Williamson v. State

FINAL COPY


              S19A0276. WILLIAMSON v. THE STATE.

      PETERSON, Justice.

      Stevie Dustin Williamson appeals his convictions for malice

murder, burglary, and other charges stemming from the July 2006

shooting death of George Rutten at Rutten’s Seminole County

home.1 Williamson challenges the sufficiency of the evidence as to


      1  On October 17, 2006, a grand jury indicted Williamson for malice
murder, three counts of felony murder (predicated on aggravated assault,
armed robbery, and burglary), aggravated assault, armed robbery, burglary,
and possession of a firearm during the commission of a crime. At an April 2007
trial, a jury found Williamson guilty of all counts. The trial court sentenced
Williamson to life for malice murder, a consecutive life sentence for armed
robbery, 20 years concurrent for burglary, and five years consecutive for the
firearm count. The remaining counts were merged or vacated by operation of
law. Williamson through trial counsel filed a motion for new trial on May 4,
2007. A succession of new attorneys filed entries of appearance in June 2007,
May 2008, and April 2014. The third post-trial counsel, an attorney with the
appellate division of the Georgia Public Defender Council, filed an amended
motion for new trial on November 4, 2014. The Public Defender Council
substituted counsel multiple times thereafter, with the lawyer who currently
represents Williamson before this Court filing an appearance in January 2018.
The trial court (not the judge who presided over the trial) denied the motion
for new trial on March 22, 2018. Williamson filed a timely notice of appeal, and
the case was docketed in this Court for the term beginning in December 2018.
We heard oral argument in the case on February 5, 2019.
burglary and a felony murder count predicated on burglary.

Williamson also argues that the trial court erred when it did not

grant his motion to suppress certain custodial statements and

evidence flowing therefrom and erred in charging the jury that (1)

the jury could consider any prior consistent statements by witnesses

as “substantive evidence” and (2) it should consider any statement

made by the defendant “with great care and caution.” Williamson

also has filed a motion with this Court asking that the case be

remanded to the trial court so that he can raise possible claims of

ineffective assistance of trial counsel. We conclude that the evidence

was sufficient to find that Williamson committed the crimes of which

he was convicted, the trial court did not err in finding that his

custodial statements were admissible, and none of the cited jury

instructions are a basis to reverse Williamson’s convictions. We also

conclude that Williamson is barred from raising in this direct appeal

any claims of ineffective assistance of trial counsel because he did

not raise them at the earliest possible moment. We therefore deny

the motion to remand and affirm Williamson’s convictions.
     According to the evidence viewed in the light most favorable to

the verdicts, Williamson had performed some odd jobs for Rutten,

but was then fired. On July 26, 2006, Josh Heisler, who also did work

for Rutten, arrived at Rutten’s residence and found Rutten lying on

the floor of his bedroom, unresponsive. Responding officers and

emergency medical personnel found Rutten lying on the bedroom

floor near a door that connected the bedroom to the garage that he

used as a workshop. Rutten’s body lay at one end of a trail of blood

that led to the garage. Rutten had been shot three times — in the

head, chest, and shoulder — and died of his wounds.

     Around the time of the victim’s death, Williamson told a

girlfriend, Lisa Finley, in a phone conversation that “he shot an

older guy in the head over some marijuana in his walls.” On August

25, 2006, Williamson told a GBI agent that he had ridden with

Heisler to Rutten’s house and waited in the truck while Heisler went

to speak to Rutten. Williamson then heard arguing and gunshots,
and Heisler returned and said that he thought he had killed Rutten.2

In interviews the next day, Williamson changed his story, telling

agents that he walked to Rutten’s home, where he found Rutten

sitting in his garage. Williamson said that he tried to discuss with

Rutten returning to work, but the two men argued when Rutten

wanted to talk about something else. Rutten grabbed Williamson

and the two tussled, Williamson recounted, and Rutten reached for

a rifle. Rutten was shot when the gun discharged multiple times

during the fight, falling to the ground inside his bedroom near the

door to the garage, Williamson recounted, consistent with how

authorities found Rutten’s body. Williamson told the officers that he

then entered Rutten’s bedroom, where Rutten was lying on the floor,

and took Rutten’s wallet before leaving. Williamson said that he

threw the wallet, as well as Rutten’s gun, into a wooded area nearby.




