Agee v. State

FINAL COPY

                   S20A0726. AGEE v. THE STATE.


      BLACKWELL, Justice.

      Linda Agee was tried by a Walton County jury and convicted

of murder in connection with the fatal shooting of her husband,

Randall Peters. Agee appeals, contending that the trial court erred

when it admitted certain hearsay statements of a deceased witness

and determined that Agee had forfeited her constitutional right to

confront that witness.1 For the reasons that follow, we reverse.

      1. Viewed in the light most favorable to the verdict, the

evidence presented at trial shows the following. Agee lived with

Peters and their twin daughters in a Walton County neighborhood


      1 Peters was killed on March 19, 1992. In April 2014, a Walton County

grand jury indicted Agee for murder with malice aforethought and murder in
the commission of a felony (aggravated assault). Agee was tried in May and
June 2015, and the jury found her guilty on both counts. The trial court
sentenced Agee to imprisonment for life for malice murder, and the felony
murder count was vacated by operation of law. Agee filed a motion for new trial
in June 2015, and she amended the motion in January 2018. After a hearing,
the trial court denied Agee’s motion for new trial in September 2019. Agee
timely appealed, and this case was docketed to the April 2020 term of this
Court and orally argued on April 22, 2020.
that was described by a witness as a “very good” and “very safe” area.

Peters ran a produce delivery business with the help of Agee. Due to

the couple’s work hours, their daughters often would spend the night

at the home of Peters’s parents, Horace and Linda Peters.

     Peters and Agee’s marriage was troubled. For about three or

four years, Agee had been having an affair with Jeff Sargent, who

was himself married and had four daughters. Sargent eventually

separated from his wife, and their divorce was finalized in the month

of Peters’s death. Peters knew about Agee’s affair with Sargent,

which often led to arguments.

     On March 19, 1992, around 9:45 p.m., Agee dropped off her

daughters at Horace and Linda’s house. Less than an hour later,

Linda heard the doorbell ring, and when she opened the door, Agee

was there, asking them to check on Peters. Agee said that, when she

came home to her house, she saw a “tall dark figure go across the

hall,” heard water running, and heard Peters yell, “It’s hot, it’s hot.”

Agee explained that she then got in her car and drove to Horace and

Linda’s house to seek help.

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     Upon hearing this, Horace immediately left to go to Agee’s

house, while Linda called Agee’s neighbor and asked him to check

on Peters. When the neighbor entered Agee’s house, he found Peters

lying in the hallway with a “hole in his chest.” The police arrived

shortly thereafter. An autopsy revealed that Peters died from two

gunshot wounds.

     An officer who entered the house observed that the den and one

of the bedrooms were ransacked, but the other bedrooms were left

untouched. The bathtub contained blood spatters and was full of

water. A wad of cash lay on the ground in front of the residence.

Peters’s truck was gone. The police concluded that this was not a

burglary because, aside from the truck, nothing of value was taken

from the house. Moreover, it was not common for a burglary to occur

at that time in the evening, when most people are at home and

awake. Peters’s truck was found later that night, abandoned on the

side of a road, with some personal belongings scattered on the

ground beside the vehicle. There were no signs of forced entry into

the truck.

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     The police interviewed Agee at 1:40 a.m. on March 20, several

hours after Peters’s death, and she gave the following account of the

preceding evening. About 7:40 p.m., Agee went with her daughters

for softball practice at a nearby ballpark known as Coker Field. After

practice, Agee dropped off her daughters at her in-laws’ house. When

she arrived back home around 10:00 p.m., she realized that she

might have left her tennis shoes at the ball field. She saw Peters

talking on the phone, so she patted him on the arm and told him

that she had to go back to the ball field to get her shoes. Agee then

drove to Coker Field and retrieved her tennis shoes from a bleacher

in the dugout.

