Wagner pleads guilty, gets life sentence in husband's killing

By Amy Leigh Womack - Macon.com

March 17, 2010

The trial for a woman accused of killing and dismembering her husband in 2005 ended abruptly Tuesday when the woman pleaded guilty to murder and concealing a death.

Crystal Mae Wagner, 29, was sentenced to life in prison in accordance with a recommendation from the prosecution and her attorneys.

Wagner’s attorneys struck a plea deal with prosecutors Tuesday morning just as the second day of her trial was scheduled to begin. In exchange for her plea, the prosecution dismissed a theft by taking charge pending against Wagner.

Wagner cried quietly during the plea hearing, but did not speak in her own defense prior to the judge imposing a sentence.

Prosecutor Elizabeth Bobbitt said she received a letter Monday afternoon that Wagner wrote to her boyfriend and co-defendant, 29-year-old Shay Alan Morey. In the letter, Wagner wrote in 2005 about the couple planning and carrying out the murder of her husband, Bobby Gene Wagner.

Franklin J. Hogue, one of Crystal Wagner’s lawyers, said Wagner was ready to discuss a plea deal with the prosecution Tuesday morning even before the prosecution told the defense about the letter.

“Hearing (the testimony) in the courtroom can have a powerful effect on one’s view,” Hogue said.

By pleading guilty with a joint recommendation for sentencing, Wagner avoided a sentence of life without parole, Hogue said.

She faced the death penalty before a February hearing, but prosecutors dropped it in exchange for Wagner waiving her right to a jury trial. At trial, Chief Bibb County Superior Court Judge Martha Christian would have decided Wagner’s fate.

Wagner’s family and friends sat on both sides of the courtroom Tuesday.

Marsha Mathews, Wagner’s aunt, said she was scheduled to testify in her niece’s defense — not because she thinks Wagner is innocent, but to explain why she might have participated in a plan to kill her husband.

“I feel she felt trapped over the years,” said Mathews after the trial.

During the plea hearing, Frank Hogue told the judge that Wagner was abused as a child. The abuse ranged from emotional abuse that left her feeling unwanted and afraid of abandonment to her being locked in her room for days. Hogue also stated that Wagner’s parents were brother and sister.

In opening statements held Monday, prosecutor Elizabeth Bobbitt said Wagner asked Morey to kill her husband so she and Morey could be together. At the time of the killing, Bobby and Crystal Wagner were living with their son and Morey in a motel near Thomaston Road and Interstate 475.

Hogue said Crystal Wagner and Morey met about a year before the killing during a time when Wagner and her husband were separated. She later reunited with her husband, but later was again in a relationship with Morey and they lived together.

At the time of the killing, Bobby Wagner was under the impression that Morey was living in the motel room with the couple and their young son to help his wife, Hogue said.

Wagner suffers from a physical deformity caused by juvenile rheumatoid arthritis, her other attorney, Laura D. Hogue, said Monday.

Bobby Wagner and Morey were friends. In the days prior to the killing, Bobby Wagner tried to get Morey a job at the towing company where he worked, Hogue said.

On Feb. 10, 2005, Bobby Wagner was in the shower when Morey struck him repeatedly on the head. The blows weren’t fatal and Bobby Wagner returned to the bathroom followed by his wife. Crystal Wagner came out and told Morey that her husband was calling the police. Morey went back into the bathroom, where he stabbed Bobby Wagner in the heart, Bobbitt said.

Morey dismembered Wagner’s body after discovering he couldn’t move him, Bobbitt said.

A sheriff’s office crime scene investigator testified Monday that authorities found rope in the motel room and two concrete blocks in the Wagners’ car. Bobbitt said Crystal Wagner and Morey had planned to tie Bobby Wagner to the blocks and dispose of him in a body of water.

Authorities found Bobby Wagner’s remains four days after the killing behind an abandoned house in Twiggs County, testified Lee Weatherby, a GBI crime scene specialist. Wagner’s body was covered by a pile of aluminum hubcaps and cast-iron sinks.

Morey pleaded guilty in 2006 to killing and dismembering Wagner. He was sentenced to life in prison without parole.

Mathews said Bobby and Crystal Wagner’s young son is being raised by Crystal Wagner’s mother.

Woman: Boyfriend acted alone in Bibb killing, dismemberment

By Amy Leigh Womack - Macon.com

March 16, 2010

Defense attorneys contend that a woman charged with killing her husband in Bibb County in 2005 didn’t ask her boyfriend to do the killing — or help him dismember the body.

