Eller v. StateEller v. State
Appellant Steven Mark Eller was found guilty of malice murder and other crimes, and his sister, Appellant Tammy Murphy, was found guilty of felony murder and other crimes, all in connection with the March 2013 shooting death of Murphy‘s boyfriend, Danny Lamar Gravley. Appellants now appeal, asserting that the evidence was insufficient to sustain Murphy‘s felony murder and aggravated assault convictions, that the trial court committed reversible error by allowing the alternate jurors to remain in the jury room during deliberations, and that Appellants’ trial counsel each rendered ineffective assistance for several reasons. Finding no reversible error, we affirm.1
I.
Viewed in the light most favorable to the jury‘s verdict, the evidence at trial showed that Danny Lamar Gravley lived with his girlfriend, Tammy Murphy, and her brother, Steven Mark Eller, the two Appellants in this case. On March 16, 2013, Gravley‘s nephew, Jason, gave Gravley a ride home from a funeral that they attended together. Jason made plans with Gravley to go to church and move a china cabinet the following day.
The next morning, March 17, 2013, officers from the City of Emerson Police Department discovered an abandoned white pickup truck with Gravley‘s dead body lying in the bed of the truck. He had been shot in the
Meanwhile, Gravley‘s nephews were trying to determine his whereabouts. Jason called Murphy to ask where Gravley was, and she told Jason that she and Gravley had gotten into an argument the previous night and that she had not seen him since he left around 10:00 p.m. Murphy told the same story to another of Gravley‘s nephews, Charlie. Both nephews thought Murphy sounded unusually “matter-of-fact,” “detail[ed],” “plain,” and “deliberate” in how she described the events of the previous night.
When GBI agents arrived at Appellants’ residence, the fire department was there responding to a backyard fire that was out of control. Murphy told firefighters that she was burning “stuff” in the back yard. Firefighters extinguished the flames and noticed that trash and household items were being burned. GBI agents knocked on the door, and Eller answered. He had a serious
The following day, Sergeant Jonathan Rogers, along with other police officers from the Bartow County Sherriff‘s Office, went back to the residence shared by Appellants and Gravley. When law enforcement arrived, Murphy‘s daughter and Eller were there, but Murphy was not. Eller left the house with investigators, and Sergeant Rogers waited for Murphy to return. While in the back yard, Sergeant Rogers observed what appeared to be blood on the siding of the house, on a step going up to the back deck, and on two fence posts. Sergeant Rogers saw Murphy drive toward the house and then turn around and drive away. Suspecting that she was attempting to avoid law enforcement, he
Sergeant Rogers advised Murphy of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), but explicitly informed her that she was not under arrest and that she was free to go. A search of Murphy‘s car revealed small red stains that appeared to be blood on the passenger‘s “pull down handle.” Sergeant Rogers asked Murphy to look at those markings to see if there could be some kind of explanation for why they would be there but she “could not offer any kind of explanation, did not say anything.” Appellants’ shoes were also seized—no blood was found on Murphy‘s shoes, but Eller‘s shoes revealed blood from an unknown source.
The next day, Appellants voluntarily appeared at the sheriff‘s office, waived their Miranda rights, and gave separate interviews to law enforcement. Murphy said that she and Gravley had been arguing all night on March 17, noting that “it happens all the time.” According to Murphy, she and Gravley
Eller‘s version of events was similar, but not identical. He said that he had sustained a foot injury during the incident that was “killing him,” but was too nervous to go to the hospital. Eller also indicated that he had a “drunken memory” of the incident, and stated that his brother and sister-in-law had come to the house to drink and that “everyone was buzzing.” At some point, his brother and sister-in-law left, and he went to the back yard and set a stump on fire. When he went to his bedroom, he saw Gravley pointing a gun at Murphy,
Appellants were arrested, and officers executed a second search warrant at their residence. Using a black light device, officers found stains on the bed‘s box spring, the carpet near the door, the bedroom wall, a vent cover, and on
At trial, Eller claimed accident and justification. Murphy argued that she never touched a gun and that the evidence showed only that she was a victim of an aggravated assault committed by Gravley. GBI Chief Medical Examiner Dr. Lora Darrisaw was tendered by the State as an expert witness and testified that Gravley‘s injuries were inconsistent with an accidental shooting because of “the pattern of the wound on the skin, the presence of soot on the bone at the entrance wound site, the location of the wound in the back of the head, [and] the direction of the wound with no upward or downward deviation,” but instead “nearly perpendicular to his body.” She also noted that Gravley had abrasions on his face that were consistent with hitting a hard surface, which could have been the ground when he fell following the gunshot.
Gravley‘s nephew testified that he had never seen Gravley carry a weapon, and opined that Gravley “wasn‘t a weapons person.” The defense, on the other hand, proved that Gravley had purchased a .38 handgun. Several defense witnesses, including Murphy‘s sister-in-law and a friend of Murphy‘s who was incarcerated at the time of trial, testified about previous incidences of domestic violence by Gravley against Murphy. The State called two rebuttal
Although Eller has not challenged the sufficiency of the evidence supporting his convictions, we have independently examined the record according to our usual practice in murder cases and conclude that the evidence admitted at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Eller was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979).
