Wаyne Welbon appeals his conviction for the murder of Taurean Reeves.
1. The evidence at trial showed as follows: Welbon and Reeves sold drugs out of a green and white house at 2328 St. James Drive in Fulton County. Based on a tip, police on February 22, 2013 found Reeves’s body in an area of vegetation behind the house. Reeves had multiple gunshot wounds that appeared to be rifle wounds. When police searched the house, they found bullet holes in a couch and wall and blood on the couch, walls, and floor. A GBI forensic biologist testified that testing of a piece of fabric from the couch indicated the presence of blood and DNA matching that of Reeves. A firearms examiner testified that all but four of the several dozen bullets and bullet fragmеnts collected from the house and Reeves’s body were fired from one gun, consistent with a .223 caliber rifle, which the firearms examiner testified could be an AK-style rifle. Police found on Welbon’s cell phone a picture of him holding two rifles.
Jerry Gay, a convicted felоn who lived across the street from the green and white house and ran errands for Reeves and Welbon, testified at trial that he was awoken by the sound of gunshots one morning in February 2013. Gay testified that he later encountered
Welbon did not testify, but a detective testified, over objection, that Welbon made certain statements to police.
Welbon does not challenge the sufficiency of the evidence. Nevertheless, we have independently reviewed the record and conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Welbon was guilty of the crimes for which he was convicted under the standard of Jackson v. Virginia,
2. Welbon argues on appeal that the trial court erred in allowing the State to present testimony regarding the statements he made to police, because those statements were made involuntarily and thus used in violation of the Due Process Clause of the F ourteenth Amendment. Welbon filed a motion to suppress statements he made to police, and the trial court held a mid-trial Jackson-Denno hearing about the voluntariness of the statements. At that hearing, the same detective testified that Welbon was interviewed for three to three- and-a-half hours at a police station after he was arrested. Welbon wore a leg shackle that was attached to the floor, the detective testified. According to the detective, officers made no threats or promises, and Welbon never said he wanted to stop the interview. At some point, the detective told Welbon, “You and I have to have a conversation” or something to that effect, which the detective acknowledged could have been interpreted by a suspect to mean he had no choice but to participate in the interview if the suspect took the statement “extremely literally.” Welbon was advised of his Miranda rights during the interview, the detective testified. During the hearing, the trial court also viewed some portion of a videotape of the interviеw.
After hearing evidence and argument on the suppression issue, the trial court said
Following a hearing, the trial court issued a written order denying Welbon’s motion, concluding as to the voluntariness of Welbon’s statements that:
Welbon has not carried his burden in his final enumeration of error, as this Court ruled at his Jackson-Denno hearing that his statements were voluntarily made. In a Jackson-Denno hearing the defendant must prove by a totality of the circumstances that his statements were involuntarily made. At the Jackson-Denno hearing in the instant case, this Court held that Welbon had not carried his burden, and that a totality of the circumstances demonstrated that Welbon made his statements voluntarily
In determining whether a defendant’s statement was voluntary as a matter of constitutional due process, a trial court must consider the totality of the circumstances. See State v. Chulpayev,
Here, the trial court’s statements show that it proceеded under the premise that Welbon bore the burden of proof on the issue of voluntariness. But this burden rests with the State. See Lego,
“[W]here there is no evidence which would authorize the grant of the motion to suppress, a remand is unneсessary.” Bryant,
We might have deferred to the factual findings that resulted from that exercise had the trial court properly undertaken it. See State v. Colvard,
Judgment vacated and case remanded.
Notes
The crime occurred in February 2013. In an indictment returned on June 18, 2013, a Fulton County grand jury charged Welbon with malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. At a June 2014 trial, a jury found Welbon guilty on all fоur charges. The trial court sentenced Welbon to life in prison for malice murder, plus five years to run consecutively for the firearms offense, and purported to “merge” the other counts into the malice murder conviction. On July 10, 2014, Welbon filed a motion for new trial. Welbon amended his motion for new trial via appellate counsel on June 2, 2015. The trial court denied the motion for new trial in a written order filed on August 13, 2015. Welbon filed a timely notice of appeal, and the case was docketed to this Court for the term beginning in December 2016 and submitted for a decision on the briefs.
Welbon claims on appeal that his statements to police should have been suppressed, and we address that claim of error in Division 2. That claim of error, however, does not affect our assessment of the sufficiency of the evidence. When we consider the legal sufficiency of the evidence under Jackson v. Virginia,
The trial transcript indicates that the trial court viewed the first five minutes or so of the videotape, and the prosecutor indicated that he would put a copy of the recording into evidence. But it appеars that the tape was never made a part of the record. The prosecution declined to play the videotape for the jury. Given the absence of the video, the timing of the detective’s statement that he and Welbon needed to have a conversation and the reading of Welbon’s Miranda rights is not entirely clear from the record. The detective appeared to agree that he advised Welbon of his Miranda rights before beginning the interview “in depth,” and defense counsel indicated in her cross-examination of thе detective that the comment about needing to speak with Welbon was made five minutes and two seconds into the recording of the interview. Counsel for both sides appear to agree that the detective made that comment shortly before informing Welbon оf his Miranda rights.
The State also argues that the detective’s subsequent reading of Welbon’s Miranda rights made Welbon aware that he could end the conversation at any point. But even when a suspect is read his or her Miranda rights, the determination of whether the suspect made a statement vоluntarily depends on the totality of the circumstances. See, e.g., United States v. Bernal-Benitez,
Vacating and remanding in this manner necessarily requires a conclusion that we cannot determine at this stage that admission of Welbon’s statements, if error, was harmless beyond a reasonable doubt, the harmless error standard we apply to constitutional errors. See Flournoy v. State,
Given our remand, we express no opinion on the merits of Welbon’s claim of error related to jury selection. If, on remand, the trial court again denies Welbon’s motion for new trial, Welbon is free to again raise the jury selection issue on appeal.