Abbott v. State ( 2021 )

In the Supreme Court of Georgia
Decided: May 17, 2021
S21A0075. ABBOTT v. THE STATE.
LAGRUA, Justice.
Appellant Emerson Mack Abbott was tried by a Floyd County
jury and found guilty of murder and numerous other crimes arising
from the shooting deaths of James and Myra Reeves.1 On appeal,
1 The crimes occurred on January 23, 2015. In May 2015, a Floyd County
grand jury indicted Appellant, charging him with two counts of malice murder,
two counts of felony murder, two counts of burglary, four counts of aggravated
assault, two counts of aggravated battery, and one count each of armed
robbery, theft by deception, and possession of a weapon during the commission
of a crime. Appellant was tried before a jury in April 2018 and found guilty on
all counts. On July 10, 2018, the trial court sentenced Appellant to two
consecutive terms of life in prison without the possibility of parole for the
malice murder counts; a consecutive five-year term for the weapon-possession
count; and various concurrent terms for the first of the two burglary counts,
the armed robbery count, and the theft by deception count. The other counts
merged or were vacated by operation of law. Appellant filed a timely motion
for new trial, and the trial court denied the motion in an order entered on
October 16, 2019. After his first notice of appeal, filed six days late and
directed to the Court of Appeals, was transferred to this Court and dismissed
as untimely, Appellant was granted an out-of-time appeal on June 5, 2020.
Appellant then filed a timely notice of appeal, and this case was docketed to
Appellant contends that the trial court erred in allowing a witness
to testify at trial while under the influence of alcohol and in
admitting evidence of a prior act of theft. Appellant also contends
that the State failed to disclose an agreement with a testifying
witness, in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt
1194, 10 LE2d 215) (1963). We discern no error, and thus we affirm.
The evidence presented at Appellant’s trial showed that,
shortly after 3:00 p.m. on January 23, 2015, James and Myra Reeves
were found dead in their Floyd County home, both victims of
recently inflicted shotgun wounds. The door leading into the home
from the carport, which was not visible from the street, had been
shot through. The home was otherwise in good order and
undisturbed.
At the time, Appellant lived next door to the Reeveses with his
girlfriend, Kelly McCleskey. The two properties were separated by
a wooded area with a fence that had an opening between the
the term of this Court commencing in December 2020 and thereafter was
submitted for a decision on the briefs.
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properties. McCleskey testified that, on January 23, she awakened
from a nap in the early afternoon and tried unsuccessfully to reach
Appellant on his phone, after which, at around 2:35 p.m., Appellant
“[came] up walking out of the pasture,” and then left the house in
his truck to pick up McCleskey’s 13-year-old daughter, Beth, from
school. Beth testified that on the afternoon of January 23, Appellant
was late picking her up and, when he did arrive, she noticed that he
was in possession of a large amount of cash.
According to one of the lead investigators, Appellant became a
person of interest after he repeatedly “interjected” himself into the
investigation by initiating contacts with law enforcement officers.
In the course of his several interviews with investigators in the days
following the crimes, investigators noted inconsistencies in
Appellant’s statements as to the chronology of his activities on the
afternoon of the murders and as to certain basic facts, such as
whether he owned a shotgun and whether he had ever been inside
the Reeveses’ home.
3
In early February, investigators were alerted to a $7,500 check
that had been cashed against the Reeves’ SunTrust bank account on
the afternoon of the murders. Investigation revealed that the payee
was Appellant, whose image was captured in bank security camera
photos showing him at the bank at 3:10 p.m. on January 23. On that
same afternoon, Appellant went to a title pawn shop near the
SunTrust branch and paid more than $4,000 in cash to redeem a car
that had been recently repossessed.
Evidence showed that the repossessed car had belonged to
McCleskey, until Appellant forged her signature to transfer the title
to himself and pawned the title for cash. Appellant then failed to
repay the loan, and the car was repossessed; January 23 was the
final day of its redemption period. After Appellant’s arrest,
McCleskey also discovered that $5,000 was missing from her bank
account and that the balance in her child support debit account had
been drawn down without her knowledge.
