Welch v. State
298 Ga. 320
Ga.2016Background
- On Feb. 2, 2009, Kevin Welch shot Alex Howard after an argument at a known drug house; Howard later died after months in a hospital. Welch was arrested months later and told police he fired a warning shot and that the fatal shot was accidental.
- Welch was indicted on malice murder, two counts of felony murder, aggravated assault, possession of a firearm during a felony, and possession of a firearm by a convicted felon; a jury convicted him on all counts in Jan. 2012.
- The trial court vacated the felony-murder verdicts, sentenced Welch to life for malice murder and five consecutive years for possession of a firearm during a felony, and merged aggravated assault and possession-by-a-convicted-felon into malice murder (the latter merger was later challenged).
- Welch appealed, contesting (inter alia) denial of motions to strike two jurors for cause, the admission and use of certain witness statements, counsel’s alleged ineffective assistance, and sentencing/merger errors.
- The Supreme Court of Georgia affirmed convictions and rejected the majority of Welch’s claims but held the trial court erred by merging the possession-by-a-convicted-felon count into the malice murder count, vacating that portion of the judgment and remanding for resentencing.
Issues
| Issue | Plaintiff's Argument (Welch) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency of the evidence | Conviction not supported by evidence; shooting was accidental | Evidence showed Welch chased unarmed Howard, fired two shots, one fatal; jury credibility findings should stand | Affirmed — evidence sufficient under Jackson standard |
| Jurors 24 & 30 should be struck for cause | Their initial statements showed fixed bias and inability to be impartial | Upon further voir dire each said they could set aside bias and follow law/evidence; trial court discretion | Affirmed — no abuse of discretion in denying strikes (Wingster standard) |
| Use of prior statements by witness Jecedric Bell | Testimony improperly based on prior statements rather than memory | Bell read statements to refresh recollection and then testified from memory | Affirmed — reading to refresh memory permissible (Williams) |
| Admission of Detective Otts’s recounting of Robinson’s statement | Hearsay inadmissible; should be excluded | Statement admissible as prior inconsistent statement where declarant testified and did not recall meeting Otts | Affirmed — admissible as prior inconsistent statement (Rivers) |
| Ineffective assistance for not using peremptory on juror 30 and not challenging Welch’s statement | Counsel was deficient; likely changed outcome | Counsel strategically used strikes and declined to exclude statement to present defendant’s version without risking impeachment by prior felonies | Affirmed — no Strickland violation; choices were strategic |
| Merger of possession-by-convicted-felon into malice murder | Merger proper, eliminating separate sentence | State argued merger was applied by trial court | Reversed as to merger — possession-by-a-convicted-felon does not merge into malice murder; remand for resentencing (Hulett/Grissom test) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for appellate review of sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
- Wingster v. State, 295 Ga. 725 (trial court discretion on juror bias/for-cause strikes)
- Rivers v. State, 296 Ga. 396 (admissibility of prior inconsistent statements)
- Williams v. State, 257 Ga. 788 (permitting reading to refresh memory)
- Hulett v. State, 296 Ga. 49 (merger principles and that possession-by-convicted-felon does not merge into malice murder)
- Grissom v. State, 296 Ga. 406 (required-evidence test for merger)
- Nix v. State, 280 Ga. 141 (deference to counsel strategy)