Lead Opinion
Gerald Wayne Wright appeals from his convictions on two counts of malice murder, one count of possession of a firearm during the commission of a felony, and one count of concealing the death of another, all in connection with the death of his wife, Beverly Wright,
Construed to support the verdicts, the evidence showed that Gerald Wayne Wright (“Wright”) and Beverly Wright (“Beverly”) resided in Dade County and had been married for almost 25 years when they separated in March of 2000; Wright left the house. Soon thereafter Wright filed for divorce. There were attempts to reconcile, but no positive resolution. In mid-June 2000, Beverly saw Wright enter the Villager Motel with another woman. Parked outside the motel, Beverly, using her cellular telephone, called Wright on his cellular telephone and asked if the couple would like to exit the motel for a photograph. Wright left the room, still speaking on his telephone, and approached Beverly. She drove away and he drove after her, eventually forcing her off the road. He walked up to her car and demanded the camera on the front seat. She refused; he went to his car for a metal object and threatened to break her window. Beverly lowered the window and Wright reached in over her and took the camera. Beverly’s telephone call to 911 about the incident was recorded.
On June 29, 2000, in a final attempt to save the relationship, Wright and Beverly went to a marriage counselor. Shortly after entering the session, Beverly stated that she had no desire to reconcile, and left. That afternoon, Wright went to Beverly and told her that if she brought a man into “his” house, he would kill her. That evening, he asked his friend Richard Hudson to talk with Beverly and try to persuade her to take Wright back, a role in which Hudsоn had previously served. Late that night, Wright went to the marital home where Beverly continued to reside, and discussed the matter with Hudson and Beverly. Wright left to get some cigarettes. Upon returning, he discovered Hudson and Beverly lying on the bed in the master bedroom. Wright had a disposable camera and took a photograph of the two in what Wright described as an embrace in which
Late in the morning of June 30, 2000 after not being able to reach her mother by telephone, the couple’s daughter, Jennifer, drove to her mother’s home. She discovered Hudson’s body on the floor of the master bedroom. At 11:23 a.m., Jennifer called the police. There were smears of blood in the garage. Hudson had fatal gunshot wounds to his torso fired from a .38 caliber Taurus handgun owned by Beverly, which she kept in the headboard of her bed. By 1:46 p.m., investigators had learned of the marital problems, had determined that the .38 pistol was missing, and had issued bulletins to “be on the lookout” for Wright and Beverly, his car, and Beverly’s car; it was stated that Wright should be considered armed and dangerous.
Investigation revealed that Wright planned to go to Florida with a friend named Tyson. At approximately 4:40 p.m. on June 30, 2000, Wright’s car was discovered outside Tyson’s trailer in neighboring Walker County. Officers arrived, and Tyson informed them that Wright was ásleep inside, alone. The police entered the trailer and took Wright into custody in the bedroom. In his car was a .38 caliber revolver that was proved to have been used to kill Hudson. Taken from the bedrоom was a duffle bag in which there was a prescription bottle labeled with Hudson’s name, the key to Hudson’s car, a disposable camera, and clothes belonging to Wright which were wet, muddy, and bloody.
Early in the afternoon of June 30, 2000, it was discovered that a car had gone off Lookout Mountain and was in the trees 75 feet below a cliff edge. No one was inside the car. Recovery efforts began at approximately 8:00 p.m., but were unsuccessful until the next day. The car was determined to be Beverly’s and her body was found near it. She had suffered numerous blows to the head with a blunt object; her skull was “bashed in.” Some injuries to her torso occurred after her death; her injuries were not consistent with her being alive as the car went over the cliff. The location of the car was near the Wright’s marital home in the valley below. The home of Wright’s brother, where Wright had been staying since leaving the marital home, was 200 or 300 yards from the marital home.
Wright testified that: Beverly shot Hudson; Wright attempted to flee but Beverly caught him and forced him to the garage floor; she forced Wright at gunpoint to drive to the top of Lookout Mountain; she forcibly committed oral sodomy on him after pinning his hands in the windоw; they struggled over the pistol; Beverly was struck in the head several times but prevailed in the struggle; at gunpoint, she
1. The evidence was sufficient to enable a rational trier of fact to find Wright guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
2. The trial court allowed certain witnesses to testify as to statements made by Beverly before her death under the necessity exception to the hearsay exclusion rulе. OCGA § 24-3-1 (b). For such testimony to be admissible, the declarant must be unavailable and the statement must have particularized guarantees of trustworthiness. Abraha v. State,
It must be noted that Wright has not specified the statements he contends were both improperly admitted and harmful to him, other than those “concerning bad acts or misconduct” on Wright’s part, during the separation.