II.
As for Murphy, she asserts that the evidence admitted at trial was insufficient to support her convictions of felony murder and aggravated assault because the evidence, at best, showed that Murphy was merely an accessory after the fact to Gravley‘s killing.
We start with the legal standard for assessing the legal sufficiency of evidence to support a conviction. “Evidence may be less than overwhelming, but still sufficient to sustain a conviction.” Walker v. State, 296 Ga. 161, 163 (766 SE2d 28) (2014). And when we consider the evidence‘s legal sufficiency, “we must ‘put aside any questions about conflicting evidence, the credibility
There is no dispute that, as we have already found, the evidence was sufficient to show that Eller committed an aggravated assault upon Gravley and murdered him with malice aforethought. There is also no dispute that Murphy and Eller both went to great lengths to conceal Gravley‘s death, working together to dispose of his body, get rid of the murder weapon, clean up and destroy evidence at the residence, and then lie to Gravley‘s family and law enforcement. All of this evidence may also support a jury‘s finding that Murphy aided and abetted the assault. See State v. Cash, 302 Ga. 587, 596 (807 SE2d 405) (2017) (evidence that daughter “actively lied to police” about relevant facts, “and that she not only affirmed her mother‘s varying versions of events, but immediately following the shooting began to promote to third parties their joint stories” supported finding that she aided and abetted the
Although it is true that a mere “accessory after the fact is not considered an accomplice to the underlying crime itself,” Higuera-Guiterrez v. State, 298 Ga. 41, 44 (779 SE2d 288) (2015), “criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.” Navarrete, 283 Ga. at 158 (citation and punctuation omitted). And when “the crimes ‘involve relatives, slight circumstances can support the inference that the parties colluded.‘” Teasley v. State, 288 Ga. 468, 469 (704 SE2d 800) (2010) (quoting Adamson v. State, 238 Ga. App. 105, 106 (516 SE2d 310) (1999)). Here, there is sufficient evidence from which Murphy‘s criminal intent could be inferred beyond the evidence showing that she also conspired with Eller after Gravley‘s death.
These facts are different than those of Bullard v. State, 263 Ga. 682 (436 SE2d 647) (1993), on which Murphy relies heavily. Although the girlfriend in Bullard initially lied to police about the killing committed by her co-defendant, the evidence showed that she merely cooperated and concealed the victim‘s death out of fear of the shooter. See id. at 683-686. Here, on the other hand, the evidence of Murphy‘s presence at the time of the crime, her companionship with her brother, and her conduct before, during, and after the offense was sufficient to authorize a rational trier of fact to disbelieve Murphy‘s version of events as unreasonable and to find beyond a reasonable doubt that she was guilty of the crimes of which she was convicted. See Jackson, 443 U. S. at 318-319; Navarrete, 283 Ga. at 158.
III.
Appellants next contend that the trial court committed reversible error by allowing the two alternate jurors to remain in the jury room during deliberations. Although we agree that it was error for the alternate jurors to be allowed to retire with the other jurors during deliberations, Appellants have not shown that they were harmed by this error.
The State showed harmlessness at the motion for new trial hearing by submitting affidavits from all 12 jurors and both alternates. The affidavits stated that the alternates followed the trial court‘s instructions while in the jury room and did not participate in jury deliberations and that the jurors were not influenced by the alternates. See Newsome, 259 Ga. at 187 (harmless error because affidavits of all 12 jurors showed alternate juror did not affect any juror or jury‘s verdict); Johnson, 235 Ga. at 494-495 (harmless error because
In any event, both Appellants waived any claim of error. When the trial court asked the attorneys about the alternate jurors, Eller‘s trial counsel stated, “I don‘t have a problem with them going back with the jury as long as they‘re instructed not to say anything.” Although Murphy‘s trial counsel initially said that he did not want the alternates to go into the jury room during deliberations, when the trial court advised him that it would either permit the alternates in the jury room with instructions not to participate or “[i]f you don‘t want them in the jury room, I‘ll certainly respect that, but I‘ll have them sit in another room,” Murphy‘s trial counsel replied “that‘s fine, Your Honor, to go back to the jury room with instructions” not to participate. See Chandler v. State, 309 Ga. App. 611, 614 (710 SE2d 826) (2011) (“[W]here defense counsel agreed to the alternate juror‘s presence during deliberations, any error is waived.“); London, 260 Ga. App. at 782 (“[C]ounsel‘s consent to the arrangement waives this error.“). We should be clear, however, that the trial court‘s action was inappropriate, and we do not approve of permitting alternate jurors to be present during deliberations. To do so is plainly contrary to Georgia law. See
Appellants next contend that their trial counsel were ineffective for acquiescing to the alternate jurors remaining with the jury during deliberations, failing to object to the medical examiner‘s expert testimony suggesting that the shooting was not an accident, withdrawing a notice of intent to introduce evidence of Gravley‘s violent acts toward third parties, failing to object to inadmissible hearsay, failing to object to improper testimony about Murphy‘s pre-arrest silence, and failing to introduce a certified copy of a bond order requiring Gravley to have no contact with Murphy. We disagree.
To prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel‘s performance was professionally deficient and that such deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U. S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the first prong, deficient performance, a defendant must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U. S. at 687-688. This requires a defendant to “overcome the ‘strong presumption’ that counsel‘s performance fell within a ‘wide range of reasonable professional conduct,’ and that counsel‘s decisions were ‘made in the exercise of reasonable professional judgment.‘” Simmons v. State, 299 Ga. 370, 375 (788 SE2d 494) (2016) (citation omitted). To satisfy the second prong, prejudice, the defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. Strickland, 466 U. S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010). We review each of Appellants’ claims of ineffectiveness below.
A. Failing to object to alternate jurors remaining with the jury during deliberations.
As established above, even if Appellants’ trial counsel had objected to the presence of the alternate jurors in the jury room during deliberations, the State submitted affidavits from all of the jurors demonstrating harmlessness.
B. Failing to object to expert testimony that the gunshot wound was inconsistent with an accident.
In criminal proceedings, expert witnesses “testifying with respect to the mental state or condition of an accused” cannot “state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto” because “[s]uch ultimate issues are matters for the trier of fact alone.”
Because Rule 704 is modeled on the Federal Rules of Evidence, we interpret it by looking “to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.” Glenn v. State, 302 Ga. 276, 280 (806 SE2d 564) (2017) (citation and punctuation omitted); see also Davis v. State, 299 Ga. 180, 185 (787 SE2d 221) (2016); State v. Frost, 297 Ga. 296, 299 (773 SE2d 700) (2015). Rule 707, however, was carried over from our former rule of evidence
We have repeatedly held that under former
Indeed, the Eleventh Circuit has noted that “[t]he operative language of 704(b) says that an expert may not ’state an opinion or inference as to whether
Because the medical examiner‘s testimony that Gravley‘s injuries were inconsistent with an accidental shooting did not supply or mandate a conclusion that Appellants did or did not have the requisite mental intent for any crime or defense, there was no violation of Rule 704. And because the expert‘s opinion was based on her specialized knowledge and training, as permitted by Rule 707, her testimony was admissible and any objection to it
C. Withdrawing notice of intent to introduce evidence of Gravley‘s violent acts toward third parties.
Appellants next contend that their trial counsel were ineffective for withdrawing a notice of intent to introduce evidence of Gravley‘s violent acts toward third parties. But we have previously held that “as a general rule, character evidence of a victim is limited to reputation or opinion, not specific bad acts.” Mohamud v. State, 297 Ga. 532, 536 (773 SE2d 755) (2015) (emphasis in original). Appellants themselves acknowledge that, at best, the question of whether there should be an exception to the general rule which would “allow specific acts of evidence of a victim‘s violent disposition of which the defendant had personal knowledge to show the defendant‘s state of mind” was “left open” by this Court in Mohamud. Id. at 536 n.2 (citation and punctuation omitted). That dooms their claim because in general, “trial counsel‘s performance cannot be deemed deficient for not raising an unsettled
D. Failing to object to hearsay.
Appellants also contend that their trial counsel were ineffective for failing to object, on hearsay grounds, to testimony elicited by the State on its re-cross examination of a defense witness. The witness had stated that during a prior domestic incident between Gravley and Murphy, Gravley said he struck Murphy to disarm her because she was holding a toy gun on him that he thought was real. But when asked about this testimony at the motion for new trial hearing, Appellants’ trial counsel testified that they did not object to the testimony because Gravley‘s admission that he hit Murphy was consistent with their trial strategy and showed that in “Mr. Gravley‘s own words, something aggressive [was] going on.” “Reasonable decisions as to whether to raise a specific objection are ordinarily matters of trial strategy and provide no ground for reversal.” Ballard v. State, 297 Ga. 248, 254 (773 SE2d 254) (2015) (citation and punctuation omitted). We do not find that counsel‘s strategy here fell outside the wide range of reasonable professional performance.
Appellants also contend that trial counsel were ineffective for failing to object to Sergeant Rogers‘s testimony that when he asked Murphy to look at suspected bloodstains on her vehicle she “could not offer any kind of explanation, did not say anything.” Appellants argue that this testimony was an improper comment on Murphy‘s pre-arrest silence in violation of our holding in Mallory v. State, 261 Ga. 625, 629-630 (409 SE2d 839) (1991).
But as we recognized in Wright v. State, 300 Ga. 185, 186 n.2 (794 SE2d 105) (2016), the rule set forth in Mallory, which was based not on constitutional grounds, but on former
F. Failing to introduce a certified copy of a no-contact order.
Judgment affirmed. All the Justices concur.