     Agee told the police that, when she got home from Coker Field

around 10:30 p.m., she heard a dog barking. She opened the door

and stepped inside the house, with the tennis shoes in one hand and

her pocket book in the other. At that point, she heard Peters say, in

a “crying” tone of voice, “It’s hot, it’s hot.” She looked up and saw a

dark-colored “jacket standing there in the doorway of that bathroom

I guess where [Peters’s body] was found, there in the hall . . . . I could

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just see like the back part of the jacket.” She also saw that the back

door was wide open. Agee said that she was scared and, not knowing

what to do, drove to her in-laws’ house to get help. Agee further told

the police during that interview that she normally carried a set of

keys to Peters’s truck but had removed them from her key chain the

day before, or several days earlier, because she did not know who

was going to drive the truck to pick up produce. She explained that

Horace sometimes drove the truck and that he borrowed keys either

from Peters or Agee. She also said that Peters left his keys in the

truck “99 percent of the time.”

     Agee’s statements to the police were cast in doubt by other

evidence. One witness testified that he was a youth minister in

March 1992 and was responsible for closing down Coker Field. On

March 19, he saw Agee leave practice with her daughters around

9:30 p.m., and he remained on the field until about 10:10 p.m., but

he did not see any shoes left behind in the dugout (he had specifically

checked that area) and did not see Agee return to the field.

Furthermore, Horace testified that he did not have any

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conversations with Agee about leaving him the keys to the truck.

      The police also interviewed Sargent on the morning after

Peters’s death. According to one of the interviewing officers, Sargent

was “highly agitated” and “very, very nervous” throughout the

interview. Among other things, Sargent admitted having an affair

with Agee and said that he had called Agee up to three times on the

morning of March 19. Sargent further admitted driving by Agee’s

house around 10:00 p.m. that night to try and see her. Not long

afterwards, Sargent said, he met Agee briefly at a day care center

known as Susan’s Play World. Sargent explained that Agee drove up

behind him and blinked her lights, and they stopped at the day care

center and had a brief conversation.2 The interviewing officers

indicated to Sargent that they did not believe he was being entirely

truthful. Toward the end of the interview, Sargent repeatedly told



      2 The interviewing officer gave two versions of what Sargent and Agee

discussed at Susan’s Play World. The officer first testified that, according to
Sargent, Agee said “something to the effect that she had been to the house and
something was wrong with [Peters] and she was going to get help.” But the
officer also testified that Sargent told them the conversation was about “asking
[Peters] for a divorce and not wanting to work on the truck anymore.”

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the officers that, if he told them the truth, “he’d get life or the electric

chair.”

     The police interviewed Agee for a second time, and she

admitted that, while on her way to her in-laws to seek help, she

stopped briefly at Susan’s Play World to talk to Sargent. Agee did

not say what they discussed. Susan’s Play World was less than a

quarter mile from the Monroe Police Department.

     A deputy testified that he transported Sargent to the Georgia

Bureau of Investigation crime lab in Atlanta to take a polygraph

test. Once they got there, however, Sargent’s attorney contacted the

deputy and said that he advised Sargent not to take the polygraph

test. On the way back to Walton County, Sargent asked the deputy

to turn around and go back to the crime lab so he could take the

polygraph test and prove that he was not at the scene of the crime.

Sargent again said that he was scared of getting “life or the death

penalty.”

     One of Sargent’s daughters testified that, when she learned

that her father was a suspect in Peters’s murder, she repeatedly

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asked him about it, and he gave three different answers. Once,

Sargent told her that, if he told the truth or said something, he was

“going to go to jail.” Another time, Sargent “just put his hand up” to

indicate he did not want her asking questions, and yet another time,

he said, “I got a Domino’s [Pizza] receipt, I can tell you I wasn’t

there.”