Wright contends that all of these witnesses were not shown to be confidantes of Beverly because the true nature of Beverly’s relationship with Hudson was not revealed to them; to most of thеse witnesses, Beverly stated that she and Hudson were merely friends who went to dinner on occasion, although Jennifer Wright testified that Beverly and Hudson had become close and had begun “dating” in the last two weeks before their deaths, and that she had seen Beverly and Hudson kissing in a romantic manner “less than a week” before their deaths. But, the true nature of the relationship between Beverly and Hudson was not established beyond question, and though there was some evidence that Beverly and Hudson had spent a night in the same house, other evidence showed that Hudson was sexually impotent, a fact Beverly had shared with at least some of the witnesses. Even assuming a romantic relationship, the only evidence showed that it existed for a short period of time immediately preceding the deaths of Hudson and Beverly, and any failure of Beverly’s to tell all the challenged witnesses that she and Hudson were romantically involved did not prevent the court, in the exercise of its discretion, from determining that these witnesses were those “in whom the deceased declarant placed great confidence and to whom she turned for help with her problems.” Id. Further, the statements Beverly made to these witnesses concerning Wright’s conduct were not in any material manner contradicted. Id. And the trustworthiness of the statements is enhanced by the fact that Beverly’s statements to the witnesses that concerned Wright’s behavior were made at times shortly after that behavior occurred. See McKissick v. State,
3. Wright also complains that evidence about his use of illegal drugs was wrongly admitted. “Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Cit.]” Johnson v. State,
4. When Wright was arrested, a duffle bag was on the floor of the bedroom in which the arrest took place. The officers askеd a resident of the trailer if Wright had any belongings there, and were told that the duffle bag was his; the officers removed the duffle bag and took it
First, the warrantless arrest of Wright was authorized under OCGA § 17-4-20 (a); the police had probable cause to believe that an act of family violence had been committed. Hudson’s body had been found in Wright’s house, and Beverly was missing. By the time of the arrest, police knew that: Wright and Beverly were estranged; Wright hаd stalked and threatened Beverly; Beverly had told Wright the day before the arrest that she wished to complete the divorce; the night before, Wright had stated his intention to visit Hudson; Wright planned to leave the state with Tyson; and Wright was in Tyson’s home, allegedly asleep. Tyson told the police that Wright was alone in the home, but they had no independent knowledge of this, and Beverly remained missing. There is no error in the trial court’s conclusion that Wright’s warrantless arrest was justified under OCGA § 17-4-20 (a), as the police had probable cause to believe that an act of family violence had occurred. Beverly’s body had not yet been found, and the possibility that she was still alive was an exigent circumstance authorizing the entry into Tyson’s home to arrest Wright. Compare State v. Peterson,
Under OCGA § 17-5-1 (a) (4),
When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence for the purpose of: . . . (4) Discovering or seizing any instruments, articles, or things which are being used or which may have been used in the commission of the crime for which the person has been arrested.
Wright was on the bed and the duffle bag was on the floor of the bedroom. It was in his “immediate presence” within the meaning of OCGA § 17-5-1 (4), and reasonably could be seized and searched for items used in the commission of the crime.
5. At the time of Wright’s arrest, Walker County deputies impounded his car. It was taken to the Rossville Police Station where an inventory of its contents was made, and the weapon used to kill Hudson was first discovered. The car was later searched pursuant to a warrant. Wright contends that the trial court should have suppressed the warrantless search and seizure of the car.
“The contents of an impounded vehicle are routinely inventoried to protect the property of the owner, protect the officers against claims for lost or stolen property, and protect the police from potential danger.” Goodman v. State,
“It is well established that a police seizure and inventory is not dependеnt for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” Mooney v. State,
“[A] crucial fact is that the officers had every reason to expect that the detention of [Wright] would last [for some time]. Given that fact, it was reasonable for the officers to take the car whenever it was most convenient for them to do so; and presumably it was most convenient immediately following the arrest, when they were at the [trailer] with the car keys.”
Mooney, supra at 379, citing with approval United States v. Gravitt, 484 F2d 375, 380 n. 5 (5th Cir. 1973), cert. den.
This case is not controlled by State v. Lejeune,
6. Finally, Wright contends that the trial court should have suppressed the photographs developed from the film in the disposable camera found in his duffle bag. The court specifically found that Wright lacked standing to raise this challenge as it was his brother’s camera. See Burgeson v. State,
Further, the photographs were admissible under the same rationale as that authorizing an inventory search; the police must be able to protect themselves “against claims for lost or stolen property.” Goodman, supra. Approximately a week after the killings, Hudson’s family asked for the return of his property. The camera was found in the duffle bag with a prescription bottle bearing his name and the keys to Hudson’s car. The film was developed in a reasonable effort to determine the propеr owner of the camera and the photographs inside. See Waine v. State,
Additionally, “the film was the fruit of a search incident to the arrest, the arrest was made with probable cause and therefore the search of the [duffle bag found in Wright’s immediate presence], including any containers therein, was legal.” Gosdin v. State,
In any event, the admission into evidence of the final photograph in the camera, if error, was harmless. The photograph, and the logical inferences drawn therefrom, show that Wright was in the bedroom, in the company of the victims, before their deaths. That information was already before the jury by other means, and would have been introduced regardless of whether the motion to suppress the
Judgments affirmed.
