Walsh v. State , 269 Ga. 427 ( 1998 )

Sears, Justice,

dissenting.

Having carefully reviewed the record in this case, I am compelled to conclude (and I do so reluctantly) that the admissible facts cannot, under the law of this State, support Walsh’s convictions for felony murder and theft by taking. In reaching this conclusion, I acknowledge that the hearsay statement of Ronnie Jack Beasley, discussed at p. 428 of the majority opinion, may be construed as some evidence of Walsh’s guilt. However, as the majority correctly holds, Beasley’s statement is inadmissible hearsay, and therefore cannot be considered by this Court in evaluating the sufficiency of the evidence to support Walsh’s convictions.⁵ Moreover, considering the facts of record other than Beasley’s statement in light of the appropriate standard of review⁶ leads to but one conclusion: That the State did not present adequate evidence to convict Walsh beyond a reasonable doubt.

The majority opinion relies exclusively on Walsh’s statement to the police to conclude that he was a party to the crimes in question. An examination of Walsh’s statement, however, reveals that it is insufficient to support his convictions on the theory that he was a party to the crimes. In his statement, Walsh admitted being present at the crime scene, but he stated that he did not directly participate in the actual murder and armed robbery of the victim or in the theft of the victim’s car. Moreover, he never stated that he encouraged or aided another person to commit the crimes. In fact, the strongest inference that can be drawn from Walsh’s statement is that he did not encourage or aid anyone in the murder and armed robbery of the victim or in the theft of the victim’s automobile. Supporting such an inference are Walsh’s statements that he thought Beasley and Crosby were “just blowing hot air” about their plans for the victim, but that, as Beasley’s and Crosby’s talk continued, Walsh “started to get worried.” Such statements are not indicative of someone actively participating in, encouraging, or aiding criminal activity. In addition, the State offered no physical, forensic, or testimonial evidence that was inconsistent with Walsh’s statement that he did not directly participate in the murder and robbery of the victim, or with the inference that can be drawn from Walsh’s testimony that he did not encourage or aid anyone in committing the crimes in question. In this regard, although Walsh stated that he rode in the victim’s truck after the crimes, with Ronnie Beasley driving, and although he stated that they stopped to buy gas and beer, the evidence does not demonstrate that Walsh was given any of the money that was stolen from the victim. Nor does the evidence demonstrate that he partook of the proceeds of the crime other than indirectly by benefiting from the gas and beer that was bought (there was no direct evidence that the victim’s money was used to buy the gas and beer, but an inference to that effect can be drawn). Regarding this activity, it is also important to remember that it is consistent with Walsh’s testimony, and the inferences that can be drawn from it, that he did not directly participate in the crimes, or encourage or aid others in committing the crimes. For these reasons, Walsh’s statement presents a reasonable hypothesis that he did not directly participate in the crimes, and that he did not encourage or aid anyone else in committing them.

Because the majority affirms Walsh’s conviction on the ground he was a party to the crimes, and because only circumstantial evidence supports that theory,⁷ Georgia law requires the State to exclude every reasonable hypothesis except that of Walsh’s guilt. Because there is a reasonable hypothesis that Walsh was not a party to the crimes, Walsh’s convictions must be reversed. Moreover, even if it can be said that there was some direct evidence that Walsh was a party to the crimes, that does not negate the fact that there is a reasonable hypothesis that Walsh was not a party to the crimes. As former Chief Justice Hunt noted, even with direct evidence, if a reasonable hypothesis exists that the defendant did not commit the crimes in question, the State has failed to carry its burden to prove the defendant guilty beyond a reasonable doubt.⁸

Decided May 11, 1998. Sarah M. Tipton-Downie, for appellant. Richard A. Malone, District Attorney, Thurhert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jayson Phillips, Assistant Attorney General, for appellee.

In affirming Walsh’s convictions, the majority has overlooked the foregoing shortcomings with the State’s evidence. From evidence (Walsh’s statement) that establishes a neutral or negative proposition — that Walsh was present and did nothing to stop the crimes —, the majority draws the weak positive inference that Walsh actively participated in the crimes or actively encouraged or aided others in committing the crimes. The majority goes so far as to conclude that Walsh’s statement amounts to an “acknowledgment of all the essential elements of his guilt as a party to the underlying felonies of armed robbery and the theft by taking of the victim’s truck.” This is simply an incorrect representation of Walsh’s statement; Walsh did not make such an acknowledgment. Moreover, even if credence is given to the majority’s reasoning, it does not negate the fact that the evidence supports the equally reasonable, if not more reasonable, hypothesis that Walsh did not directly participate in the crimes or encourage or aid others in committing the crimes.

Because the record in this case simply does not support the majority’s holding that the evidence is sufficient to support Walsh’s convictions for felony murder and for theft by taking of the victim’s motor vehicle, and because “[t]he constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless,”⁹1 am compelled to dissent.

I am authorized to state that Presiding Justice Fletcher joins in this dissent.

5 Majority opinion, p. 428.

6 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

7 The Suggested Pattern Jury Instructions, Vol. 2, p. 11, defines circumstantial evidence as follows:

Evidence may also be used to prove a fact by inference. And this is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.

Accord Terrell v. State, 258 Ga. 722, 724, n. 2 (373 SE2d 751) (1988). There is no direct evidence that Walsh directly committed the murder, armed robbery, or theft of the motor vehicle. Moreover, there is no direct evidence that Walsh encouraged or aided others in committing those crimes. The facts that connect Walsh to the crimes must be inferred from the direct evidence that was introduced by way of Walsh’s statement that he was present at the crime scene, and did nothing to stop the crimes in question.

8 Mims v. State, 264 Ga. 271, 273-274 (443 SE2d 845) (1994) (Hunt, C. J., concurring).

9 Jackson v. Virginia, 443 U. S. at 323.