In an interview after the discovery of the SunTrust check, GBI
Special Agent Earl Glover asked Appellant whether he had ever
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borrowed money from or done any work for the Reeveses. Appellant
told Agent Glover that he had recently agreed to remove some trees
from the Reeveses’ property but did not volunteer that he had
received any payment for this work. Later in the interview, when
asked specifically whether he had already been paid for the job,
Appellant admitted that he had, acknowledging for the first time the
$7,500 check he had cashed. Appellant told Agent Glover that he
had needed the money up front to purchase the tree removal
equipment, but ultimately admitted that he had never made such a
purchase. And, while initially claiming he still had the $7,500,
Appellant later admitted he had spent it. Though Appellant told
Agent Glover that Myra had given him the check at the Reeveses’
home on either the Tuesday or Wednesday before the murders,
evidence reflected that the Reeveses had been in Alabama on those
dates.
Additional testimony reflected that, one week after the
murders, Appellant called police to report that a threatening
message had been painted on the storm door of his and McCleskey’s
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home. Upon investigation, officers noted with suspicion that the
message had been written neatly, as though the perpetrator had not
been in a hurry. In the course of his interview that evening,
Appellant told the responding officer that there had been several
recent prowling incidents around his home and that a four-wheeler
belonging to McCleskey had recently been stolen from their
property. However, police records showed that no such incidents
had ever been reported, and the four-wheeler was later discovered
at the residence of Appellant’s mother.
There was also evidence that Appellant had knowledge of non-
public information about the murders. Beth McCleskey’s boyfriend,
Reed Jackson, testified that, in a conversation two days after the
murders, Appellant told Jackson that whoever had killed the
Reeveses “shot [James] in the chest, and they made the woman
crawl to the back bedroom, and then that’s where she was shot, and
on the way back out, they shot him again to make sure he was dead.”
Appellant was arrested for the murders on February 24, 2015.
One of Appellant’s jail cellmates, Michael Lehr, testified that, while
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Appellant never explicitly admitted to committing the murders, he
made numerous statements strongly suggestive of his involvement.
Lehr testified that Appellant told him he “[j]ust never thought that
January day would ever catch up” and stated on various occasions,
“you can’t do ballistics on a shotgun”; “if I hadn’t messed with that
damn check”; and “I was thinking of going to Mexico. Too late now.
I’m f**ked!” Appellant also made statements to the effect that he
was certain he would never be a suspect, as he believed “this whole
damn deal would fall on” the Reeveses’ son, who was “strung out on
drugs” and thus “the cops would think he did it for the money.”
According to Lehr, Appellant often mumbled in his sleep, and in one
such instance, Appellant said, “once I saw all the blood, and using a
shotgun, it felt like an awesome rush at the time.”2
1. In his first enumeration of error, Appellant contends that
the trial court erred by allowing McCleskey to testify because she
2Appellant does not challenge the sufficiency of the evidence supporting
his convictions, and we no longer routinely consider sufficiency sua sponte in
non-death penalty cases. See Davenport v. State, 309 Ga. 385, 399 (846 SE2d
83) (2020).
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was under the influence of alcohol when she appeared at trial. The
record reflects that McCleskey, who admitted to being a “serious
alcoholic,” was found to have a blood-alcohol content of .03 on the
morning she appeared to testify at Appellant’s trial. Consequently,
the prosecutor deferred calling McCleskey and proceeded with
another witness, while McCleskey waited, under supervision,
elsewhere in the courthouse. Several hours later, and only after her
blood-alcohol content was confirmed to have returned to zero,
McCleskey was called to testify. During her testimony, McCleskey
admitted that she had been drinking alcohol on the previous evening
but stated that she had not consumed any alcohol that day. At no
time did Appellant object to proceeding with McCleskey’s testimony.
Because Appellant failed to object, we review this enumeration
for plain error only. See OCGA § 24-1-103 (a) (1), (d). To establish
plain error, Appellant must not only show the existence of an error
but also show that
(1) the error was not affirmatively waived by the
appellant; (2) the error is “clear or obvious, rather than
subject to reasonable dispute”; (3) the error “affected the
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appellant’s substantial rights”; and (4) “the error
seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
McGarity v. State, Case No. S20A1528, 2021 WL 954749, at *4 (2)
(decided Mar. 15, 2021) (citation omitted). Here, there was no
evidence that McCleskey was in any way impaired at the time she
testified. To the contrary, the evidence showed that her blood-
alcohol content had returned to normal, andAppellant identifies no
instances in which McCleskey appears to have responded to
questioning inappropriately. Accordingly, there was no error, much
less any plain error, in the trial court’s allowing her to testify. See
Geter v. State, 231 Ga. 615, 617 (203 SE2d 195) (1974) (no error in
permitting testimony of witness who was under effects of medication
and suffering from drug addiction but was shown to be lucid and
alert). This enumeration is therefore without merit.