Crystal Mae Wagner, 29, is charged with murder in the death of her husband, Bobby Gene Wagner. She faced the death penalty before a February hearing, but prosecutors dropped it in exchange for Wagner’s waiving her right to a jury trial.

Laura Hogue, one of Wagner’s defense attorneys, said in opening statements Monday that Wagner’s boyfriend, 29-year-old Shay Alan Morey, acted alone in killing Bobby Wagner.

She said Morey acted in a fit of jealousy and rage. Crystal Wagner didn’t ask Morey to kill her husband, Hogue said.

“That would ruin the thrill,” she said.

Crystal Wagner has a physical deformity from juvenile rheumatoid arthritis, and she is mentally crippled by the feeling that men won’t find her desirable except as “a piece of meat.” She needed the attention of men arguing and fighting over her, Hogue said.

But prosecutor Elizabeth Bobbitt contends that Crystal Wagner asked Morey to kill her husband so that she and Morey could be together. At the time of the killing, Bobby and Crystal Wagner were living with their son and Morey in a hotel located near Thomaston Road and Interstate 475.

Bobbitt said Crystal Wagner and Morey discussed the idea of killing Bobby Wagner for a few days before Morey agreed and the two formulated a plan.

Bibb County sheriff’s Capt. Dennis Hagerman testified that deputies recovered rope and cords from the hotel room after the killing. Deputies also found two cinder blocks in the Wagners’ car.

Bobbitt said Crystal Wagner and Morey planned to use the rope and cinder blocks to help them dispose of Bobby Wagner in a body of water after the killing.

Their plan, Bobbitt said, was that Crystal Wagner would lure her husband into the bathroom, telling him that they were attending a birthday party and he needed to get ready. Morey then would kill Bobby Wagner, she said.

On Feb. 10, 2005, Bobby Wagner was in the shower when Morey struck him repeatedly on the head. Although the blows caused cuts and bleeding, Wagner survived and went back into the hotel room. He asked Crystal Wagner to call an ambulance and told Morey to leave, Bobbitt said.

Bobby Wagner returned to the bathroom followed by his wife. Crystal Wagner came out and told Morey that Bobby Wagner was calling the police. Morey went back into the bathroom, where he stabbed Bobby Wagner in the heart, Bobbitt said.

Morey dismembered the body after discovering that he couldn’t move Bobby Wagner, she told the judge.

Grisly discovery

Four days later, authorities found Bobby Wagner’s remains behind an abandoned house in Twiggs County, said Lee Weatherby, a GBI crime scene specialist. Wagner’s body was covered by a pile of aluminum hubcaps and cast-iron sinks.

Wagner’s face was badly burned, but authorities found his wallet, a letter addressed to him and pay stubs. Blood-stained towels and the weapons used to dismember Wagner also were there, Weatherby said.

Wagner’s cell phone also was recovered. His last outgoing call was placed just before 9 p.m. Feb. 10 to the Bibb County sheriff’s office, Weatherby said.

His co-workers testified Monday that he had expressed fear that his wife might try to kill him in the weeks preceding his death.

Robert Allen “Bobby” Wagner, manager of Heart of Georgia Towing Co., said Bobby Wagner seldom talked about his personal life, but he confided in his boss about his fears. He also asked to work on his days off so he wouldn’t be at home.

“He was very nervous,” Robert Wagner testified. “You could tell it was really bothering him.”

Lori Jones, a former office manager at the towing company, said Bobby Wagner told her he’d considered leaving his wife, but he was concerned about their son.

When Bobby Wagner didn’t show up at work Feb. 11, Robert Wagner, who is not related to the deceased, tried to call him on the phone and the company radio multiple times before he drove to Wagner’s hotel room and knocked on the door. Although the Wagners’ car was outside, no one answered the door.

Robert Wagner returned Saturday, and Morey answered when he knocked on the door. Crystal Wagner and the Wagners’ son also were there, he said.

“It looked like they just got up,” he said.

Morey and Crystal Wagner said Bobby Wagner had gone to Florida, Robert Wagner testified. “That room was in a total mess,” he said. “The odor was so bad I could hardly go in.”

Crystal Wagner initially told authorities that she slept through the period when her husband was killed after she took a sleeping potion. Later, however, she said she didn’t take the potion, Bobbitt said.

