Wilson v. State

587 S.E.2d 9, 277 Ga. 114, 2003 Fulton County D. Rep. 2826, 2003 Ga. LEXIS 777
Supreme Court of Georgia·Decided September 22, 2003·No. S03A0688·Published·Cited by 13 cases

Opinions

Hines, Justice.

Brenda Wilson appeals her conviction for malice murder in connection with the fatal shooting of Charles Russell. She challenges the admission into evidence of certain testimony and a videotaped interview, the failure to grant her a new trial due to an alleged Brady violation, and the sufficiency of the evidence of her guilt. Finding the challenges to be without merit, we affirm.1

During the early morning hours of October 14, 1981, Charles Russell received a telephone call from his niece, Suzanne Johnson; he left his house on Old Cove Road ostensibly to take some vitamins or medicine to her. Russell got out of his car to open the gate across his driveway and was shot twice - once by a shotgun blast to the head that came from an elevated embankment next to the driveway, and once by a blast from a high velocity small caliber weapon through his back. Russell’s wife heard a vehicle leaving the area after she heard shots fired. Russell managed to walk back to his house where he told his wife that “they” shot him, but he did not identify his assailants. Russell died shortly after his arrival at the emergency room of a local hospital.

Investigations at the crime scene turned up two different kinds of fresh cigarette butts in the wooded area next to the driveway; one set of butts was from brown cigarettes. Bushes and brush in the area had been trampled down. This and the number of cigarette butts found led police to believe that the assailant or assailants laid in wait for some time to attack Russell as he opened the gate that they had closed. Russell’s car was found down an embankment covered in kudzu, approximately one-half mile from his home. Fingerprints were lifted from the steering wheel, but the prints did not match any of the initial suspects of the crime.

In August of 1983, a Georgia Bureau of Investigation (GBI) [115]*115informant related that Wilson and Wilson’s brother, Chris Johnson, were involved in Russell’s murder, and the information was passed to the Walker County Sheriff’s Office. However, no arrest was made, and the case remained unsolved.

In 1998, Mickey Barrett, a convict under a 90-year prison sentence, came forward with information about Russell’s murder. Barrett gave a videotaped statement to police, stating that while at a motel in 1981, Wilson told him that she was involved in Russell’s murder.

Suzanne Johnson gave a statement to police that Wilson told her that she and another person had closed Russell’s gate and shot him twice when he attempted to open the gate across his driveway. Suzanne also related that Wilson had explained how she and the other assailant had parked their car near the murder scene so they could make a quick getaway, and that the two had taken Russell’s car after the shooting and had done something to the accelerator to make the car “take off” and end up down the embankment.

Following the interview with Suzanne Johnson, police interviewed Wilson. She told them that she did not think that she had killed Russell, and if she did, she must have been drinking at the time. Police also conducted interviews with several other individuals who reported that Wilson had admitted to them her involvement in the murder and related details of the killing. Wilson was arrested for the murder.

At trial, the State presented evidence that in her late teenage years, Suzanne Johnson had lived with Russell and his wife, who were Johnson’s aunt and uncle; during Suzanne’s stay, Russell forced her to have a sexual relationship with him; Russell was a physically-imposing and controlling man who always carried a firearm; Russell was described as “mean” and “jealously possessive” of Suzanne; Russell seemed obsessed with Suzanne, and even after Suzanne moved out of his house, Russell often followed her and attempted to prevent her from having other relationships; at the time of the murder in 1981, Suzanne and Wilson were close friends; Wilson and her brother, Chris Johnson, made a deal with Suzanne; they would get rid of Russell in exchange for Suzanne marrying Chris Johnson “for life.” Suzanne and Chris Johnson were married following Russell’s death and remained married at the time of trial in 1999.

Davies, a former friend of Wilson’s, who used to live with her, testified that Wilson told him that she had murdered a man and “had to wait for him and shot him.” Spyies, a co-worker of Wilson’s, testified that Wilson appeared at her door early one morning in October 1981 in a “[panic], uneasy, nervous” state, saying “We did it. We killed him. We killed him.”; Wilson related details of the murder including that they shot the victim again because “the m f [116]*116wouldn’t die”; Wilson told Spyies that she needed her for an alibi, i.e., to say that Wilson was at her house at the time of the murder; Spyies heard Wilson and Suzanne Johnson laughing about the murder at work.

The brown cigarette butts found at the crime scene were identified as the brand smoked by Wilson.

1. Wilson contends that the trial court erred by allowing the jury to view the police videotaped interview of Mickey Barrett because Barrett refused to testify at trial, and thus, was unavailable for cross-examination in violation of Wilson’s right of confrontation. However, admission of the videotape fails to provide a basis for reversal of Wilson’s conviction.

Barrett did not remain silent when he was called to the stand. He answered several questions from the State, and he completely denied having made any statement to police regarding the murder of Charles Russell.2 Thus, contrary to Wilson’s assertion, this was not a situation in which the State failed to elicit any in-court testimony with which the videotape could be inconsistent. Compare Barksdale v. State, 265 Ga. 9, 10 (2) (453 SE2d 2) (1995); see also Thornton v. State, 264 Ga. 563, 564 (2) (449 SE2d 98) (1994). In fact, quite the contrary. Barrett’s blanket denial that he had spoken with police was wholly inconsistent with his entire videotaped statement, and therefore, the videotaped statement was admissible. Gordon v. State, 273 Ga. 373, 377 (2) (c) (541 SE2d 376) (2001); Gibbons v. State, 248.Ga. 858 (286 SE2d 717) (1982). The claim that Wilson’s right of confrontation was violated likewise fails. “Even if a hearsay declarant is not subject to cross-examination at trial, the admission of the declarant’s out-of-court statement does not violate the defendant’s right of confrontation if the declarant’s out-of-court statement meets the requirements of a firmly rooted exception to the hearsay rule. . . Barks-[117]*117dale v. State, supra at 13 (2) (b).

2. Wilson also contends that the trial court erred in allowing into evidence hearsay testimony from Mickey Barrett’s nephew, Herschel Barrett.3 However, the challenge to the admission of the evidence as hearsay is waived because Wilson failed to make a contemporaneous objection to the evidence at trial. Brinson v. State, 276 Ga. 671 (581 SE2d 548) (2003); Roseberry v. State, 274 Ga. 301, 303-304 (553 SE2d 589) (2001).4

Any challenge to the evidence as violative of the right of confrontation fails. See Aaron v. State, 172 Ga. App. 700 (324 SE2d 564) (1984).

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Wilson v. State, 587 S.E.2d 9, 277 Ga. 114, 2003 Fulton County D. Rep. 2826, 2003 Ga. LEXIS 777 (Ga. 2003).

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