ALLABEN v. THE STATE
S16A0166
Supreme Court of Georgia
JUNE 20, 2016
299 Ga. 253 | 787 SE2d 711
HUNSTEIN, Justice.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for appellee.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for appellee.
S16A0166. ALLABEN v. THE STATE.
(787 SE2d 711)
On retrial following a reversal of his original convictions, see Allaben v. State, 294 Ga. 315 (751 SE2d 802) (2013) (“Allaben I“),1
Viewed in a light most favorable to the jury‘s verdict, the evidence at trial established as follows. In January 2010, Appellant killed his wife. Thereafter, he wrapped her body in a packing blanket and placed it in the bed of his pickup truck; he then used that truck to transport his children to Virginia, the home state of his brother and sister-in-law. During the trip, Appellant admitted to his children and later his sister-in-law that he had killed his wife. According to Appellant‘s sister-in-law, Appellant admitted that “he had a cloth with ether on it, [which] he put . . . over [the victim‘s] mouth, and the cloth went too far down her throat and choked [her].” The sister-in-law further testified that Appellant stated that he used the ether “so [the victim] could go to sleep” because he just “wanted to talk to her.”
After dropping off his children in Virginia, Appellant returned to Georgia and proceeded to the home of Jon Kevin Crane. Once there, Appellant stated that he needed an attorney, admitted that his wife was dead in the bed of his truck, and, eventually, surrendered to authorities. The victim‘s body, clothed only in a t-shirt and underwear, was found frozen in the bed of Appellant‘s truck.
An autopsy revealed that the victim was legally intoxicated, that she had a higher-than-therapeutic level of Benadryl in her system at the time of death, and that ether, an anesthetic, was also found in her system. According to the medical examiner, the victim‘s chin and neck area evidenced signs of injury, and the victim‘s face showed innumerable petechial hemorrhages, indicating that the blood flow from the head was interrupted. There was no evidence that she had choked on a foreign object, such as a rag. Further, though the victim bore obvious signs of strangulation, the medical examiner testified that there were no signs of a struggle — i.e., none of the victim‘s nails were broken, she had no scratches on her throat, and she had no skin under her nails. Based on the foregoing, the medical examiner opined that the victim was possibly incapacitated prior to her death.
The medical examiner concluded that the victim was strangled to death using a “carotid sleeper hold.” While the precise medical basis for the victim‘s death could have been caused by either jugular vein occlusion or the over stimulation of baroreceptors in the carotid artery — or some combination thereof — the medical examiner testified that the exact mechanism of the victim‘s death was immaterial to his conclusion that she was strangled. He also agreed that death is an expected consequence of strangulation.
1. Appellant contends that the evidence presented at trial was insufficient to support his conviction. Relying on testimony from the medical examiner that a sleeper hold, generally speaking, is unlikely to cause death, Appellant argues that the State failed to exclude all reasonable hypotheses except that of his guilt, namely, that he used the sleeper hold only to subdue the victim and did not intend to kill her. This argument is without merit.
As an initial matter, appellate court decisions in this State suggest that the prosecution is only required to exclude all reasonable hypotheses except that of guilt where its case is based exclusively on circumstantial
reasonable hypothesis.“).3 See also Saine v. State, 170 Ga. App. 610, 611 (1) (317 SE2d 650) (1984) (“[T]he strictures of [former
questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).
While the jury heard testimony from the medical examiner that a sleeper hold does not usually result in death, the medical examiner was unequivocal that the use of a sleeper hold on an individual may — and in this case did — result in death. The mere fact that the jury heard testimony that a sleeper hold does not usually result in death did not prevent the jury from concluding that Appellant utilized this maneuver with intent to effectuate his wife‘s death. Moreover, the jury heard evidence that the victim: was only partially clothed; showed no signs of having defended herself; and was affected by substances that could have rendered her incapacitated prior to her death. The jury also heard testimony that Appellant utilized a sleeper hold long enough to kill the victim and leave innumerable hemorrhages on her face.
Accordingly, the evidence was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. During the State‘s case-in-chief, Crane testified on direct examination concerning various portions of his extensive post-incident conversation with Appellant. Namely, Crane testified that Appellant unexpectedly arrived at his house in the early morning hours of
January 5, 2010, and claimed to need an attorney because he had his dead wife in the bed of his truck. During cross-examination, however, the trial court prohibited the defense from eliciting testimony from Crane that, during this lengthy conversation, Appellant stated that his wife had been unfaithful and “that he didn‘t mean for [her death] to happen, that he loved her so much and [her death] was not what he wanted.” Appellant argues on appeal, as he did below, that this testimony was admissible under the rule of completeness. We agree.
