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Final Copy 290 Ga. 6 S11A1330. GIBSON v. THE STATE.

THOMPSON, Justice. Appellant Charles Gibson was convicted of malice murder and other crimes arising out of the shooting death of his wife, Jamie Gibson.1 He appeals from the denial of his motion for new trial. Finding no error, we affirm. 1. Viewed in the light most favorable to the verdict, the jury was authorized to find that in the early morning hours of January 6, 2004, appellant made several telephone calls to James Gillespie, an individual he believed was

The crimes occurred on January 6, 2004. On March 12, 2004, appellant was indicted by a Fulton County grand jury for malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of the crime of possession of a firearm by a convicted felon, aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. After a jury trial on February 22-28, 2008, appellant was found guilty of all charges. On February 29, 2008, the trial court sentenced appellant to life imprisonment for malice murder, a consecutive five-year term of imprisonment for possession of a firearm by a convicted felon, and a consecutive five-year term of imprisonment for possession of a firearm during the commission of a felony. The felony murder count based on possession of a firearm was dead-docketed. The remaining felony murder and aggravated assault convictions were merged and vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). A motion for new trial was filed on March 11, 2008, and amended on March 26, 2010. The motion was denied on November 5, 2010. Appellant filed a notice of appeal on November 30, 2010. The appeal was docketed in this Court for the September 2011 term and orally argued on September 19, 2011.

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involved in a relationship with his wife. Gillespie ignored several of appellant's calls and after answering the last call, heard appellant say "I told you to quit messing with my wife," followed by five successive gunshots. Appellant then stated, "I just killed her. I just killed the b____ and I'm coming for your throat." Gillespie hung up and called Jamie's mother, who called police and asked them to go to Jamie's apartment to check on her. Police found Jamie dead on her couch. We find the evidence was sufficient to allow any rational jury to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Appellant contends the trial court erred by denying his pretrial motion to suppress evidence of the murder weapon and photographs of the crime scene because there were no exigent circumstances authorizing a warrantless search. Upon tender of this evidence at trial, however, appellant's counsel stated he had "no objection" to the admission of this evidence, thereby waiving any objection he may have had. See Monroe v. State, 272 Ga. 201 (6) (528 SE2d 504) (2000). Even if objection had been made, however, we agree with the trial court's 2

determination that the search was authorized due to the exigent circumstances. The victim's mother called police and informed them of her concern for her daughter's welfare because appellant, while talking to Gillespie, fired a gun numerous times and announced he killed the victim. When officers arrived at appellant's residence to conduct the welfare check, they noticed damage to the door jam, announced themselves as police officers, and knocked on the door, which, they discovered, was ajar. The officer's knock caused the door to open slightly, allowing them to see the victim lying motionless on the couch. They called out to her, and after she failed to respond to their calls, officers were authorized to proceed into the residence immediately to come to her aid. See Mincey v. Arizona, 437 U. S. 385, 392-393 (98 SC 2408, 57 LE2d 290) (1978) (right of police to respond to emergency situations beyond question); Perkins v. State, 269 Ga. 791 (3) (505 SE2d 16) (1998) (entry without warrant and seizure of items in plain view were permissible under either the consent or exigent circumstances exceptions since defendant's wife reported a stabbing, asked the police to enter the apartment, and gave them a key); Gilreath v. State, 247 Ga. 814, 819-820 (279 SE2d 650) (1981) (Fourth Amendment does not bar warrantless entries and searches when person within needs immediate aid or 3

police come upon scene of homicide). Based on this evidence, the trial court did not err by concluding the search was justified and the challenged evidence was admissible at trial. 3. Teresa Melton, a friend and co-worker of the victim, testified that one week prior to the crimes the victim told her she intended to divorce appellant. She also testified about statements the victim made regarding appellant's abusive behavior, including an instance during which appellant bleached her clothes while holding a gun to her head. The trial court admitted the victim's out-of-court statements to Melton under the necessity exception to the hearsay rule. See OCGA

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