McKELVEY v. THE STATE
S20A1548
Supreme Court of Georgia
March 1, 2021
LAGRUA, Justice
Appellant Sacorey McKelvey was convicted of murder and other crimes in connection with the shooting death of Corey Owens.1 On appeal, McKelvey contends that the evidence presented at trial was insufficient to support his convictions; that the trial court erred by admitting into evidence his 2009 convictions for terroristic threats; that the trial court erred in striking two potential jurors for
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following: Owens had a biological brother, Gregory Owens, and a step-brother, Matthew Mungin. Elexis Cooper is the mother of Gregory‘s children. In March 2009, McKelvey confronted Elexis and her cousin after an altercation between their families, pointing a gun in Elexis‘s face and threatening to kill her. Following this incident, McKelvey was arrested and incarcerated. On November 17, 2009, McKelvey pleaded guilty to three counts of terroristic threats and was sentenced to three concurrent probated terms of five years.
On April 22, 2014, McKelvey ran into Owens and told him he wanted to meet with Owens, Gregory, and Mungin. That evening, Owens, Gregory, and Mungin met McKelvey in a field adjacent to a group of apartment homes on Adair Avenue in Columbus. People who frequent this area often refer to it as “Adair.” Soon after
Elexis‘s mother, Debra, witnessed the incident in the field from her apartment. Debra, who has known McKelvey since he was a child, testified that she saw him tussling with Owens, Gregory, and Mungin and heard someone say “he got a gun,” referring to McKelvey. Debra said the brothers “wrestled [McKelvey] down and
Later the same night, Debra was standing on her back porch when she saw McKelvey approach with a gun. McKelvey was angry, and Debra tried to calm him down, encouraging him to “just leave it alone, ... just let it go.” McKelvey told her he “had to kill them;” she understood “them” to mean Owens, Gregory, and Mungin.2 McKelvey then mentioned Debra‘s daughter, Elexis, and the fact that Gregory lived with her. Debra got upset, explaining that Elexis had nothing to do with what happened earlier that day. Debra called Elexis and made McKelvey speak with her. McKelvey told Elexis he would not go to her house “with the mess,” but he was going to kill Owens, Gregory, and Mungin.3 When Debra saw McKelvey again the next day, he confirmed he would not go to
On April 24, Mungin spoke to Owens on the phone between 1:00 and 2:00 p.m. Owens indicated that he was going to Adair to pick up his children and would call Mungin when he returned to his house. At 1:28 p.m., McKelvey picked up his paycheck from the construction company where he worked. Debra McNeil, the owner of the company, gave McKelvey his paycheck and observed that he was dressed in all black. McKelvey was accompanied by Kazarita Piatt, his sister‘s boyfriend. From McNeil‘s position in the front office, she had a view of the parking area, and she noted McKelvey was traveling in a black car with tinted windows. McNeil‘s husband, David, was in his truck in the parking lot at the same time and also noticed that McKelvey was traveling in a compact, black car with tinted windows. After getting his paycheck, McKelvey and Piatt left in the black car.
Another witness, Betty McMiller, was in a nearby apartment in Adair at the time of the shooting. McMiller testified that she heard multiple gunshots and then saw a man with dreadlocks, dressed in black, running away from the scene around the back of the church.
Dominic Cobb was also in the area at the time. Cobb, his wife, and some friends were driving through the Adair neighborhood
Police officers and emergency personnel responded to the scene of the shooting, where they found a white SUV in the middle of the roadway near the intersection of Adair Avenue and Wynnton Road. Owens was still seated in the driver‘s seat of the SUV and was non-
At trial, an officer with the Columbus Police Department testified that she checked the partial tag number provided by 911 dispatch and received a hit for Georgia license plate number PRW6200; associated with a 2003 black Pontiac Grand Am registered to Okevia McKelvey, McKelvey‘s sister.