     Other evidence concerned Agee’s conduct in the days

surrounding Peters’s death. Most notably, about a week before

Peters was killed, Agee told her sister that she might not be able to

go on a trip to North Carolina that was planned for the weekend of

March 21-22 (to visit Agee’s brother). Agee explained to her sister

that Peters might not let her go — even though the sister had

confirmed with Peters that Agee could go — and Agee also said that

she was “just tired of all this s**t.” After Peters was killed, according

to several witnesses, Agee had an unusually calm demeanor, and

one witness testified that Agee’s grief at Peters’s funeral appeared

faked. Agee filed a claim on Peters’s life insurance policy only a week

after his death. She ultimately collected over $100,000 in life

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insurance proceeds and inherited some other valuable assets.

Furthermore, when Horace learned that Agee was a suspect, he

asked her: “[Peters] didn’t have to be murdered. Why didn’t you get

a divorce?” Agee replied, “I asked him for one and he wouldn’t give

me one.”

     In addition, the State presented the testimony of Alan Cook,

who had served as the district attorney for Walton County. Cook

testified that, about a year after Peters was killed, the investigation

into his killing had stalled. To jump-start the investigation, Cook’s

office petitioned the superior court to grant use and derivative-use

immunity to Sargent so that he could be compelled to testify before

the grand jury without regard to his constitutional privilege against

self-incrimination. The day before the immunity hearing, however,

Sargent and Agee were married. As a result, when Sargent received

immunity and was subpoenaed to testify before the grand jury, he

moved to quash the subpoena on the ground of marital privilege,

claiming that he could not be compelled to testify against his



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spouse.3 After a hearing, the superior court granted the motion to

quash, finding that the marital privilege applied, and the superior

court’s decision was affirmed by the Court of Appeals.4 Given

Sargent’s invocation of the marital privilege, Cook testified, the

prosecution was “at a dead end.”

     Trial evidence further showed that Sargent was still married

to Agee on October 12, 2006, when he died as a result of a brain

aneurysm. In 2010, the Walton County Sheriff’s office retained a

retired federal agent to investigate Peters’s death. After a 22-month

investigation, the retired agent recommended that Agee be

prosecuted.

     Agee does not dispute that the trial evidence, as summarized

above, is sufficient to sustain her conviction. But consistent with our



     3 At that time, the marital privilege statute provided, in part: “Husband

and wife shall be competent but shall not be compellable to give evidence in
any criminal proceeding for or against each other.” See former OCGA § 24-9-
23 (a). The current version of the statute, OCGA § 24-5-503, retains this
language.

     4 See State v. Peters, 

 (

) (1994).




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usual practice in murder cases, we independently have reviewed the

record to assess the legal sufficiency of the evidence.5 We conclude

that the evidence presented at trial, when viewed in the light most

favorable to the verdict, was sufficient to authorize a rational trier

of fact to find beyond a reasonable doubt that Agee was guilty of

murder with malice aforethought. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).6

      2. Agee’s sole claim on appeal is that the trial court erred when

it ruled that Sargent’s statements to law enforcement were

admissible. She argues that those statements were “testimonial,”

and because she did not have a prior opportunity to cross-examine



      5 We remind litigants that, beginning with cases docketed to the term of

this Court that begins in December 2020, we will end our practice of
considering sufficiency sua sponte in non-death penalty cases. See Davenport
v. State, 

 (4) (b) (

) (2020). This Court began
assigning cases to the December term on August 3, 2020.

      6 We note that, when we review the sufficiency of the evidence, “we
consider all of the evidence admitted by the trial court, regardless of whether
that evidence was admitted erroneously.” Dublin v. State, 

 (5)
(

) (2017) (citation and punctuation omitted). Our holding that the
evidence was sufficient to sustain Agee’s conviction takes into account
Sargent’s statements to the police, which were admitted erroneously, as
discussed below. We express no opinion as to whether the evidence would have
been constitutionally sufficient absent those statements.
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Sargent,    the   admission   of   those    statements   violated    the

Confrontation Clause of the Sixth Amendment. See Varner v. State,

 (2) (b) (i) (

) (2019) (“A Confrontation

Clause violation occurs when an out-of-court statement admitted

into evidence is ‘testimonial’ in nature and the declarant is

unavailable at trial and was not previously subject to cross-

examination.” (citing Crawford v. Washington, 

 (

, 158 LE2d 177) (2004)). See also Johnson v. State, 

 (4) (

) (2011) (“The Confrontation Clause generally

prohibits the admission of an out-of-court testimonial statement

made by a declarant who is not available for cross-examination by

the accused.”).