     2 Williamson repeated this version of events in his trial testimony, but

also testified that he was high on methamphetamine the night Rutten was
killed and could not remember everything that happened that night.
      Based on Williamson’s direction, officers recovered Rutten’s

gun and wallet. The recovered firearm was a .22-caliber bolt-action

rifle that had to be reloaded manually after each shot was fired. A

firearms expert determined that the recovered rifle (1) fired bullets

recovered from the victim’s body, (2) fired shell casings recovered

from the victim’s bedroom, and (3) chambered unfired bullets

recovered from the victim’s garage (which included at least one

found within a few feet of the garage’s entrance).

      1. Williamson argues that the evidence was insufficient to

sustain a guilty verdict on the burglary count, as well as the felony

murder count predicated on burglary, because the State failed to

prove that he did not have authority to enter Rutten’s home. We

disagree.3

      We review this claim for whether a rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. Jackson


      3 Because the felony murder counts were vacated by operation of law

upon Williamson’s conviction for malice murder, see Malcolm v. State, 

 (4) (

) (1993), he was not convicted of felony murder
and his argument as to the felony murder count predicated on burglary is moot.
See Anderson v. State, 

 (1) n.4 (

) (2016).
v. Virginia, 

 (

, 61 LE2d 560) (1979).

“This Court does not reweigh evidence or resolve conflicts in

testimony; instead, evidence is reviewed in a light most favorable to

the verdict, with deference to the jury’s assessment of the weight

and credibility of the evidence.” Hayes v. State, 

(

) (2013) (citation and punctuation omitted). “[I]t is the

role of the jury to resolve conflicts in the evidence and to determine

the credibility of witnesses, and the resolution of such conflicts

adversely to the defendant does not render the evidence

insufficient.” Graham v. State, 

 (1) (

)

(2017) (citation and punctuation omitted).

     At the time Williamson was alleged to have committed the

offenses charged, the burglary statute provided:

          A person commits the offense of burglary when,
     without authority and with the intent to commit a felony
     or theft therein, he enters or remains within the dwelling
     house of another or any building, vehicle, railroad car,
     watercraft, or other such structure designed for use as the
     dwelling of another or enters or remains within any other
     building, railroad car, aircraft, or any room or any part
     thereof. . . .
OCGA § 16-7-1 (a) (1980).4 Williamson argues that the evidence did

not show that he entered Rutten’s home without authority and thus

was insufficient to support his burglary conviction. Entry without

authority may be proven by circumstantial evidence alone. See

Bryant v. State, 

 (2) (

) (2007); Jones

v. State, 

 (1) (

) (1988). Although

circumstantial evidence must exclude every reasonable hypothesis

save the defendant’s guilt in order to support a conviction by itself,

this Court will not disturb a jury’s finding in that regard unless it is

unsupportable as a matter of law. See Akhimie v. State, 

 (1) (

) (2015).

      Williamson argues that the State failed to prove that he lacked

authority to enter Rutten’s bedroom, if indeed he entered it at all.5


      4 Williamson correctly notes that evidence that he merely remained in

Rutten’s home without authority would not be enough to convict him, since
that was a theory of burglary that was not charged in the indictment and on
which the jury was not instructed. See Bell v. State, 

 (1) (c)
(

) (2010).
      5 Whether Rutten’s “garage” could have been part of his “dwelling” is

unclear from this record (the burglary statute in effect at the time of the crime
did not explicitly include “curtilage” as part of a dwelling, as previous versions
Williamson points out that he and Rutten knew each other, and that

notwithstanding that Rutten had fired him, there was no evidence

of actual ill will between them. But that ignores that — by his own

confession to law enforcement — Williamson acknowledged entering

the bedroom after Rutten was shot. And given that the bolt-action

rifle was required to be reloaded after each shot, his claim that the

gun simply discharged during a scuffle — multiple times — could

easily be disbelieved by the jury in favor of a conclusion that

Williamson deliberately shot Rutten. And, of course, once

Williamson shot Rutten, any notion that he was then permitted to

enter Rutten’s bedroom is simply nonsense. The evidence was

sufficient to allow the jury to conclude that Williamson entered




of the statute had, see, e.g., 1910 Penal Code § 146; 1895 Penal Code § 149).
No party argues now or argued to the jury that the garage was part of the
dwelling, and it was plainly not an ordinary enclosed garage of the sort that
would usually qualify as part of a dwelling; although the record contains little
detail on this point, it appears to have been open on at least one side, and
various witnesses referred to it as a shed, a workshop, or simply “outside.”
Accordingly, we do not analyze Williamson’s entry into the “garage” as the
relevant entry for the burglary.
Rutten’s bedroom (and therefore his “dwelling”) without authority

to steal Rutten’s wallet, and thus to convict Williamson of burglary.