Wagner told authorities that Morey killed her husband and she didn’t turn him in for fear he’d kill her young son, Bobbitt said.

Morey pleaded guilty in 2006 to killing and dismembering Bobby Wagner. He was sentenced to life in prison without parole. He has alleged that Crystal Wagner was involved in “virtually every stage of the crime.”

  

Death penalty sought in dismemberment killing

Accessnorthga.com

May 3, 2005

Authorities will seek the death penalty against a couple accused of killing and dismembering a Bibb County man.

Bibb County District Attorney Howard Simms made the death penalty announcement Tuesday when 24-year-olds Crystal Mae Wagner and Shay Allen Morey were indicted by a grand jury on charges of malice murder, felony murder, concealment of a death, and theft by taking for allegedly killing the woman's ex-husband.

Morey and Wagner were arrested Feb. 15 after Bobby Gene Wagner was stabbed in the chest, then hacked up in a bathtub, hauled to Twiggs County and dumped in the woods, investigators said.

The three of them had been living at the Travel Inn near Interstate 475 for some time before his death.

Crystal Wagner told investigators she waited roughly 30 minutes in a car while Morey purchased the mallet, hacksaw and hatchet used to cut Wagner's body to pieces in the motel room bathtub, Lt. Aubrey Evins said at a February court hearing.

The couple then allegedly drove Carver's car to rural Twiggs County and dumped the body, the knife and the tools. These were found Feb. 15 in the woods off Ga. 18.

  

Body found dismembered in Twiggs Co

By Jason Hobb - Courier-Herald.com

February 15, 2005

JEFFERSONVILLE — A Twiggs county man made a gruesome discovery when he found the dismembered and partially burned body of a Bibb County man Sunday as he was walking on a piece of property that he frequently visited on Ga. Hwy. 18 just north of Jeffersonville.

The dismembered and partially burned body of 32 year-old Bobby Gene Wagner was found behind an abandoned home on Ga. Hwy. 18 just north of Jeffersonville when an unidentified man was walking around a piece of property near the abandoned home where he frequently went to scavenge spare parts from some junk cars which were left there.

Sheriff Darren Mitchum said the scene continued to bother the Twiggs man because “it just didn’t look right” so he called Jeffersonville Police Chief Lawson Burnett Monday morning.

According to Mitchum, when Burnett went to investigate what the man had found, he immediately called him and he in turn called Twiggs County Coroner Harold Reece Jr. and the Georgia Bureau of Investigations.

Mitchum said there was enough evidence at the scene that they were able to identify Wagner on the spot and through further investigation they found that Wagner lived in a south Macon motel. The trail also lead to Wagner’s 24- year-old ex-wife Crystal May Carver and 24 year-old Shay Allen Morey, who worked with Wagner at Heart of Georgia Towing on Emory Highway in Macon. Carver and Morey also lived in a separate room at the same motel as Wagner.

Wagner was killed at the motel where the three were living and dismembered in a bathtub there, said Mitchum adding that Wagner’s dismembered body had then been transported to Twiggs County where an attempt to burn the body was made. However, Mitchum said they were not very successful, so an attempt was then made to conceal the body using some sinks that were also on the property.

“This shows again how networking with other agencies can help you quickly solve cases,” said Mitchum. “Our coroner, Harold Reece, did an excellent job at the crime scene as did the GBI’s Crime Scene Investigation Team and I would like to thank both the people from our Coroner’s office and from the GBI for their assistance on this case.”

Morey, who has given a statement to officials, and Carver have both been charged with murder and are being held in Bibb County. Mitchum said that the pair will also be charged with concealing a body in Twiggs County

  

Supreme Court of Georgia

Franklin James Hogue, Laura D. Hogue, Hogue & Hogue, Macon, for Appellant.Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Elizabeth A. Burton, Asst. Atty. Gen., Howard Zachary Simms, Dist. Atty., for Appellee.

Crystal Mae Wagner has been indicted for murder, felony murder, and concealment of a death.¹  The crimes allegedly occurred on February 10, 2005.   The State has given notice of its intent to seek the death penalty.   This Court granted Wagner's application for interim review and directed the parties to address five issues.   Wagner has raised two additional issues.   As set forth below, we reverse the trial court's overruling a demurrer to Count 2 of the indictment, affirm with direction as to Counts 1 and 3, and affirm as to all other issues raised.

