Murder. Fulton Superior Court. Before Judge McBurney.
Dawn M. Belisle, for appellant.
Paul L. Howard, Jr. , District Attorney, Paige Reese Whitaker , Marc A. Mallon , Assistant District Attorneys, Samuel S. Olens , Attorney General, Patricia B. Attaway Burton , Deputy Attorney General, Paula K. Smith , Senior Assistant Attorney General, Rochelle W. Gordon , Assistant Attorney General, for appellee.
Hines, Presiding Justice.
Calvin Wiggins appeals the denial of his motion for new trial, as amended, and his convictions for felony murder while in the commission of aggravated assault and possession of a firearm during the commission of a felony in connection with the fatal shooting of Mahdi Thomas. Wiggins challenges the admission into evidence of statements by the victim as dying declarations and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.
The evidence construed in favor of the verdicts showed the following. On September 22, 2007, Wiggins, who was known as " Weedi," and Thomas robbed a local drug dealer at gunpoint, taking up to five pounds of marijuana and $7,000 in cash. Thomas left taking the marijuana and money with him, while Wiggins stayed behind, keeping a handgun on the drug dealer. After a few minutes, Wiggins left, taking the drug dealer's cell phone and car.
That evening Thomas was to meet Wiggins at a gas station in Fulton County. Wiggins was not happy with his share of the proceeds from the armed robbery. At approximately 10:00 p.m., Thomas was in the driver's seat of his vehicle, which was stopped at one of the [295 Ga. 685] station's gas pumps. Wiggins and another man were in the vehicle with Thomas; Wiggins was sitting in the front passenger seat next to Thomas, and the other man had gotten into the back seat of Thomas's car after exiting a car parked nearby. The front seat passenger shot Thomas, exited the vehicle, and again fired the handgun he was wielding at the then fleeing Thomas. The back seat passenger moved from the rear of Thomas's car and rummaged through the front seat area, emerging with the stolen marijuana and cash. The shooter and the back seat passenger entered the car parked nearby and " peeled off" toward the highway.
Thomas sustained severe injuries from multiple gunshot wounds, and was transported to a hospital where he died following three surgical procedures in an attempt to save his life.
1. Shortly after the first surgery, Thomas made two non-verbal statements -- one to his brother and another to his wife -- indicating that it was Wiggins who shot him. Wiggins
contends that the trial court erred in admitting evidence of the statements as an exception to hearsay testimony as the victim's dying declarations because the victim was not in the " article of death" at the time such statements were made.
Certainly, in order for a statement to be admissible as a dying declaration under former OCGA § 24-3-6, the deceased must have been conscious of his condition; however, " it need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement." Sanford v. State, 287 Ga. 351, 353 (2) (695 S.E.2d 579) (2010). The testimony which is introduced as a dying declaration does not have to contain any statement by the deceased to the effect that he is conscious of his impending death at the time the declaration is made; this may be inferred from the nature of the wounds and other circumstances.
[295 Ga. 686] The circumstances in this case demonstrate that Thomas was conscious of his dire condition at the time he made the non-verbal statements inculpating Wiggins as the shooter: Thomas prayed with his wife for forgiveness; Thomas's intestines were shot like " swiss cheese" ; he had a hole in his diaphragm; he had a gunshot wound that went through his liver; he had an injury to the vessel that drained his left kidney, causing it to die; he had holes in his colon and stomach; the first operation ended prematurely around 2:20 a.m. on September 23, 2007 because Thomas became very ill; his stomach was left open and his intestines were visible through clear plastic tape; he was tied to the bed and had a chest tube in place; although Thomas was on medication for pain, he was awake and alert after the first operation; and his mental status was evaluated as " 11T," meaning he was following commands and able to make motions. However, after a second operation on September 24, 2007, Thomas developed a serious infection that caused him to " swell up like a balloon" ; his exposed intestines turned from pink to jet ...