*1 THE STATE. BROWN v. S10A1315.
(703 SE2d Presiding Justice. CARLEY, Anthony guilty was found of trial, Demetrius Brown After a felony the commission murder of Veronica Norwood the to the second assault, criminal emergency telephone hindering person making degree, an call. and judgments of conviction and sentenced entered The trial court five-year imprisonment Appellant murder, for a consecutive to life hindering damage charge, for and months for the term emergency denied, and Brown call. A motion for new trial was appeals.* strongly support verdicts, most
1. Construed girlfriend, resided with that the victim was Brown’s evidence shows him in a rented mobile verbally physically and abused home, and was Rey- began residing with her friend Kerlanda him. The victim May home 25, 2003, the women went to mobile and, nolds on two belongings. cousin Antwan McBride retrieve the victim’s Brown’s and the had came to the mobile home. After Brown also argued causing her, time, for Brown struck her mouth to bleed. some through pushed door, her off the victim exited the front When got steps ground poured gasoline on her, and some which McBride and inside, him. Brown the victim back asked on followed lighter, paper hotplate, for a lit a towel on went Ms. victim, onto the master bathroom where he threw Reynolds attempted causing her to burst into flames. When hung phone up, 9-1-1, Brown snatched the from her hand and call neighbor causing flee to to call 9-1-1. her to began After McBride to drive Brown and the victim to the they deputy hospital, stopped and told to for an wait paramedics told that he and the victim were were ambulance. Brown get gasoline they mowing grass that, as and had to more cigarette entering it, and lit shower, he decided to smoke a up They hospital and in flames. were taken to the both went July eventually hospital. told airlifted to another On investigators leaving, swiped him that, as he was the victim with gasoline piece paper gasoline it, on became covered they struggled and, he into the over a can when went March filed on Brown filed the notice of judgments April [*] The February 2010 term and 2006. crimes occurred on of conviction and sentences on 10, 2009, orally argued appeal on found Brown amended on May 25, 2003, February 8, guilty January 22, 2010, July January on and the 2010. The case was docketed in this Court for January 27, grand jury 2009. and denied on 2009 and the trial court entered The motion for new trial was returned an indictment February 2010. on holding dropped a lit match bedroom, the victim was which she when may thought going that he to hit her. he drew back and she third-degree body, her who suffered burns over 90% of medically remained in a induced coma for several months and died just returning two weeks after home.
Brown contends that murder conviction must be reversed because the is insufficient to that he caused show *2 community- the victim’s death. that the died of acquired pneumonia gone and have if she had would survived hospital day directed, on the before her death as her doctor where patholo- she However, would have received antibiotics. the forensic gist autopsy who conducted the testified that the died as delayed injuries, problems, result of extensive thermal that her heart pneumonia, injuries, all death were related to those and that change consideration of refusal of antibiotics would not his opinion. pulmonary that, The victim’s doctor testified her because of edema, antibiotics would not made difference her chance recovery, respiratory insufficiency that she died of which was previous agree consistent burns, with her that she did to home care iy including seriously an unsuccessful and that he doubted that hospital care evidence, would have caused her to live. Based on this a rational was authorized to conclude that the victim’s thermal injuries directly materially happening contributed to the of a subsequent accruing Bryant immediate cause of her State, death. v. (1) (a) (507 Dyers 270 Ga. 268 SE2d v. 595) (2004); 277 Ga. Green v. (2) (b) (470 884) (1996); Dunbar v. 769, underlying aggravated
Brown also contends that assault conviction was based on evidence, insufficient as no one other than happened he and the victim could see what the bedroom when Contrary fire started because the door was closed. to Brown’s argument, his statement that the victim started the fire when she lighted dropped only happened. match was not the evidence of what open, testified that the door was she could into the see burning bathroom, and she saw Brown run into the bathroom awith towel and throw onto the victim. McBride testified testimony provided support that the closed, door was also for a finding that Brown intended to set the victim on fire. Conflicts “ ‘“ testimony credibility ‘are witnesses a matter of for the long competent necessary though resolve. As contradicted, as there is some evidence, even support each fact to make out the State’s (Cit.)” (Cit.)’ jury’s upheld.’ [Cit.]” case, verdict will be Williams in the Considered light clearly verdict, most favorable to the the evidence sufficient was beyond a doubt trier of fact to find reasonable to authorize a rational committing aggra- an death while that Brown caused intentionally pouring gasoline against onto her assault her vated body. throwing lighted paper on her See Sanders v. towel 772) (2006); Lowe v. (1) (435 Alexander v. 187) (1993); App. Johnson (539 SE2d Contrary contention, further the same evidence to Brown’s guilty respect damage supports to criminal verdict with degree. State in the second Brown also asserts produce the mobile home did failed to not evidence that owner of damage charging However, the fire. to a lesser included offense of arson in on criminal consent to degree property in the second charged only degree,
the first the trial court on that method of committing is offense which contained (a) (2) Lack of consent not an subsection element of the offense defined in that of OCGA 16-7-23. subsection, unlike subsection (a) urges hindering emergency the conviction for phone call must be reversed because there no evidence that he *3 Reynolds. physical ever intended to cause or allow However, applies harm to Ms. § 16-10-24.3, forth in offense is set OCGA which “[a]ny person verbally physically pre- obstructs, to or who person physical vents, or hinders or another with intent to cause allow injury person making completing harm or telephone to another from a 9-1-1 repeated phrase person”
call....” This use of “another analogous language robbery prohibiting to of statute taking person “property person from of another from the or the (a). § presence immediate ute of another ....” 16-8-40 That OCGA stat- clearly require “property does not that the of another” be taken person property. Instead, from the same who owns the it can be taken yet may by from another. be owned and taken from two persons. exactly “[I]t different not matter does whose long ‘person presence taken so as it was taken from a or the immediate (1) (a) (696 App. [Cit.]” of another.’ Ward legislature knows how to indicate that two person perpetrator references to a other than the both refer to the (b) (“another person. §§ person same See OCGA 16-6-22.1 without (b) (“another person”), person consent of 16-6-22.2 without (a) person”), (“property the consent of that 16-7-21 of another person” person”). without consent of that that or “that other conclude We require perpetrator 16-10-24.3does not that the intend OCGA person making to cause or harm to the who is hindered from allow call. The in this authorized the to find that 9-1-1 evidence case physical to cause or allow harm to the Brown, with the intent making from a 9-1-1 call. hindered Ms. to enable a rational trier of fact to
The evidence was sufficient
guilty beyond a reasonable doubt of all of the crimes for
find Brown
Virginia,
Jackson v.
untary manslaughter during commission of that unlawful act were by dropped lighted match authorized his statement that the victim may thought going when he back and she that he was to drew proof only hit her. That statement constituted some that the caught accidentally trying prevent fire while Brown was consequences dangerous Thus, of the victim’s conduct. this evidence respect did not show that Brown committed crime at all with lighting gasoline, the regard all of the other while evidence this showed that set the on fire. See 224) (2004); McClure v. Bellamy “ ‘“Where, here, the evidence shows either the commission the or the the (of assault), completed offense murder and required charge offense, commission of no the trial court is not [Cits.]” on a lesser included offense.”’ McClure v. charge involuntary manslaughter Brown also that a unintentionally was warranted evidence that he caused performed victim’s death manner, lawful act an unlawful holding burning piece which is in the bedroom where he gasoline. only and the victim were covered in However, the regarding lighted paper towel is that Brown threw it onto the including Rey- [Brown’s Therefore, victim. evidence, “the and Ms. nolds’] version[s] charge events, did not warrant a on lawful involuntary manslaughter. [Cit.]” act-unlawful manner Moore v. simple battery involuntary
Furthermore,
instructions on
*4
manslaughter
while
the commission of that unlawful act were not
by
authorized
during
the evidence that
struck the
in her
victim
face
argument.
specifically charged felony
their
The indictment
gasoline.
while
the commission of
assault with
alleged prior simple battery
by
was not established
the same
aggra-
conduct and therefore is not a lesser included offense of the
(2) (644
127)
State,
1,
vated assault. See Waits v.