1. Count 2 of Wagner's indictment attempts to charge felony murder, but it includes the phrase, “intentionally and with malice aforethought,” which obviously should appear in a malice murder charge, not a felony murder charge.   See OCGA § 16-5-1.   The State could have charged malice and felony murder in the alternative in the same count.   See Leutner v. State, 235 Ga. 77, 79(2), 218 S.E.2d 820 (1975).   However, the charge at issue here mixed those elements rather than charging them in the alternative.

In Bailey v. State, 280 Ga. 884, 635 S.E.2d 137 (2006), we found no error in the trial court's denial of a motion to quash an indictment because “the misspelling of the grand juror's name was not a material defect and because it is obvious that Bailey will not suffer prejudice from the error.”  Id. at 885, 635 S.E.2d 137.   In so holding, we relied on prior case law in which this Court affirmed on pre-trial appeal a trial court's refusal to quash an indictment containing the misspelling of an illegal drug because the indictment, even with the misspelling, “remained ‘sufficient to put appellant on notice of the alleged offense.’  [Cit.]” Id. at 884-885, 635 S.E.2d 137.   We also reiterated that a trial judge, in response to a special demurrer, should “strike out the erroneous portion of an indictment where the matter stricken is ‘immaterial.’  [Cit.]” Id. at 884, 635 S.E.2d 137.   Thus, we distinguished our prior case law describing the right to a “perfect” indictment upon the filing of a special demurrer.  Id. at 884, 635 S.E.2d 137.

Consistent with Bailey, supra, we hold that where a special demurrer points out an immaterial defect, the trial court should strike out or otherwise correct the immaterial defect.   Where a special demurrer points out a material defect, the trial court must quash the defective count of the indictment.   However, in Bailey, in affirming the denial of the motion to quash the indictment, we held that a trial court does not err by denying a special demurrer “where the defect in an indictment is not material and does not prejudice the defendant's rights.”  (Footnote omitted.)  Id. at 885, 635 S.E.2d 137.   While often the questions of materiality and prejudice may be coextensive, harmless error review is appropriate only in the post-conviction setting, not in pre-trial proceedings or on pre-trial appeal.   Thus, to the extent that Bailey can be construed to hold that a material defect that is not prejudicial to the defendant does not require the quashing of a defective count of an indictment, it is disapproved.

Because we find that the mixing of the elements of malice murder and felony murder constitutes a material defect, we order Count 2 of Wagner's indictment quashed.

2. The malice murder charge in Count 1 of Wagner's indictment names the murder victim but fails to state that the victim was a “human being.”   This Court has previously held in several post-conviction appeals that an indictment that names a murder victim but fails to allege that the victim was a human being is sufficient.  Alexander v. Luzier, 229 Ga. 434(1), 192 S.E.2d 160 (1972) (habeas corpus);  Green v. State, 172 Ga. 635(2), 158 S.E. 285 (1931) (direct appeal);  Sutherland v. State, 121 Ga. 591(1), 49 S.E. 781 (1905) (appeal of denied motion in arrest of judgment).   We now hold, in this pre-trial appeal, that the failure of a count of an indictment to state that a specifically-named victim was a human being is not a material defect.   Thus, for the reasons set forth in Division 1, we hold that the trial court did not err by refusing to quash the malice murder count in Wagner's indictment;  however, we direct the trial court to correct the indictment in light of our discussion above.

3. Wagner complains that Count 3 of her indictment names the crime of “Concealment of a Death” and properly charges the elements of that offense, but that it lists the incorrect Code section.   Because the naming of the Code section is mere surplusage, the misnaming of the Code section is not a material defect.   See State v. Eubanks, 239 Ga. 483, 490-491, 238 S.E.2d 38 (1977).   Thus, in light of our discussion in Division 1, we hold that the trial court did not err by refusing to quash Count 3 of Wagner's indictment, but should strike the incorrect Code section from the indictment.

4. Wagner argues that the trial court erred by denying her motion to have challenges for cause heard outside the jurors' presence.   Some matters raised by counsel during voir dire are better addressed outside the presence of the jurors.   See Holmes v. State, 273 Ga. 644(2), 543 S.E.2d 688 (2001) (approving practice of remedying Batson violations by reseating jurors who remain unaware of party who struck them);  Armour v. State, 188 Ga.App. 855, 856, 374 S.E.2d 794 (1988) (when defense believes State's voir dire is improper, “proper procedure” is to raise matter “outside the presence of prospective jurors”).   However, “[t]he trial court has a discretion to control voir dire,” Jones v. State, 263 Ga. 904, 907(9)(b), 440 S.E.2d 161 (1994), and we find no reversible error in the trial court's denial of Wagner's request to have all challenges for cause heard outside the jurors' presence.