2. Appellant next contends that the trial court erred by
admitting, as intrinsic evidence, testimony about the theft of
McCleskey’s four-wheeler. Appellant asserts that the evidence did
not constitute intrinsic evidence and should have been subject to,
9
and held inadmissible under, OCGA § 24-4-404 (b) (providing that
“other acts” evidence is admissible only for limited purposes).
Appellant asserts further that, even if the evidence was properly
classified as intrinsic, it should have been excluded under OCGA §
24-4-403 (“[r]elevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice”). We
discern no abuse of discretion in the admission of this evidence.
At a pretrial hearing, the State contended that the theft of the
four-wheeler was part of a series of financially motivated crimes,
including the unauthorized pawning of McCleskey’s car title and
theft of her cash, perpetrated by Appellant during the period leading
up to the murders. The State contended further that, as part of his
plan to commit the murders, Appellant had been spreading word
among his neighbors about crimes in the area to make it appear that
the murders were part of a “sort of reign of terror that had been
going on in the neighborhood.” As the State also noted, Appellant
had made reference to the theft of the four-wheeler in some of his
statements to police after the murders. The trial court held that
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evidence of Appellant’s theft of the four-wheeler was admissible as
intrinsic evidence, finding that it was “necessary to complete the
story of the crime” and “form[ed] an integral and natural part of the
account of the crime.”
As we have previously explained, “[t]he limitations and
prohibition on ‘other acts’ evidence set out in OCGA § 24-4-404 (b)
do not apply to “‘intrinsic evidence.’” Smith v. State, 302 Ga. 717,
725 (4) (808 SE2d 661) (2017). “Intrinsic evidence” is defined as
evidence that (1) pertains to an uncharged offense arising from the
same transaction or series of transactions as the charged offense; (2)
is necessary to complete the story of the crime; or (3) is inextricably
intertwined with the evidence regarding the charged offense. See
Harris v. State, 310 Ga. 372, 377 (2) (b) (850 SE2d 77) (2020).
[E]vidence pertaining to the chain of events explaining
the context, motive, and set-up of the crime is properly
admitted if it is linked in time and circumstances with the
charged crime, or forms an integral and natural part of an
account of the crime, or is necessary to complete the story
of the crime for the jury. . . . And this sort of intrinsic
evidence remains admissible even if it incidentally places
the defendant’s character at issue.
11
Smith, 302 Ga. at 725 (4). On appeal, we review the admission of
intrinsic evidence for an abuse of discretion. See id. at 725-726 (4).
Here, we discern no abuse of discretion in the trial court’s
determination that the alleged theft of the four-wheeler qualified as
intrinsic evidence. In assessing whether evidence is “necessary” in
this context, we have noted that “‘necessary’ is not used in a strictly
literal sense, but rather, refers to what evidence is reasonably
necessary for the State to complete the story of the crime.” Harris,
310 Ga. at 379 (2) (b). In this case, the theft of the four-wheeler
occurred in the weeks leading up to the murders, during the same
period of time when Appellant was shown to have pawned the title
to McCleskey’s car without her knowledge and stolen thousands of
dollars in cash from her. As such, the theft formed part of the
chronology of Appellant’s crimes leading to the murders, offering
insight into his motive. See, e.g., McKelvey v. State, Case No.
S20A1548, 2021 WL 769435, at * 5 (3) (decided Mar. 1, 2021)
(evidence of prior crime was properly admitted as intrinsic evidence
where it pertained to chain of events leading to charged crimes and
12
helped explain the defendant’s motive); Priester v. State, 309 Ga.