282 Ga.
SE2d
(2007).
sought
advanced,
the State neither
nor
instruc-
regarding,
theory
tions
that Brown should be convicted for
striking
act led to the victim’s
in the face or that this
victim
on an offense for
“A
not entitled to an instruction
death.
defendant is
being
included offense
tried, and which is not a lesser
which he is not
(6)
defending. [Cit.]”
State,
671, 675
he
Belton v.
270 Ga.
of the one
(512
by
hearsay
made
3. The trial court admitted
statements
Reynolds regarding prior physical
to her mother and to Ms.
by
contends that admission of these statements
abuse Brown. Brown
right
as set forth in
Brown’s
to confront witnesses
violated
Crawford
177) (2004)
(124
Washington,
1354, 158 LE2d
Contrary establishing assertions, to Brown’s there was evidence relationships Reynolds, had close with her mother and Ms. confiding accepting in both of them and shelter in their after homes Devega Brown’s abusive behavior. See 293) (2010); Thomason v. 639) (2006); Bell v. supra Demons v.
“A trial court does not abuse its discretion when it admits hearsay testimony consisting . . . of uncontradicted state- ments ... unavailable witness to individuals whom placed great the declarant confidence and to whom help problems.” [Cit.] declarant turned for Furthermore, Smith v. the asserted omissions or *5 testimony regarding the time and uncertainties the witnesses’ specific alleged go circumstances of the incidents of abuse weight credibility testimony, oppor- of that and Brown had the tunity Devega supra; to cross-examine the witnesses. See 54) (2008). (2) (667 Our Allen v. independent the record confirms that the trial court did not review of holding abuse its discretion in that the out-of-court statements were Chapel State, admissible under the standards set forth in (4) (510 supra; Smith v. Bell v. supra. subpoenas seeking trial, Prior to Brown served duces tecum psychiatric Reynolds. records of Ms. The State thereafter filed a quash subpoenas, granted motion to which the trial court after conducting inspection determining inan camera of the records and exculpatory that did not contain material which either was impeachment Georgia or usable as under law. asks this Court Reynolds’ psychiatric to review Ms. sealed records and to determine ruling wholly partially that this either was or- erroneous. reviewing prepared records, After those we find that psychiatrist-patient privilege in the course of treatment and that the applied established in OCGA 24-9-21 to them. Lucas v. also conclude that the We correctly trial court found that the records do not contain exculpatory impeach Reynolds’ material which is or which would credibility. upon Brown relies Bobo v. 690) (1986), in which “(i)n
[a] plurality of this Court ... held that order (criminal) abrogate psychiatrist-patient privilege, showing necessity, defendant must make a is, that that question is critical to his defense and that substantially similar evidence is not otherwise available [Cit.] Applying him.” standard, that we find that the trial failing portions court did not err to disclose of the records psychiatrist-patient that reflected communications. Preter- mitting question of whether the trial court erred failing remaining portions to disclose of the beyond records, we find a reasonable doubt that their [Brown] disclosure to would not affected the outcome ... of the trial.
Lucas v. urges erroneously 5. Brown the trial court ruled that prior simple battery evidence of the conviction for requisite prima However, inadmissible. Brown failed to make the aggressor, showing assaulted that she that the victim was facie honestly trying Lewis v. to defend himself. him, and that he was Indeed, note in we State, this testify regard the trial court did not that Brown manslaughter charged voluntary accident, but not on justification. that he and the victim were engaged not combat, that circumstance does raise in mutual justification. McKee v. defense of justification in this “Because the sole evidence SE2d case was the victim’s [cit.] against party, act[ ] *6 a third violent Strong th[is] act[ ] [was] . . . .” v. inadmissible 837, 838 objection, testified, mother without that Moreover, the victim’s fight pled guilty battery during a former with victim boyfriend pled guilty. specifically also The trial court allowed who closing argument in such evidence which was Brown to refer objection. in Thus, even if the trial court erred admitted without excluding prior battery conviction, error victim’s was harmless. See Anderson supra Lewis v. Judgments All the Justices concur. affirmed. Justice,
HUNSTEIN,
concurring.
