Upshaw v. State
300 Ga. 442
Ga.2017Background
- On Dec. 7, 1996 Joanne Walton was shot and killed; the case was reopened in 2007 and Upshaw was indicted in 2011 for malice murder, felony murder, aggravated assault, and firearm offenses.
- Trial occurred in Aug. 2012; jury convicted Upshaw of malice murder, felony murder, aggravated assault, and unlawful possession of a firearm during the commission of a felony; one firearm-count later nolle prossed.
- Evidence at trial: Upshaw and Walton left a car after an argument; Upshaw shot Walton with a .38 revolver, hid the gun at his mother’s house, it was later sold and traced to Upshaw; co-defendant Franks witnessed the shooting and threatened by Upshaw.
- Post-trial sentencing: life for malice murder, concurrent life for felony murder (error), plus consecutive five years for the firearm-during-felony conviction; trial court merged aggravated assault into felony murder (procedurally incorrect but harmless).
- Upshaw appealed, arguing three trial errors: limitation on cross-examining Franks about underlying facts of a prior conviction; refusal to grant a mistrial after witness Mark Price refused cross-examination; and excepting the lead detective from sequestration.
Issues
| Issue | Plaintiff's Argument (Upshaw) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether convictions were legally consistent and sentencing proper | Convictions stand; no insufficiency challenge though argued errors elsewhere | State: evidence sufficient; but cannot sentence for both malice and felony murder for one killing | Court: Evidence sufficient; vacated felony murder conviction/sentence as surplusage (only one killing) |
| Whether trial court erred by barring cross-examining Franks about facts underlying prior aggravated assault conviction | Upshaw: should have been allowed to impeach Franks by eliciting specific facts of prior arrest/conviction | State: only the conviction/parole status was relevant; specific facts irrelevant because witness did not attempt rehabilitation | Court: No error — specific facts of prior crime were irrelevant where Franks did not rehabilitate himself |
| Whether refusal to grant mistrial after Price refused cross-examination violated confrontation rights | Upshaw: Price’s refusal prevented effective cross-examination and warranted mistrial | State: curative measures (contempt, jury instruction, offer to strike testimony) cured any prejudice | Court: No mistrial required; court acted within discretion by instructing jury to disregard statements about a confession and offering to strike testimony; Upshaw declined full strike |
| Whether excusing lead detective from sequestration was improper | Upshaw: detective should have been sequestered like other witnesses | State: detective exception allowed for orderly presentation given case complexity and time gap | Court: No abuse of discretion — exception permissible to assist orderly presentation |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- Hendrix v. State, 298 Ga. 60 (2015) (vacating duplicate murder conviction as surplusage when only one killing occurred)
- Brown v. State, 276 Ga. 192 (2003) (specific facts of prior conviction inadmissible unless witness seeks to rehabilitate)
- Soto v. State, 285 Ga. 367 (2009) (curative relief and striking testimony when witness refuses to answer on cross-examination)
- Miller v. State, 289 Ga. 854 (2011) (trial court discretion between mistrial and curative instruction)
- Moore v. State, 297 Ga. 773 (2015) (permitting primary investigator to remain in courtroom to assist prosecution is within trial court discretion)
- Malcolm v. State, 263 Ga. 369 (1993) (merger principles for assault and murder convictions)
- White v. State, 297 Ga. 218 (2015) (distinguishing when aggravated assault does not merge with malice murder)