     Although Williamson does not challenge the sufficiency of the

evidence as to the other crimes of which he was convicted, we have

independently reviewed the record per our practice in murder cases.

We conclude that the trial evidence was legally sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt

that Williamson was guilty of the crimes of which he was convicted.

See Jackson, 

.

     2. Williamson next argues that the trial court erred when it did

not grant his motion to suppress his statements. Williamson argues

that the August 26 statement in which he first made inculpatory

remarks should have been suppressed because interrogating officers

made comments at odds with the warnings they gave pursuant to

Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966). We disagree.

     Williamson’s claim focuses on remarks agents made to him

during the August 26 interview in which he first changed his story
from one in which he was waiting in the car when Rutten was shot,

to a version in which Rutten was shot accidentally while Williamson

and Rutten fought.6 At the outset of the interview, agents read

Williamson     his rights pursuant to Miranda and obtained

Williamson’s written waiver. As the agents pressed Williamson to

confess, one of the agents told him that the evidence against him

“look[ed] horrible,” asked him, “what have you got to lose?” and

urged him to consider the merits of confessing:

           I mean, the facts, you need to say. I mean, you need
      to honestly look at how is it going to hurt you, you know
      what I’m saying? You’re here. You’re here at the jail for a
      reason. You know? And it’s like we’ve been saying, this is
      a decision.

Williamson also notes that, prior to his inculpatory statements,

another investigator told him that he was “already charged” and the

investigators were merely seeking “the truth and all the facts of it.”



      6 Williamson also argues that the physical evidence gathered after he

made that statement, as well as his subsequent August 26 statement, should
have been suppressed as “fruit of the poisonous tree” under Wong Sun v.
United States, 

 (

, 9 LE2d 441) (1963). Given
our conclusion that the trial court did not clearly err in finding Williamson’s
initial inculpatory statements admissible, we need not consider this argument.
     After a hearing, the trial court ruled that Williamson’s

statements were admissible, finding “from the preponderance of the

evidence that Defendant was advised of each of his Miranda rights,

that he understood each Miranda right, that he voluntarily waived

each Miranda right and that he thereafter gave statements freely

and voluntarily without any hope of benefit or fear of injury” at each

of the interviews in question. An agent testified at trial as to

Williamson’s initial inculpatory statements on August 26, and a

recording of the later August 26 interview where he made similar

statements was played for the jury.

     Williamson argues that his Miranda waiver was invalid

because he did not understand the rights that he purportedly

waived. Miranda provides that if a custodial interrogation continues

without the presence of an attorney after required warnings are

given, “a heavy burden rests on the government to demonstrate that

the defendant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed

counsel.” 

. “Only if the totality of the circumstances
surrounding the interrogation reveals both an uncoerced choice and

the requisite level of comprehension may a court properly conclude

that the Miranda rights have been waived.” Moran v. Burbine, 

 (

, 89 LE2d 410) (1986) (citation and

punctuation omitted). A statement by an interrogating agent that

contradicts the Miranda warnings is a circumstance that can

indicate a suspect did not knowingly and intelligently waive his

rights. See, e.g., Hart v. Attorney Gen. of the State of Fla., 

 (11th Cir. 2003). A trial court’s decision as to whether

a defendant made a knowing and intelligent waiver of his Miranda

rights will not be disturbed on appeal unless clearly erroneous. See

Findley v. State, 

 (2) (

) (1983).

     Williamson suggests that statements by the interrogating

agents contradicted the Miranda warning that anything he said

could be used against him. But at no point did either of Williamson’s

interrogators tell him explicitly that continuing to speak to them

would carry no negative consequences; instead, they merely raised

questions, asking him to consider “what [he had] to lose” and “how
is it going to hurt[.]” And when an agent asked Williamson, “what

have you got to lose,” Williamson immediately responded, “a whole

lot.” Williamson subsequently indicated to the officers that a

confession would put him in a “six-by-six cell,” further indicating

that he understood that inculpatory remarks on his part could have

serious negative consequences. This case is not like those

Williamson cites in which appellate courts have found error in

admitting   statements made after      agents made     affirmative

misrepresentations that contradicted the Miranda warnings they

already had given. See United States v. Lall, 

, 1283-

1284 (11th Cir. 2010) (detective told defendant that he would not

pursue any charges against him); Hart, 

(detective told defendant that “honesty wouldn’t hurt him” and that

the disadvantage of having a lawyer present was that a lawyer

would tell him not to answer incriminating questions) (punctuation

omitted); United States v. Beale, 921 F2d 1412, 1435 (11th Cir.

