Lead Opinion
Mary Carolyn Luallen was found guilty of the malice murder of her 19-year-old niece, Angie Jernigan, and was sentenced to life in prison. She appeals from the denial of her motion for a new trial.
1. Evidence was adduced from which a jury was authorized to find that Luаllen, who had temporary custody of Jernigan’s infant, was upset over Jernigan’s plan to regain custody of her child. On the afternoon of July 27, 1992 Luallen met with Jernigan. While in Luallen’s car with the baby in the back seat, Luallen shot Jernigan twice
Expert evidence established that the victim’s body sustained post-mortem injuries in that the head had been nearly decapitated with cuts consistent with the use of a saw. A circular saw rendered inoperable by entwined bloody clothing was found on the scene. There was also evidence that the mattress covering the body and the surrounding soil had been saturated with gasoline. In the early hours of July 30, 1992, Luallen tried to remove the victim’s decomposing body from her backyard but was unable to put the body in the trunk of her car. When her husbanO returned from work, she informed him about the crime and together they went to the police, where she made two statements. In the first stаtement, made at 4:38 a.m., she claimed that while talking to the victim and a male friend in her backyard, she fired a warning shot in the air which hit the victim. She also told the police the weapon was under the seat in her car. After searching Luallen’s car, where blood was found in the interior and trunk, and investigating the matter more fully, police questioned Luallen again at 7:15 p.m., at which time she stated that after picking the victim up from work, she accidentally shot the victim twice in the head while retrieving the gun from the back seаt of the car.
We find the evidence sufficient to enable a rational trier of fact to find Luallen guilty of murder beyond a reasonable doubt under the standard set forth in Jackson v. Virginia,
2. Luallen contends the trial court erred by denying her motion for new trial because the evidence at trial and newly discovered expert evidence established that Luallen’s statements to the police were not voluntary.
The evidence showed that at the time of her statements Luallen was taking “nerve pills” (the prescription drug Xаnax), had recently sustained the loss of her teenage son in an automobile accident, and had not been sleeping well. Based on the testimony of the officer who conducted the interviews and a review of the videotaped interviews
As to the newly discovered evidence claim, it is well established that a defendant seeking a new trial based on newly discovered еvidence must satisfy the court as to all six requirements set forth in Timberlake v. State,
3. Luallen contends denial of her new trial motion was error because she received ineffective assistance of counsel in two regards: (a) counsel’s failure to have the two psychologists, who had evaluated her in regard to her insanity at the time of the crime and her ability to assist counsel at trial, also examine her as to the voluntariness of the statements she gave the police; and (b) сounsel’s failure to introduce expert psychological evidence in mitigation.
(a) The record establishes that in regard to admission of Luallen’s statement, counsel obtained and reviewed not one but two mental evaluations of Luallen from rеspected psychologists, interviewed witnesses, reviewed the State’s file (which included the videotapes of Luallen’s statements) and thoroughly cross-examined witnesses during the Jackson-Denno hearing. Under the circumstances in this case, and relying on the “strong presumption” that counsel’s performance was not deficient, Smith v. Francis,
(b) At the hearing on motion for new trial, trial counsel testified that they chose to introduce mitigation evidence solely through cross-examination of a State witness who knew Luallen and could testify about the behavioral changes she had observed in Luallen since the death of her son. This decision was clearly part of counsel’s trial tactics and strategy and while it “may have been wise or unwise, [it did] not constitute ineffective assistance of counsel.” Austin v. Carter,
4. Luallen contends the trial court erred by admitting her second statement because the police interrogated her after she had invoked her right to counsel during her first statement. The record reveals that when initially questioned at 4:25 a.m., Luallen was read her Miranda rights
Luallen asserts that her comment that she would “talk to [her] lawyer tomorrow” was a clear invocation of counsel such that the police, by reinitiating questioning and obtaining her second statement, аcted in violation of Edwards v. Arizona,
Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” [Cit.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. [Cits.]
Rather, the suspect must unambiguously request coun*178 sel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” [Cit.] [A suspect] must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
Davis v. United States, supra, 114 SC at 2355.
Luallen clearly waived her right to counsel after she initiated contact with the police and no further clarification was required before the police were entitled to proceed with that interrogation. Her comment about speaking to an attorney “tomorrow” indicated solely that she might invoke the right to counsel at a later time and merely reflected a “likelihood that [Luallen] would wish counsel to be present” in the future, a сomment which does not meet the test for applicability of Edwards v. Arizona, supra. McNeil v. Wisconsin,
5. Luallen contends the trial court committed reversible error by admitting testimony by Sergeant Patterson that when Luallen and her husband entered the Sheriffs office the morning of July 30, in response to the sergeant’s question whether he could help them, the husband stated in Luallen’s presence that Luallen had killed her niece. The trial court admitted the testimony based on the hearsay exception that the statement was made in Luallen’s presence. However, this Court has disapproved that hearsay exception in Jarrett v. State,
Nevertheless, no reversible error exists for the reason that the testimony by the sergeant as to what was said by the husband was admissible, not as an impermissible comment upon Luаllen’s silence, but under OCGA § 24-3-1 (b) “from necessity.” The two prerequisites for the admission of hearsay because of necessity are 1) necessity, and 2) particularized guarantees of trustworthiness. McKissick v. State,
6. The record does not support Luallen’s contention that certain forensic evidence (namely, that hair found on the circular saw blade at the crime scene was head hair) was admitted in violation of OCGA § 17-7-211. We also find no error in the trial court’s denial of Luallen’s motion for a mistrial regarding testimony about the capabilities of an inoperable chain saw found on the scene. The trial court sustained defense objections to the testimony and gave adequate curative instructions to the jury. See generally Stanley v. State,
Judgment affirmed.
Notes
The homicide occurred on July 27, 1992. Luallen was indicted on February 1, 1993 in Chattooga County. She was found guilty on March 11,1993, and was sentenced the same day. Her motion for new trial, filed April 2,1993 and amended November 16,1994, was denied on June 26,1995. A notice of appeal was filed on July 14,1995. The appeal was docketed on July 20, 1995. Oral arguments were heard on October 10, 1995.
Jackson v. Denno,
We thus need not address the State’s claim that the defense expert’s testimony lacked credibility, in that the expert did not review Luallen’s videotaped statements, the witness statements or trial testimony, or perform any psychological testing in arriving at his opinion.
Miranda v. Arizona,
Luallen raises this contention solely under the U. S. Constitution.
Concurrence Opinion
concurring.
Relying on the Georgia Constitution, I would adopt the rule that investigating officers must ask questions to clarify whether a suspect wants a lawyer when he or she makes an ambiguous or equivocal request for counsel.
See Hall v. State,
See Davis v. United States, 512 U. S.__(114 SC 2350, 2364, 129 LE2d 362) (1994) (Souter, J., concurring).