5. Wagner argues that the trial court erred by refusing to compel the District Attorney to testify about his decisions to seek the death penalty in Wagner's case and other cases.   She argues that the District Attorney's testimony potentially could show that his decisions were arbitrary and capricious.   Although a defendant bears the burden to prove any allegedly-unconstitutional conduct by a prosecutor in electing to seek a death sentence, see Jenkins v. State, 269 Ga. 282(2), 498 S.E.2d 502 (1998), the manner in which that burden is carried must be consistent with the law and public policy considerations.   A prosecutor's discretion in seeking a death sentence is limited by statute.   See OCGA § 17-10-30.   The prosecutor's discretion is also “limited by the jury's ultimate decision” and the “strength of the evidence” in any given case.  Jenkins, supra, 269 Ga. at 285(2), 498 S.E.2d 502.   However,

[t]his Court has repeatedly rejected challenges to the legislature's determination that district attorneys should have the discretion to decide whether a murder defendant meets the statutory criteria for the death penalty and whether to pursue the death penalty when a defendant is eligible.

(Footnote omitted.)  Terrell v. State, 276 Ga. 34, 42(5), 572 S.E.2d 595 (2002).   Policy considerations demand that prosecutors generally should not be forced to testify in rebuttal to accusations that they have abused their discretion unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his or her case.   See McCleskey v. Kemp, 481 U.S. 279, 297 n. 18(II)(A), 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).   In this case,

absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the [prosecutor's] decision is apparent from the record:  [Wagner allegedly] committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.

Id. at 296-297(II)(A), 107 S.Ct. 1756.   Therefore, we conclude that the trial court did not err by refusing to compel the District Attorney's testimony in Wagner's case.

6. Wagner complains that the State, in two of the statutory aggravating circumstances listed in its notice of intent to seek the death penalty, alleged that “[t]he offense of murder in this case was committed for the purpose of receiving money” rather than that “[t]he offender” committed the murder for the purpose of receiving money, as appears in OCGA § 17-10-30(b)(4).   Wagner makes a valid point, as it is conceivable that her co-defendant committed “the murder” for the purpose of receiving money but that Wagner's own participation in the murder was not for that purpose.   The State could simply re-notify Wagner regarding this statutory aggravating circumstance using the language of the Code. See Sears v. State, 270 Ga. 834(6)(a), 514 S.E.2d 426 (1999) (notice of additional aggravating circumstance during guilt/ innocence phase jury deliberations held permissible).   See also Walker v. State, 281 Ga. 157, 160(2), n. 10, 635 S.E.2d 740 (2006) (strongly urging prosecutors to include notice of specific statutory aggravating circumstances in notice of intent to seek the death penalty, or as soon thereafter as is possible).   However, because there is no reason to believe the trial court will fail to properly charge the jury and because Wagner has sufficient notice of what she will have to defend against, we conclude the trial court did not err by refusing Wagner's request to “dismiss” this statutory aggravating circumstance.

7. Wagner argues that there is a defect in the State's notice that it will seek the death penalty based on the OCGA § 17-10-30(b)(7) aggravating circumstance because that notice fails to state what aspects of the murder involved “depravity of mind.”   This Court has specified the types of evidence that may prove “depravity of mind,” and it has set out a specific charge on “depravity of mind” to be given upon a defendant's request.   See West v. State, 252 Ga. 156(2), 161-162 (Appendix), 313 S.E.2d 67 (1984).   As with the defective notice discussed above regarding the purpose of the murder being money, the correct use of the language of the Code regarding “depravity of mind” places Wagner on sufficient notice regarding what she should be prepared to defend against.   Accordingly, the trial court did not err by refusing to “dismiss” this statutory aggravating circumstance.   See Walker, supra, 281 Ga. at 160-161(2), 635 S.E.2d 740 (pretermitting question of whether notice of specific statutory aggravating circumstances is constitutionally required).

Judgment affirmed in part, affirmed in part with direction and reversed in part.

FOOTNOTES

1.  The trial court quashed Count 4 of Wagner's indictment, which charged her with theft by taking.   This Court did not grant the application for interim review to address this issue.

HUNSTEIN, Presiding Justice.

All the Justices concur.