     When the trial court admitted Sargent’s statements into

evidence,   it    acknowledged     Agee’s   constitutional   right    to

confrontation, but it ruled that she had forfeited that right through

wrongdoing. The trial court elaborated on this ruling in its order

denying Agee’s motion for a new trial. The court explained that,

although “it would seem pretty clear” that the Confrontation Clause

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“would categorically prohibit the introduction of Sargent’s pre-trial

statements,” these statements nevertheless were admissible

because Agee herself procured Sargent’s unavailability. Specifically,

the court found, Agee exercised control over Sargent and married

him for the purpose of using the marital privilege to prevent him

from testifying against her. Agee’s marriage, the court said, was “a

sham designed to procure the unavailability of a key witness.”

     To begin, the State does not dispute that Sargent’s statements

to law enforcement — including statements that he was afraid of

receiving life imprisonment or the death penalty if he told the truth

— are presumptively inadmissible under the Confrontation Clause.

Those statements were “testimonial,” and Agee did not have an

opportunity to cross-examine Sargent about the statements. See

Varner, 

 (2) (b) (i); Jenkins v. State, 

(2) (

) (2004) (“[A] statement is testimonial if it is made

with the involvement of government officers in the production of

testimonial   evidence,   which   includes   police   interrogations.”

(Citation and punctuation omitted)). The only exception to the

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Confrontation Clause that arguably applies in this case is forfeiture

by wrongdoing. See Davis v. Washington, 

 (IV)

(

, 165 LE2d 224) (2006) (“[O]ne who obtains the

absence of a witness by wrongdoing forfeits the constitutional right

to confrontation.”). See also Crawford, 

 (V) (A) (“[T]he

rule of forfeiture by wrongdoing (which we accept) extinguishes

confrontation claims on essentially equitable grounds . . . .”).7 We

have said that, to establish forfeiture by wrongdoing, the State must

show “(1) that the defendant engaged or acquiesced in wrongdoing,

(2) that the wrongdoing was intended to procure the declarant’s

unavailability, and (3) that the wrongdoing did procure the

unavailability.” Hendrix v. State, 

 (2) (

) (2018) (citation and punctuation omitted; emphasis supplied).

      In determining that Agee forfeited her confrontation rights, the




      7 Wrongful procurement of a witness’s absence is also an exception to the

general prohibition on hearsay under the rules of evidence. See OCGA § 24-8-
804 (b) (5) (“The following shall not be excluded by the hearsay rule if the
declarant is unavailable as a witness: . . . A statement offered against a party
that has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.”).
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trial court focused on its finding that Agee married Sargent

ostensibly to prevent him from testifying against her through the

use of marital privilege. This finding is not dispositive, however, and

we need not decide whether Agee’s marriage to Sargent indeed

qualifies as “wrongdoing” sufficient to forfeit her confrontation

rights. That is because the State has failed to show the third

prerequisite of forfeiture by wrongdoing — that Agee’s conduct

actually procured Sargent’s unavailability at trial. See Hendrix, 

 (2). Undisputed evidence shows that Sargent died from a

natural cause — a brain aneurysm — years before Agee was even

indicted. Thus, it was Sargent’s natural death, not any conduct by

Agee, that caused him to be unavailable to testify and be subjected

to cross-examination at her trial. Whether Sargent would have

remained married to Agee but for his death and whether he would

have again asserted his marital privilege if she had been indicted

and brought to trial in his lifetime are matters of pure speculation.

