

he said on the phone — “I’m fixing to go to jail” — but the State contended that this

statement was admissible as a party admission. The State further argued that the

statements were made in different conversations, one over the phone to an

unidentified individual and one in-person to officers, so the rule of completeness

would not apply. The trial court agreed with the State, and an officer testified before

the jury that he overheard Wilkey tell the person on the phone, “I’m fixing to go to

jail.”

The trial court did not abuse its discretion in ruling on this issue. The rule of

completeness does not apply to separate and distinct statements,15 and the record

reveals that Wilkey said “I’m fixing to go to jail” in one conversation and said that

15 See Danley v. State, 342 Ga. App. 61, 64 (3) (a) (802 SE2d 850) (2017) (although two 911 calls made by victim’s husband were admitted into evidence, rule of completeness did not require admission of return call from sheriff’s department), overruled in part on other grounds by McClure v. State, 306 Ga. 856, 864 (1) & n. 17 (834 SE2d 96) (2019).

10 he left the victim and did not know of her injuries in another conversation. Thus, the

admission of the former statement did not require the admission of the latter.16

4. Finally, Wilkey argues that he received ineffective assistance of counsel. He

raises two claims on this issue, but neither is persuasive.

To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel’s performance was deficient and that the deficient performance resulted in prejudice to the defendant. To satisfy the deficiency prong, a defendant must demonstrate that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. This requires a defendant to overcome the strong presumption that trial counsel’s performance was adequate. To carry the burden of overcoming this presumption, a defendant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel’s deficient performance, the result of the trial would have been different. If an appellant fails to meet his or her burden of proving either

16 See Danley, 342 Ga. App. at 64 (3) (a).

11 prong of the Strickland17 test, the reviewing court does not have to examine the other prong.18

(a).

Wilkey’s first claim of ineffective assistance relates to jury selection. The

record reveals that after Wilkey’s trial started, the trial court learned that the

individual who was serving as Juror Number 2 had not been summoned to serve as

a juror for that term of court; the individual who appeared for jury duty was the adult

son of the man who had been summoned. The trial court explained the situation to the

parties outside the presence of the jury and asked if they wanted to replace the son

with an alternate juror. Both the prosecutor and defense counsel responded that they

saw no problem with the son serving on the jury, and defense counsel further stated

that she “would be concerned about dismissing [him and then needing to] activat[e]

the alternate should something else [happen.]”

At the hearing on Wilkey’s motion for new trial, trial counsel explained that

she did not object to the son’s service as a juror because although he was not on the

17 Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). 18 (Citations and punctuation omitted.) Anthony v. State, 311 Ga. 293, 294-295 (1) (857 SE2d 682) (2021).

12 master list of individuals who had been summoned for jury duty, he had gone through

the jury selection process, appeared to be qualified to serve, and “seemed like a

normal juror that we would want[.]” Counsel further testified that she was “sure” she

had discussed the son’s service with Wilkey because “he was heavily involved” in the

jury selection process and was present in court when the situation was discussed. In

rejecting Wilkey’s claim of ineffective assistance on this ground, the trial court

concluded that counsel’s decision not to remove the son from the jury was “both

strategic and patently reasonable,” and that Wilkey failed to show he was prejudiced

by counsel’s decision.

On appeal, Wilkey contends that counsel’s lack of objection constituted

ineffective assistance because it meant that there was no meaningful discussion of

whether the son was qualified to serve on the jury.19 But trial counsel’s decision not

to object was clearly a matter of strategy, as she testified at the motion for new trial

hearing that she believed the son was a good juror for the defense, and there is no

19 Because the defense did not object to the son’s service on the jury before the jury returned its verdict, Wilkey is now deemed to have waived any objection to that issue. See Allen v. State, 299 Ga. App. 201, 202-203 (1) (a) (683 SE2d 343) (2009) (where an individual who was not summoned was impaneled on the jury, defendant waived any objection to that juror’s service by failing to raise the objection before the jury returned its verdict).

13 indication that her strategic decision not to object was unreasonable.20 Moreover,

Wilkey has not proffered any evidence suggesting that the son actually was not

qualified to serve as a juror; he has not established, for example, that the son lived

outside the county or had been convicted of a felony. To the contrary, the record

reveals that the son answered questions on those issues during the jury selection

process and that based on his answers, he appeared to be qualified to serve as a juror.

Wilkey has, therefore, failed to demonstrate that trial counsel’s failure to object to the

son serving on the jury resulted in actual harm.21

(b)

Wilkey’s second ineffective assistance claim relates to an alleged conflict of

interest due to trial counsel representing both Wilkey, in this case, and the victim’s

son, Brandon Hulsey, in an unrelated case.

20 See Allen, 299 Ga. App. at 204 (1) (b) (“Georgia law is clear that the decision on which jurors to accept and which jurors to strike is one of trial strategy.”). 21 See Bright v. State, 292 Ga. 273, 276 (2) (b) (736 SE2d 380) (2013) (absent a showing that the jurors who served on the jury were unqualified to do so, defendant failed to establish that counsel’s failure to ask more questions during voir dire resulted in actual harm).

14 Wilkey raised this ground in his motion for new trial, and at the hearing on that

motion, trial counsel testified that she began representing Wilkey in April 2013 and

was assigned to represent Hulsey in an unrelated criminal case in August 2013.

Counsel was on maternity leave from mid-August until mid-November, and when she

returned from maternity leave she focused on Wilkey’s case because it was going to

trial in January. She did not recall ever discussing Wilkey’s case with Hulsey, and she

did not view Hulsey as an important witness for Wilkey’s case because Wilkey was

married to Hulsey’s mother for only a few months before the incident and Hulsey was

incarcerated for some of that time. The trial court determined that counsel’s

representation of Husley was not a conflict of interest because Hulsey was not a

witness in Wilkey’s case and there was no evidence that counsel had competing

interests in representing the two defendants.

To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Where the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.22

22 (Citation and punctuation omitted.) Jones v. State, 239 Ga. App. 832, 836-837 (2) (b) (521 SE2d 614) (1999).

15 On appeal, Wilkey asserts that trial counsel’s performance in his case was

adversely affected by her conflict of interest because it caused her not to interview

Hulsey, the victim’s son, to see if the victim had previously made statements

regarding the facts of this case that differed from the account she gave at trial. Wilkey

has not established, however, that counsel would have interviewed Hulsey for the

instant case if she was not representing him in his own unrelated case, and nothing

in the record suggests that counsel’s decisions with respect to the instant case were

at all related to her representation of Hulsey in his unrelated case. Instead, the record

suggests that counsel did not interview Hulsey because, based on her conversations

with other witnesses, she did not believe Hulsey would offer any useful information.

Because Wilkey has failed to establish that trial counsel’s alleged conflict of interest

caused her to act differently than she otherwise would have, this ineffective-

assistance claim fails.23

For the foregoing reasons, we affirm both Wilkey’s conviction and the trial

court’s denial of his motion for new trial.

Judgment affirmed. Barnes, P. J., and Land, J., concur.

23 See id. at 838 (2) (b).