Police were immediately dispatched to Okevia‘s address, where they located the Grand Am. The hood of the car and brake rotors were hot, as if the car had just been running. Okevia gave consent to a search of her apartment and said the Grand Am had not been moved since that morning. Officers did not find anyone matching the description of the shooter inside the residence. Inside the Grand
Billy Moss, who dated McKelvey‘s mother, Michelle, spoke to McKelvey on the afternoon of April 24 when McKelvey was picking up his paycheck. Moss testified that later the same afternoon, between 2:00 and 4:00 p.m., Michelle received a phone call, became very upset, and fainted. Moss later learned about the shooting in Adair and that McKelvey had left Columbus to avoid the police. Shortly thereafter, Moss saw McKelvey with Michelle in Phenix City, Alabama.
On April 25, warrants were taken out for McKelvey‘s arrest, and officers began searching for him. In early June, based upon information Moss provided, law enforcement located McKelvey at a Columbus residence. McKelvey fit the description the eyewitnesses had providеd, including wearing his hair in long dreadlocks. When officers first apprehended McKelvey, he gave them a false name, but he soon admitted his true identity.
On June 7, 2014, while incarcerated at the Muscogee County Jail, McKelvey sent a written message to the deputies at the jail, stating, “i scary for life i kill his cuz and he in here i scary for life [sic].” When a deputy spoke with McKelvey about the message to better understand what it meant, McKelvey explained that there was a person in the cell with him that was a cousin of the person McKelvey killed, and he wanted to be relocated from that cell. The next day, deputies received another written message from McKelvey, stating, “I scary for my cause i kill his homie boy [sic].”
2. McKelvey contends that the evidence presented at trial was insufficient to support his convictions based upon the following: (a) there was not enough time for McKelvey to travel from his employer‘s office at 1:28 p.m. and arrive at the crime scene by 1:50
When evaluating challenges to the sufficiency of the evidence to support criminal convictions as a matter of constitutional due process, “we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019) (citing Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979) and Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018)). Here, the evidence presented at trial included the testimоny of multiple eyewitnesses who positively identified McKelvey as the shooter. Other witnesses testified about McKelvey‘s motive for shooting Owens, which included blaming Owens and his brothers for his 2009 incarceration, as well as the physical altercation that occurred on April 22, resulting in the loss of McKelvey‘s gun. Witnesses also testified that after this altercation, McKelvey made multiple threats to kill Owens and his brothers. McKelvey admitted that he was angry and wanted to fight with Owens, Gregory, and Mungin after what happened on April 22, and McKelvey also admitted to the deputies at the jail that he killed someone.
Additionally, evidence was presented at trial to show that the drive from McKelvey‘s workplace to the crime scene could be completed in about 15 minutes – within the roughly 20-minute period between the time McKelvey left his employer‘s office and the time Owens was shot in Adair.6 McKelvey‘s arguments to the
This evidence of McKelvey‘s guilt was not only sufficient for a reasonable jury to find him guilty beyond a reasonable doubt; it was overwhelming. See Brown v. State, 300 Ga. 446, 447-448 (1) (796 SE2d 283) (2017) (evidence, including testimony of multiple eyewitnesses who identified defendant as the shooter, not only sufficient to support convictions, but overwhelming). As such, this enumeration of error fails.
3. McKelvey contends that the trial court abused its discretion by admitting into evidence his 2009 convictions for terroristic threats because they were not admissible as intrinsic evidence or to prove prior difficulties with the Owens brothers or motive under
Evidence is admissible as intrinsic evidence, rather than extrinsic evidence subject to Rule 404 (b), when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. Even when evidence is intrinsic, however, it must also satisfy Rule 403. It is within the trial court‘s sound discretion to determine whether to admit such evidence, so we review a trial court‘s ruling admitting evidence as intrinsic for an abuse of that discretion.
Evidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted as intrinsic evidence if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. Moreover, intrinsic evidence remains admissible even if it incidentally places the defendant‘s character at issue.
Harris v. State, 310 Ga. 372 (2) (b) (850 SE2d 77, 83) (2020) (citation and punctuation omitted). See Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350) (2017).