1991) (agents told defendant that signing the Miranda waiver form

would not hurt him); Foster v. State, 

 (8) (b) (

) (1988) (appellant was told that reiterating inculpatory

statements on videotape was not going to hurt “a thing” and would

be “as much for [his] benefit as” that of police) (punctuation omitted).

The trial court’s decision to admit Williamson’s statements was not

clearly erroneous.7

      3. Williamson also points to two aspects of the trial court’s jury

instructions as warranting a new trial.8 We find no basis for reversal

in the cited instructions.

      (a) Williamson argues that the trial court erred when it

charged the jury that if it found that a witness had made a material



      7 To the extent that Williamson also argues that his statements were

inadmissible as involuntary under the Due Process Clause of the Fourteenth
Amendment, the trial court also did not err in finding that they were
voluntarily made. Due process voluntariness claims also are evaluated by
considering the totality of the circumstances. See Welbon v. State, 

 (2) (

) (2017). And Williamson cites no circumstances other
than the law enforcement comments that he contends undermined the
Miranda warnings in arguing that his statements should have been
suppressed.
      8 Williamson correctly notes that counsel’s reservation of his right to

make objections to the instructions was sufficient under prevailing law at the
time of trial, which was held a few months before the July 1, 2007 effective
date of OCGA § 17-8-58. See Flournoy v. State, 

 (2) n.2 (

) (2014); State v. Kelly, 

 (1) (

) (2011).
prior consistent statement, it could “consider the other statement as

substantive evidence.” Pointing to an agent’s testimony regarding

prior consistent statements by Heisler and Finley, Williamson

argues that this charge suggested that these prior statements were

of greater importance than other evidence, or, worse, that other

evidence was not substantive evidence. It is true that we said, after

Williamson’s trial, that “an instruction on prior consistent

statements      should   no   longer   be given   except   where the

circumstances of an unusual case suggest that the jury may have

the mistaken impression that it cannot consider a prior consistent

statement as substantive evidence.” Stephens v. State, 

 (1) (a) (

) (2011) (noting that a jury question about

prior consistent statements or an improper argument that such

statements are not valid evidence may constitute grounds for

instruction).

     But we also have said that giving such an instruction will

usually not be reversible error. Stephens, 

 (1) (b); see

also Brown v. State, 

 (4) (

) (2015);
Johnson v. State, 

 (5) (

) (2011).

The instruction is not reversible error here. “[P]rior consistent

statements are substantive evidence that also tends to bolster the

witness’s trial testimony by disproving charges of recent fabrication

or improper influence or motive” and the instruction “does not

explicitly direct the jury to place any additional weight on prior

consistent statements beyond that which the law already gives

them[.]” Stephens, 

 (1) (b) (emphasis in original). And

“jury instructions must be read and considered as a whole in

determining whether the charge contained error.” Campbell v.

State, 

 (3) (

) (2013) (citation and

punctuation omitted). In this case, the jury was charged that

“evidence” includes all of the testimony of the witnesses and that the

jury was to determine what testimony to believe and what weight to

give each witness’s testimony. The jury was instructed about how to

determine credibility and how to consider conflicts in the evidence.

“Here the court’s instructions, taken as a whole, would not mislead

a jury of average intelligence.” Johnson, 

 (5)
(citation and punctuation omitted). We find no reversible error in

this instruction.

         (b) Williamson also argues that the trial court erred by ending

its pattern charge concerning statements by the defendant with the

words, “You should consider with great care and caution the

evidence of any statement made by the Defendant.” He argues that

this instruction had the effect of telling the jury that it should be

careful when considering the truth of all of his statements, including

his exculpatory statements and his testimony at trial. His argument

fails.