Notes
The victims were killed on June 30, 2000. On October 9, 2000, a Dade County grand jury indicted Wright on two counts of malice murder, two counts of felony murder in the commission of aggravated assault, two counts of aggravated assault, one count of possession of a firearm during the commission of a felony, and one count of concealing the death of another. He was tried before a jury on January 29-February 6, 2001, and found guilty on all counts. On February 6, 2001, Wright was sentenced to two consecutive terms of life in prison for the malice murders, to a consecutive term of five years in prison for possession of a firearm during the commission of a felony, and a term of five years in prison for concealing the death of another, to be served concurrently with the two life terms; the aggravated assaults merged with the felony murders, which stood vacated by operation of law. See Malcolm v. State,
Between 9:17 a.m. and 10:46 a.m. on June 30, 2000, Wright drove through a State Patrol driver’s license checkpoint on a road between his brother’s home and Tyson’s. He did not report any information concerning Hudson or Beverly to the trooper who сhecked his license.
A pretrial hearing was held on Wright’s motion to “Make a Determination of Indicia of Reliability,” at which the focus was Beverly’s relationship to the witnesses called at that hearing. Wright made no objection at trial to any specific testimony.
This argument ignores the fact that Beverly’s daughter is also Wright’s daughter.
This withdrawal apparently included any objection concerning Wright’s following Beverly from the motel in his car, forcing her off the road, threatening to break the window of Beverly’s car, and taking a camera from Beverly’s car. No argument was made concerning this incident, and Wright conceded “the Villager motel” had sufficient indicia of reliability, an apparent reference to the audiotape of Beverly’s roadside call by cellular telephone to 911, and her recounting of the incident upon arriving at her workplace immediately afterward.
The officers in Lejeune proceeded under a warrant that later proved to be invalid.
What the Lejeune opinion refers to as “the suspect and his only alleged cohort.”
At trial, Wright testified that he had a camera and took the photograph.
Dissenting Opinion
dissenting.
I dissent because the trial court erred in admitting the hearsay statements of Beverly Wright and denying the defendant’s motion to suppress.
In Yancey v. State,
I also join Justice Carley’s dissent because the warrantless search of Wright’s automobile violated his Fourth Amendment right
I am authorized to state that Presiding Justice Sears joins in this dissent.
See Slakman v. State,
See State v. Lejeune,
Dissenting Opinion
dissenting.
I dissent to Division 5 of the majority opinion and to the judgment of affirmance. In my opinion, State v. Lejeune,
The majority correctly avoids justifying the seizure under the automobile exception or as incident to the arrest. See State v. Lejeune, supra. In the absence of an exception to the warrant requirement, police officers are not authorized tо conduct a warrant-less investigatory search under the guise of an inventory search. Williams v. State,
“The state may inventory the contents of a car that has been lawfully impounded.” (Emphasis supplied.) Sams v. State,
Even though the decision to seize and inventory neеd not be based upon the “absolute necessity” to do so, unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be “unreasonable” and the resulting inventory search invalid. [Cit.]
State v. Thomason,
In both this case and Lejeune, “the officer[s] had no authority to impound the [vehicle] because [it] was legally parked and not creating a traffic hazard. [Cit.]” Sams v. State, supra at 535-536 (3). Furthermore, neither Wright nor the majority has presented any other non-investigatory justification for the impoundment of his car. The vehicle was not stopped by police on a highway, but was parked at the residential property of a friend, and there is no evidence that the car was connected to the arrest of Wright, that his ownership was in doubt, that he was consulted regarding alternate disposition of the vehicle, that it had an invalid tag, or that his friend requested its removal. Mitchell v. State,
The fact that the detention of Wright was expected to last for some time was not a valid reason for impoundment, because there was no evidence that the car was parked at a business or other loca
“In short, there was no showing that the impoundment of the car was reasonably necessary. [Cits.]” Mitchell v. State, supra at 246 (3). The trial court should have granted the motion to suppress the evidence obtained as a result of the warrantless seizure and search of the automobile, and the majority incorrectly affirms the denial of that motion.
I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join in this dissent.
Dissenting Opinion
dissenting.
For the reasons explained in Justice Carley’s dissenting opinion, I respectfully dissent to the majority’s affirmance of this appeal. I write separately, however, to note that the majority’s analysis in Division 2 regarding the trial court’s decision to admit the victim’s personal journal entries regarding her upcoming divorce litigation is in conflict with this Court’s precedent governing the admissibility of out-of-court statements under the necessity exception to the rule against hearsay. First, the majority improperly treats other evidence corroborating the journal’s contents as indicators of the journal’s reliability.
Moreover, there is nothing inherent in the nature of statements made in anticipation of or preparation for divorce litigation that suggests they will necessarily be truthful.
I am authorized to state that Chief Justice Fletcher joins in this dissent.
Op. at 458.
Yancey v. State,
Dix v. State,
Id.