Forfeiture by wrongdoing means that a defendant cannot be heard

to object to out-of-court declarations offered against her on the

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ground that she had no opportunity to confront and cross-examine

the declarant when the reason she could not confront and cross-

examine the declarant is her own wrongdoing designed to procure

the declarant’s absence. See Giles v. California, 

(II) (C) (

, 171 LE2d 488) (2008); Davis, 

(IV). Because there is no causal connection between Agee’s alleged

wrongdoing and Sargent’s unavailability at trial, the forfeiture-by-

wrongdoing exception does not apply.8 See Greene v. State, 

 (2) (

) (2018) (under the forfeiture-by-

wrongdoing exception, a trial court may admit statements “against

the party who caused the victim’s absence” (emphasis supplied));

United States v. McLeod, 

 (11th Cir. 1995) (“A


      8 Although Agee’s conduct may have caused Sargent to be unavailable to

testify before a grand jury in 1993, she had no right to confront and cross-examine Sargent in a grand jury proceeding, and there was nothing to forfeit
with respect to that proceeding. See Anderson v. State, 

 (11) (

) (1988); In re Hall County Grand Jury Proceedings, 

 (3) (

) (1985) (“An individual has no constitutional right
to appear before the grand jury to present evidence and to cross-examine
witnesses.” (Citation and punctuation omitted.)). Compare United States v.
Ponzo, 

 (VII) (1st Cir. 2017) (forfeiture by wrongdoing
applied where defendant’s wrongful conduct prevented him from confronting
witness at a prior trial).

                                      16
defendant who causes a witness to be unavailable for trial forfeits

his right to confrontation.” (Emphasis supplied)). Compare Hendrix,

303 Ga. at 529 (2) (forfeiture-by-wrongdoing applied where the

defendant’s “wrongdoing did actually cause          [the witness’s]

unavailability” (emphasis supplied)). Accordingly, the trial court

erred when it ruled that Sargent’s statements to law enforcement

were admissible.

     An error of “constitutional magnitude,” such as the one in this

case, will not warrant a reversal “if the State can prove beyond a

reasonable doubt that the error did not contribute to the verdict.”

McCord v. State, 

 (2) (a) (

) (2019)

(citation and punctuation omitted). In this case, however, the State

does not even argue that the admission of Sargent’s statements was

harmless, and such an argument would have no merit. Sargent’s

statements — especially statements that he would receive life

imprisonment or the death penalty if he told the truth — were highly

incriminating. They were essentially an implicit admission of guilt,

providing the most direct evidence that Sargent was involved in

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Peters’s murder. These statements also cast a large shadow of

suspicion over Agee, given her close association with Sargent at the

time of the killing and their eventual marriage. Indeed, in its closing

argument,    the    prosecution    heavily   emphasized      Sargent’s

statements about his receiving life in prison or the death penalty if

he told police what he knew about the murder.

     At the same time, the other evidence against Agee was entirely

circumstantial and not particularly strong. No evidence definitively

identified Agee or anyone else as the shooter. While a reasonable

juror might conclude that certain statements and conduct of Agee

suggested that she was somehow involved in Peters’s murder, the

nature and extent of her involvement are far from clear. Thus, it

cannot be said beyond a reasonable doubt that the admission of

Sargent’s statements did not contribute to the verdict. See Benton

v. State, 

 (2) n.8 (

) (2017). For the

foregoing reasons, we reverse the trial court’s denial of Agee’s

motion for a new trial.

     Judgment reversed. All the Justices concur.

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                     Decided October 5, 2020.

      Murder. Walton Superior Court. Before Judge Johnson.
      Bruce S. Harvey, for appellant.
      Layla H. Zon, District Attorney; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Meghan H.
Hill, Assistant Attorney General, for appellee.




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