“When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence.”
[w]here a part of a conversation, which amounts to an incriminatory admission, is
admitted in evidence, it is the right of the accused to bring out other portions of the same conversation, even though it is self-serving in its nature, or exculpatory, in that it justifies, excuses, or mitigates the act.
Id. However,
The trial court concluded that the excluded portion of Crane‘s conversation with Appellant “was not necessary to explain” Crane‘s testimony on direct examination. This conclusion is problematic for two reasons. First, the trial court‘s ruling was based largely on the narrow testimony elicited by the State on direct examination, rather than the substance of Crane‘s entire conversation with Appellant.5
Second, the State‘s examination of Crane was not particularly narrow; in fact, the State broadly asked Crane whether “Appellant sa[id] anything about Maureen, his wife,” and questioned Crane at length about his conversation with Appellant.
The defense‘s proffer of Crane‘s expected testimony demonstrates that the remainder of the conversation between the two men was, in fact, relevant to both Crane‘s direct testimony and the charges for which Appellant was on trial. Specifically, it explained both the impetus for Appellant‘s actions toward his wife as well as his intent at the time of the incident. See
3. Though we have reversed Appellant‘s murder conviction, there are a number of remaining enumerations of error that are likely to occur on retrial; therefore, we will address them.
(a) Appellant contends that the trial court erred by refusing to instruct the jury on simple battery, see
“A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” (Citation and punctuation omitted.) Rogers v. State, 289 Ga. 675, 677 (2) (715 SE2d 68) (2011). The crime of simple battery is accomplished when an individual “[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another” or “[i]ntentionally causes physical harm to another.”
[a] person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the
safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.
(b) Appellant also contends that the trial court erred in failing to instruct the jury on simple assault, see
Simple assault is accomplished when an individual “[a]ttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”
(c) Appellant also contends that the trial court erred when it refused to instruct the jury on involuntary manslaughter on the grounds that he was previously acquitted of that offense in his first trial. We agree.
“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”
to a subsequent prosecution for the same offense.“). Double jeopardy protections, however, may be waived. See United States v. Williams, 527 F3d 1235, 1239 (II) (A) (11th Cir. 2008). See also Hooks v. State, 138 Ga. App. 539, 540 (3) (226 SE2d 765) (1976) (“A plea of former jeopardy is a personal privilege and may be waived.“). Here, Appellant affirmatively waived his right to claim former jeopardy and, thus, the trial court erred when it concluded that double jeopardy barred involuntary manslaughter as a lesser included offense in Appellant‘s second trial. Further, the evidence as discussed above was sufficient to authorize the jury to consider involuntary manslaughter as a lesser included offense. See
(d) Appellant asserts that the trial court erred in failing to instruct the jury on a definition of the term “abandoned and malignant heart.” See
Malice can be implied from reckless disregard for human life. To imply the malice element of malice murder, you must find extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another.
We find no error.
“In reviewing a challenge to the trial court‘s jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case.” (Citation omitted.) Shivers v. State, 286 Ga. 422, 423 (2) (688 SE2d 622) (2010). “A trial court‘s refusal to give a jury charge in the exact language requested by a defendant is not error if the charge given by the trial court substantially covers the applicable principles of law.” Keita v. State, 285 Ga. 767, 771 (4) (684 SE2d 233) (2009). While the
(e) Appellant faults the trial court for failing to instruct the jury on a definition of the word “likely” as used in
(f) Finally, Appellant contends that the trial court erroneously admitted two post-incision autopsy photos even though the medical examiner stated that either photo would “sufficiently” explain the victim‘s injury. This argument is without merit.
While the medical examiner stated that either photo would be “sufficient” to explain the victim‘s injuries to the jury, he also explained that the two photos provided different perspectives of the injury. As the medical examiner testified at trial, one photo provided an “overview” of the anatomical structure at issue, while the other, which is a close up, details injuries discovered during the autopsy. The medical examiner utilized both photos to discuss the nature of the victim‘s injuries, which were the subject of intense and lengthy questioning by both parties. Consequently, the photos were relevant under
For the foregoing reasons, Appellant‘s conviction for malice murder is reversed, and this case is remanded for proceedings consistent with this opinion.
Judgment reversed and case remanded. All the Justices concur.
DECIDED JUNE 20, 2016.
Gerard B. Kleinrock, for appellant.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.