S17A1994. McKOY v. THE STATE.
Supreme Court of Georgia
March 15, 2018
303 Ga. 327
NAHMIAS, Justice.
FINAL COPY
Appellant Raymond McKoy was convicted of malice murder in connection with the shooting death of his estranged wife‘s girlfriend, Lauren Hudson. Appellant argues that the trial court erred in ruling that journal entries he had written were admissible and erred in striking his direct testimony after he refused to submit to cross-examination. We affirm.1
1. (a) Viewed in the light most favorable to the verdict, the evidence at trial showed the following. Appellant was married to Tameka McKoy, and they had three children together. During their marriage, Tameka, who is bisexual, introduced women into their relationship, including Hudson. Hudson lived in Chicago but came down for several visits during 2012; at that time, she
On the night of June 21, 2013, Tameka, Hudson, and the three children went to a party at the house of Shawnta Nolan, a friend of both women. They returned to Tameka‘s apartment around 3:00 a.m. Hudson took the children inside and then went out to smoke a cigarette. Tameka came in after them, carrying their bags. She saw her youngest son, who was two years old, sitting in his carrier in the front room and then went to the back of the apartment to check on the two older children in their rooms. She returned to the front of the apartment, and as she began to lock the door, she heard Appellant say, “Don‘t lock the door, she‘s still out there.”
Appellant was carrying his .40-caliber Glock pistol, which he usually kept with him, in a side holster. He opened the door to the apartment, pulled the gun,
Appellant fled to his parents’ house. He banged on the door, and when his mother and younger brother let him in, he was frantic. He repeatedly yelled, “she pulled a gun on me,” “she had a gun,” and, “I shot her.” His father took Appellant‘s gun and locked it in the father‘s truck, where investigators later recovered it and matched it to shell casings found at the crime scene. Appellant‘s father began to experience chest pains and called 911. When the Douglasville police heard the call, they sent officers to join the EMTs because
(b) At trial, the defense argued that Appellant shot Hudson in self-defense because she pointed a gun at him. The argument was supported with testimony from Appellant‘s mother and brother that Appellant had said Hudson “pulled a gun on him,” and testimony from two of Appellant‘s long-time friends who said that he had a law-abiding and peaceful character. The defense also called its own forensic firearms expert who testified that the shot to Hudson‘s arm may have spun her around and the shot to the back of her head could have come after that. The expert also testified that the position of the shot to Hudson‘s leg indicated that she was moving toward Appellant.
Appellant was the final witness called by the defense. He testified on direct examination, and the trial was then adjourned for the day. The next morning, with Appellant present but before the jury was brought into the courtroom, the prosecutor announced that he intended to use some entries from
After this ruling, Appellant refused to return to the witness stand to be cross-examined. His counsel asked for a five-minute recess, which the trial court denied. The court said that if Appellant did not retake the stand, it would tell the jury to “totally disregard all of his testimony.” Appellant and his counsel had a discussion off the record, and then the following exchange occurred:
APPELLANT‘S COUNSEL: Your Honor, my client is stating that he does not want to retake the stand.
PROSECUTOR: The State‘s position is that in the presence of the jury, we will move to have his entire testimony stricken from the record.
THE COURT: And disregarded. That will be the —
APPELLANT‘S COUNSEL: I‘m sorry. I didn‘t mean to — I just — I was asking him if he understood what the Court would say to the jury. Do you understand that? APPELLANT: Yes.
APPELLANT‘S COUNSEL: You still don‘t want to take the stand?
APPELLANT: No.
THE COURT: Okay. We‘ll bring the jury in. I‘ll ask him to take the stand and he can tell me he‘s not going to take the stand. Then the State can make whatever motions it decides to make. Bring them in.
After the jury returned to the courtroom, Appellant refused to take the stand, and the court told the jury:
Ladies and gentlemen, when a witness takes the stand and testifies directly on their side of the case, in this case when he responded — this particular witness responded to the questions of his lawyer, he must then be subject to cross-examination for you to even consider anything that he said during his direct examination. When he refuses to take the stand, then I‘m going to direct you that I‘m striking all of his testimony and you are in no way to consider anything that he said during his direct testimony. He has presented no evidence through himself at this point, as though he never took the stand.
The defense then rested. The jury found Appellant guilty of malice murder.