         In cases decided after Williamson’s trial, the Court of Appeals

has cautioned against giving the “great care and caution” charge

when the defendant has made exculpatory statements, and

recommended that the pattern charge utilizing this language be

modified. See Pincherli v. State, 

 (3) (b) &

n.25 (

) (2008); McKenzie v. State, 

 (3) (

) (2008).9 But looking at the jury

instructions as a whole, a reasonable jury would not have

understood the disputed instruction to mean that they should be

more skeptical of Williamson’s statements and testimony than those

of other witnesses. Read in context, the admonition to be careful in

considering evidence of a statement made by the defendant would

be understood to mean that it should consider a custodial statement

of the defendant only if the State proves that (1) the defendant was

first warned of his constitutional rights and clearly understood and

waived those rights; and (2) the defendant’s statement was

voluntarily given. It was after describing those requirements that

the trial court instructed the jury here:

           If you fail to find any one of the conditions I’ve just
     described, you must disregard the statement entirely and
     give it no consideration in reaching your verdict except for
     the purposes of impeachment. You should consider with
     great care and caution the evidence of any statement
     made by the Defendant.




     9 This language was subsequently omitted from the pattern charge. See

Campbell, 

 (3).
Moreover, the trial court instructed the jury that if the State had

met its burden for admissibility of a defendant’s custodial

statements, the jury was to “apply the general rules for testing the

believability of witnesses and decide what weight, if any, [to] give to

all or any part of such evidence.” Thus, the trial court’s giving of the

“great care and caution” instruction is not a basis for reversing

Williamson’s conviction, either.

     4. Having concluded that none of the enumerations of error

raised by Williamson on appeal are a basis for reversal, we turn to

a motion he filed along with his appellate brief. In his motion,

Williamson seeks a remand to develop evidence that his trial counsel

was ineffective. We conclude that any such claims of trial counsel

ineffectiveness are procedurally barred and deny the motion.

     As noted in the first footnote of this opinion, Williamson filed

an initial motion for new trial through trial counsel in May 2007.

One of the series of other lawyers assigned to represent Williamson

on appeal in the years that ensued filed an amended motion in

November 2014. This amended motion did not raise any claim that
trial counsel was ineffective. The lawyer who currently represents

Williamson before this Court filed an appearance in January 2018

and asked the trial court to rule on the motion for new trial based

on the existing filings. The trial court denied the motion for new trial

on March 22, 2018.

     In the motion to remand before us now, current counsel avers

that it was only after the trial court denied the motion for new trial

that counsel “realized that the file and record were incomplete.”

Counsel states that she “finally acquired the trial case file from the

local public defender=s office in early July 2018,” and, upon review of

the file, identified several potential ineffectiveness of trial counsel

claims, specifically that counsel failed to: (1) present evidence of

prior difficulties between Rutten and Heisler; (2) present evidence

that Heisler threatened multiple witnesses during the investigation;

(3) present phone records that would show that Williamson and

Finley never spoke on the phone after the murder; and (4) object to

multiple incidents of bolstering in an investigating officer’s
testimony. Williamson seeks remand so he can present new evidence

in a motion for new trial hearing.

     The State argues that any claims that trial counsel was

ineffective have been waived because they were not raised at the

earliest opportunity. We agree. Any claim of ineffectiveness of

counsel must be made at the earliest practicable moment. See

Thompson v. State, 

 (2) (

) (1987).

“[B]ecause [Williamson] did not raise any ineffectiveness claims in

his motion for new trial, despite the fact that he had new appellate

counsel before filing his amended motion for new trial, he has

waived these contentions on appeal.” Carter v. State, 

(2) (

) (2011); compare Slade v. State, 

(5) (

) (1997) (remanding case to trial court for an

evidentiary hearing on claim of ineffective assistance of trial

counsel, where trial court did not appoint appellate counsel until
after trial counsel had filed the notice of appeal).10 We deny

Williamson’s motion to remand.

      Judgment affirmed. All the Justices concur.




    Decided May 6, 2019 – Reconsideration denied June 3, 2019.

      Murder. Seminole Superior Court. Before Judge Bishop.

      Cara Clark, for appellant.

      Ronald V. McNease, Jr., District Attorney, Ronald S. Smith,

Timothy L. Eidson, Thomas S. Bishop, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Michael A. Oldham, Assistant Attorney General,

for appellee.



      10 Williamson concedes that the motion fails unless we make an
exception to existing case law based on a proffer of some specific evidence that
could be presented in support of an ineffectiveness claim. We decline to make
an exception.