Chief
fully
judgment
emphasize
I concur
in the
but write to
how this
application
proximate
proper
case demonstrates
cause
felony
recently
appeals,
opinion
contrast to the
decided
Jackson,
State v.
death, occasioned pre-existing cause. Wilson 365) (1981) (“[w]here one
Larkin v. injury, injury proximate such is the cause of inflicts unlawful injury ‘directly materially if the contributed to the death subsequent accruing happening of a immediate cause of the death’”). principle, upheld this has the murder Under this following defendants: one who hit and kicked the convictions of causing parking victim, fatally injuring lot, him to fall onto a concrete headfirst leg,
him1; a defendant shot the victim in the who causing car, the victim to fall out then rolled over and which exchanged gunshots him2; killed a defendant who with burglary, causing attack3; the victim to die of a heart causing defendant who stabbed his complication arising her to later die due to a surgery required from to re-stitch the knife bridge wound4; a defendant who threw his drunken victim off a into river, 5; then where drowned and a defendant who resulting hatchet, smashed the victim’s skull with a in the victim’s death nine months later from infection.6 injured cases,
In each of these
the defendant
the victim some
manner that led to the victim’s death. In marked contrast to
line
this
charged
cases,
Jackson involved two defendants
injuries
murder who never inflicted
on the victim that led to the
(b) (1).
victim’s death.
tionally
OCGA 16-2-20
never inten-
injuries
caused another to commit the
that led to the victim’s
(b) (2);
death, id. at
never
aided or
abetted
the
(3);
(b)
injuries
commission of the
and
that led the
death,
id. at
*7
encouraged,
advised,
never
hired,
counseled
(b) (4).
procured
only thing
another to commit the murder. Id. at
The
allegedly
the defendants in Jackson
did was to set in motion a series
ultimately prompted
of events that
shooter,
the actual
who was the
target
robbery,
intended
of the defendants’ armed
to fire at and kill
co-conspirators.
upholding
one of the defendants’
Rather than
estab-
Georgia precedent
recognizing
lished
the defendants in
criminally responsible
Jackson could not be deemed
for the majority
imported
liability
death, the
in Jackson instead
civil tort
principles
Georgia
usurp
legislative
into
criminal
law order to
prerogative by crafting wholly
liability
new basis for criminal
this State.
1
(596
159) (2004).
Skaggs
when victim died of heart failure
robbery).
stress and
incurred
(278
Larkin v.
Jackson is principle legally distinguishable of law on from the well-established only to demonstrate how The facts here serve which it is based. judicially majority rewrite OCGA Jackson was to ill-advised the liability. Although of criminal to add this new form 16-2-20 carefully citing majority here, Jackson it should seize this avoids proximately opportunity Jackson causes to overrule before further to this area of criminal law. concurring.
NAHMIAS, Justice,
concurring opinion urges
Justice’s
the Court to
Chief
757) (2010),
Jackson,
Concurring Op.
(citing
Jackson,
at 370-371 & n. 1-6
cases).
(citing
1-2,
Reconsideration denied December appellant. Edwards, III, Edwards & J. David H. B. Edwards for Attorney, Tracy Chapman, Miller, District K. Assistant Attorney, Attorney Mary Baker, General, District Thurbert E. Beth Deputy Attorney Westmoreland, General, Smith, Paula K. Senior Attorney Mary Attorney General, Ware, Assistant K. Assistant Gen- appellee. eral, for