Welch v. State, 309 Ga. 875

Background

On August 21, 2014, Welch and an accomplice entered a Clayton County home; Brown was shot multiple times and died, Agee was shot and survived with permanent injuries, and Mitchell escaped.
Mitchell and Agee identified Welch in a photo lineup and at trial; shell casings/bullets matched a Glock .40; Welch made a recorded jail call admitting he was at the victims’ home.
Yakia Lewis became unavailable for trial after telephone contacts from Welch in which he told her not to “say s**t” and to “stay down”; police later located Lewis and Welch in Florida and recovered a black Infiniti SUV.
At the June 2017 trial Welch was convicted of malice murder and numerous related counts; trial court sentenced him to life without parole plus consecutive and concurrent terms on other counts.
On appeal Welch challenged (1) admission of Lewis’s out-of-court statement under the forfeiture-by-wrongdoing exception and (2) the refusal to give a requested “grave suspicion” jury instruction; the Court also reviewed and corrected certain sentencing merger errors sua sponte.
The Georgia Supreme Court affirmed the convictions but vacated the sentences on Counts 10 and 20 to correct merger errors (merging Count 10 into Count 16 and Count 20 into Count 19).

Issues

Issue	Plaintiff's Argument (Welch)	Defendant's Argument (State)	Held
Admissibility under forfeiture-by-wrongdoing (Lewis’s statement that she traveled with Welch)	Trial court erred in admitting hearsay; Lewis’s statement was inadmissible	Welch’s jail calls showed intent to procure Lewis’s unavailability and her subsequent absence procured unavailability; State made reasonable efforts to subpoena her	Admission upheld: State met preponderance standard on (1) wrongdoing/acquiescence, (2) intent to procure unavailability, and (3) procurement of unavailability; even if isolated statement erroneous, any error was harmless given overwhelming evidence
Confrontation Clause challenge to admission of Lewis’s statement	Admission violated Confrontation Clause	Forfeiture-by-wrongdoing forfeits confrontation right where defendant caused witness’s absence	Rejected: forfeiture doctrine applies, so no Confrontation Clause violation
Request for "grave suspicion" jury instruction	Court should have instructed because Agee lacked direct view of Brown being shot and no witness directly saw Welch shoot Brown	Evidence showed Agee saw Welch shoot him and then shoot toward Brown; party liability covers accomplice-as-shooter scenarios; jury received full reasonable doubt/presumption instructions	Rejected: trial court did not err in refusing the charge because evidence raised more than a bare suspicion of guilt
Sentencing merger errors (Counts 10 v. 16; Counts 19 v. 20)	(Not raised by Welch on appeal) but merger required because counts arose from same continuous act	State did not cross-appeal on some merger issues; nevertheless merger doctrine requires correction when it benefits defendant	Court exercised discretion to correct errors: vacated sentences for Counts 10 and 20 and directed proper merger (Count 10 into Count 16; Count 20 into Count 19)

Key Cases Cited

Davis v. Washington, 547 U.S. 813 (forfeiture-by-wrongdoing forfeits Confrontation Clause rights)
Hendrix v. State, 303 Ga. 525 (outlining preponderance standard and elements for forfeiture-by-wrongdoing under Georgia law)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Hodo v. State, 272 Ga. 272 (grave suspicion instruction standard)
Regent v. State, 299 Ga. 172 (merger principles where multiple injuries arise from one continuous act)
State v. Marlowe, 277 Ga. 383 (limitation on multiple firearm sentencing under OCGA § 16-11-106)
Bradley v. State, 292 Ga. 607 (merger of multiple firearm possession sentences as to a single victim)
Malcolm v. State, 263 Ga. 369 (on merger and operation-of-law vacatur issues)