330, 333 (2) (845 SE2d 683) (2020) (evidence of defendant’s drug-
dealing was properly admitted as intrinsic evidence because it was
relevant to an understanding of the motive for the charged crimes).
Moreover, after the murders, Appellant himself told investigators
about the theft, feigning ignorance about the vehicle’s whereabouts,
as part of his narrative about a spate of recent crimes in the area.
The theft thus also figured into Appellant’s attempt to deflect blame
from himself for the murders, providing evidence of premeditation
and showing the “set-up of the crime.” Smith, 302 Ga. at 725 (4).
Accordingly, there was no abuse of discretion in classifying this
evidence as intrinsic.
Appellant also claims that, even if properly classified as
intrinsic, the evidence was highly prejudicial and thus should have
been excluded under OCGA § 24-4-403. However, we see no abuse
of discretion in the trial court’s concluding that the probative value
of the evidence was not substantially outweighed by the danger of
unfair prejudice. See Harris, 310 Ga. at 379 (2) (b) (where
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defendant’s prior violent acts provided context to other witnesses’
accounts, probative value of that evidence was not substantially
outweighed by danger of unfair prejudice); Smith, 307 Ga. at 273 (2)
(c) (where defendants’ ongoing drug use and possible drug dealing
“gave further context” for incidents leading to charged crimes,
probative value of that evidence was not substantially outweighed
by danger of unfair prejudice).
3. In his final enumeration, Appellant contends that the State
violated Brady by failing to disclose an agreement with Lehr
regarding his trial testimony. Appellant claims that, shortly after
reporting Appellant’s statements about the murders, Lehr entered
a guilty plea on an aggravated assault charge on highly favorable
terms – receiving only probation – and a warrant pending against
him in Alabama was dismissed. Noting Lehr’s testimony that the
detective with whom he spoke told him to keep notes of Appellant’s
incriminating statements and offered to “write a letter” to the
district attorney’s office on Lehr’s behalf, Appellant contends this
evidence reveals the existence of a deal with Lehr that the State
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failed to disclose. We discern no error.
It is well settled that
[t]he [S]tate is under a duty to reveal any agreement, even
an informal one, with a witness concerning criminal
charges pending against that witness, and a failure to
disclose such an agreement constitutes a violation of the
due process requirements of Brady v. Maryland.
Younger v. State, 288 Ga. 195, 200 (4) (702 SE2d 183) (2010)
(punctuation and citations omitted). Further,
[t]o prevail on a Brady claim, a defendant must show that
the State possessed evidence favorable to the defendant;
[the] defendant did not possess the evidence nor could he
obtain it himself with any reasonable diligence; the
prosecution suppressed the favorable evidence; and had
the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceeding
would have been different.
Id. As explained below, Appellant’s Brady claim fails for the simple
reason that he has failed to establish the existence of any deal
between Lehr and the State.
At trial, Lehr testified that he reported Appellant’s
incriminating statements because he found them “quite disturbing”
and they bothered his conscience. Lehr testified that he never asked
15
for anything in exchange for his cooperation and that, while the
investigator had offered to write a letter to the prosecutor on his
behalf, to Lehr’s knowledge, the investigator had never done so.
Lehr testified further that no one had offered him anything in
exchange for his testimony and that his assistance in Appellant’s
case was never mentioned in the course of his plea negotiations.
This testimony was supported by the certified copy of Lehr’s
conviction, which reflects that his probation on the aggravated
assault was not conditioned on his testimony in Appellant’s case. In
addition, in a colloquy during Lehr’s testimony at trial, the
prosecutor denied the existence of any agreement. See Sherman v.
City of Atlanta, 293 Ga. 169, 174 (4) (744 SE2d 689) (2013) (unless
objected to by opposing counsel or the court, an attorney’s statement
in place will be accepted as true without further evidence or
confirmation). In light of this evidence, and in the absence of any
evidence to the contrary, Appellant’s assertion that the State made
a deal with Lehr amounts to nothing more than speculation. See
Brannon v. State, 298 Ga. 601, 605 (3) (a) (783 SE2d 642) (2016)
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(“[M]ere speculation is insufficient to substantiate [a] claim that the
State withheld exculpatory evidence[.]”). Accordingly, Appellant’s
claim in this regard fails.
Judgment affirmed. All the Justices concur.
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