(c) Appellant does not challenge the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with this Court‘s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdict, the evidence presented at trial
2. Appellant argues that the trial court erred in ruling that his journals were admissible. He contends that the journals were illegally seized, and the State has not disputed that point. As Appellant concedes, however, evidence that was seized illegally may still be admissible for impeachment. See Hogsed v. State, 287 Ga. 255, 256 (695 SE2d 269) (2010) (ruling that journals obtained outside the scope of a valid search warrant could be used “for the limited purpose of impeaching a defendant“). See also
In Luce v. United States, 469 U. S. 38 (105 SCt 460, 83 LE2d 443) (1984), the United States Supreme Court held that “to raise and preserve for review the claim of improper impeachment with a prior conviction [under
Any possible harm flowing from a district court‘s in limine ruling permitting impeachment by a prior conviction is wholly speculative.
The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant‘s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. . . . When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government‘s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. Because an accused‘s decision whether to testify “seldom turns on the resolution of one factor,” a reviewing court cannot assume that the adverse ruling motivated a defendant‘s decision not to testify. . . . Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. Were in limine rulings under Rule 609 (a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserveRule 609 (a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction.
Id. at 41-42 (citations omitted).
Our Court of Appeals followed Luce in Warbington v. State, 316 Ga. App. 614 (730 SE2d 90) (2012), a case dealing with a pretrial denial of a motion to exclude a conviction that the State planned to offer to impeach the defendant. See id. at 615-617. The court concluded that Luce‘s approach is appropriate in
Although the impeachment evidence at issue in this case is prior inconsistent statements rather than prior convictions, the rationale of Luce and Warbington is applicable and compelling.4 Even more than a single prior conviction, the admissibility of Appellant‘s journals is a “subtle evidentiary question[ ]” that requires a “factual context” to review accurately. Luce, 469 U. S. at 41. For example, although a few of Appellant‘s specific journal entries were discussed by the parties and the trial court, it is not clear if these were the only entries the State wanted to put into evidence, nor is it clear exactly which of Appellant‘s statements on direct examination the State sought to impeach with any of the entries. Moreover, the substance of Appellant‘s testimony as the
In addition, like the alleged errors in Luce and Warbington, the alleged error in ruling the journals admissible in limine must be evaluated for harm to Appellant‘s substantial rights. See
Because Appellant refused to testify on cross-examination and the disputed journals were never actually admitted into evidence, he has not preserved for appellate review his claim that the trial court committed reversible error by ruling in limine that the journals would be admissible.6
3. Appellant‘s remaining enumerations of error are variations on his claim that the trial court should not have struck his direct testimony when he refused to be cross-examined. In our view, the trial court‘s ruling was an
“. . . If an accused testifies, he or she shall be sworn as any other witness and, except as provided in Code Sections 24-6-608 and 24-6-609 [which are not pertinent in this case], may be examined and cross-examined as any other witness. . . .”
OCGA § 24-5-506 (b) . See also Scott v. State, 270 Ga. 93, 94 (507 SE2d 728) (1998) (“Although a criminal defendant cannot be compelled to testify against himself, once he elects to testify and takes the stand, he can be examined and cross-examined as any other witness.” (citations omitted)). Thus, when a defendant voluntarily takes the stand in his own behalf and testifies as to his guilt or innocence as to a particular offense, his waiver [of the right against self-incrimination] is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.
Hubbard v. State, 173 Ga. App. 127, 129 (325 SE2d 799) (1984) (citations and punctuation omitted).
Once Appellant withdrew his consent to be cross-examined as a witness, he could no longer be treated as a witness at all. “‘(W)hen a witness declines to answer on cross-examination certain pertinent questions relevant to a matter
Appellant also argues that striking his testimony deprived him of his rights under the United States and Georgia Constitutions to defend himself and to due process. That simply is not true. In fact, five other witnesses testified for the defense, and all of them supported his self-defense theory. And the procedure the trial court followed before striking Appellant‘s testimony gave him due process. The court clearly informed Appellant of the consequence if he refused to retake the stand, allowed Appellant to consult his counsel, and then asked Appellant to make an informed decision. Appellant elected not to retake the stand and thereby suffer the consequence of his testimony being excluded from the evidence he presented in his defense.
For these reasons, Appellant‘s claims of error related to the striking of his
Judgment affirmed. All the Justices concur.
Decided March 15, 2018.
Murder. Douglas Superior Court. Before Judge James.
Thomas M. West, for appellant.
Brian K. Fortner, District Attorney, Sean A. Garrett, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Meyerhoefer, Assistant Attorney General, for appellee.