Evidence relating to McKelvey‘s 2009 convictions pertained to the chain of events explaining the “context, motive, and set-up of the
McKelvey also argues that the 2009 incident was not intrinsic to the charged crimes because it was too remote in time and did not specifically involve the brothers; howеver, we have previously recognized:
It is true that whether evidence is linked in time and circumstances with the charged crime is pertinent to the intrinsic-evidence analysis, but there is no bright-line rule regarding how close in time evidence must be to the charged offenses, or requiring evidence to pertain directly to the victims of the charged offenses, for that evidence to be admitted properly as intrinsic evidence.
Harris, 850 SE2d at 86 (citations and punctuation omitted). We thus conclude that the 2009 convictions were sufficiently linked to Owens‘s shooting and that the trial court did not abuse its discretion in admitting this intrinsic evidence in this case. See Clark v. State, 306 Ga. 367, 373-374 (4) (829 SE2d 306) (2019) (three-year-old incident between defendant and victim‘s wife was intrinsic to charged crimes).
4. McKelvey contends that the trial court erred by granting the State‘s motion to strike Jurors 31 and 48 for cause over his objection. See
“Whether to strike a juror for cause is a matter committed to the sound discretion of the trial court, and we will not find error in
During voir dire, when the prosecutor asked if any of the panel members knew McKelvey, Juror 31 stated that he was friends with McKelvey in middle school. When asked whether he would “be able to set that relationship aside and decide this case based on the evidence that‘s presented,” Juror 31 answered, “No.”
Similarly, Juror 48 stated that she had gone to middle school with McKelvey. When asked if she would be able to set that
Following voir dire, the State moved to strike both jurors for cause, and McKelvey objected. After hearing argument from both sides, the trial court noted that Juror 31 “could not decide the case fairly” and that Juror 48 “could not set aside [her] prior relationship” with McKelvey, and the court struck both jurors for cause.
The trial court did not abuse its discretion by striking Juror 31 based on his statement that he would not be able to set aside his relationship with McKelvey and decide the case based on the evidence presented. Likewise, the trial court did not abuse its discretion by striking Juror 48 based on her statement indicating that she would not be able to set aside her relationship with McKelvey. See Lanier, 310 Ga. at 520 (no abuse of discretion where trial court struck for cause juror who expressed bias towards
5. McKelvey contends that his trial counsel rendered constitutionally ineffective assistance by failing to call two alibi witnesses: his sister, Okevia, and her boyfriend, Piatt. According to McKelvey, these witnesses could have provided information about his whereabouts at the time of the shooting, and he asked his trial counsel to call both as witnesses.
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
At the motion for new trial hearing, McKelvey‘s trial counsel testified that she could not remember exactly why she elected not to cаll Okevia and Piatt as witnesses, but she did “recall there was a significant reason why.” Trial counsel also testified that it was in McKelvey‘s best interest not to call Piatt, as his testimony could have been detrimental. She further stated that she was aware of Okevia and Piatt prior to trial, but neither had any information or knowledge about what happened on the day of the murder to assist in McKelvey‘s case. While McKelvey testified that he believed Okevia and Piatt would have given “helpful” testimony, he provided no further information or details about what infоrmation they would have provided. Moreover, neither Okevia nor Piatt testified at McKelvey‘s motion for new trial hearing.8 In the trial court‘s order
“A decision as to which defense witnesses to call is a matter of counsel‘s trial strategy and tactics and will not support a claim of ineffective assistance of counsel unless it is so unreasonable that no competent attorney would have made the dеcision under the circumstances.”
Smith v. State, 308 Ga. 81, 92 (2020) (citation and punctuation omitted). We conclude that trial counsel‘s decision to forgo seeking Okevia‘s or Piatt‘s testimony was a strategic decision because their testimony would not have been helpful – and may even have been harmful – to McKelvey‘s defense, and because the trial court found no value to their testimony as alibi witnesses based on a lack of evidence of what they would have said. Therefore, McKelvey has failed to overcome the “strong presumption” that his trial counsel‘s
McKelvey has also failed to demonstrate any prejudice as he has not shown that either witness would have given him “a solid and complete alibi for the time of the murder.” Moss v. State, 298 Ga. 613, 619 (5) (d) (783 SE2d 652) (2016). As such, this enumeration of error also fails.
Judgment affirmed. All the Justices concur.