Montay Lee Merritt was tried by a Clayton County jury and convicted of the murder of his wife, Alesha. Following the denial of his motion for new trial, Merritt appeals, contending that the evidence is insufficient to sustain his cоnviction and that the trial court erred when it failed to charge the jury on voluntary manslaughter as a lesser included offense. Upon our review of the briefs and record, we find no error, and we affirm.
Monica, plz call mе! I thk I killed lisa. We argued last night. I choked hern she still on the floor naked. I havent touched her though. PLZ CALL ME[.] SCARFACE.
When family members and emergency response personnel arrived later that morning at the home Merritt sharеd with Alesha — who also was known as “Lisa” — they found her body on the floor of a bedroom, face down. By the time she was found, Alesha had been dead between two and four hours.
Merritt gave a statement to police officers. The night before her death, Merritt said, he and Alesha hád argued about another woman, who apparently was pregnant with his child. Merritt explained, however, that their argument did not leаd to any physical contact, and he and Alesha had fallen asleep around 11:00 p.m. The next morning, Merritt said, he awoke to find Alesha on the floor, tried unsuccessfully to awaken her, and then returned to his bed. Merritt denied killing Alesha, but he admitted sending the text message to his sister, a message that he was unable to explain.
At trial, a family member testified that Merritt had threatened to kill Alesha in her sleep only a couple of weeks before her death. And the medical examiner testified that Alesha died of asphyxia by strangulation. The medical examiner noted that Alesha had suffered a traumatic fracture of her thyroid cartilage, as well as petechial hemorrhaging, all of which was consistent with her having been strangled. Although Alesha had no visible bruising or abrasions on her neck, the medical examiner explained that the absence of such injuries is not uncommon in cases of strangulation, and he opined that such injuries might well be absent if the victim were unconscious when strangled, or if a forearm were used to strangle the victim.
On appeal, Merritt contends that the evidence is insufficient to sustain his conviction. More specifically, he argues that the text message to his sister was only an incriminating admission, not а confession, that the evidence of his guilt is, therefore, only circumstantial, and that the State was required to come forward with proof sufficient to exclude every reasonable hypothesis other than his guilt. See Simmons v. State,
According to former OCGA § 24-3-53,
Merritt points to certain evidence that impeached, he contends, the testimony of the medical examiner, including the testimony of his own expert witnesses, as wеll as evidence that the medical examiner was predisposed by his knowledge that strangulation was suspected. “As we have explained before, however, it is the role of the jury to resolve сonflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” Nicely v. State,
2. We turn now to the contention that the trial court should have charged the jury on voluntary manslaughter as a lesser included offense. Although Merritt filed a written request for an instruction on voluntary manslaughter and argued at the charge conferеnce that such an instruction ought to be given, he failed to object to the jury charge that the trial court eventually gave. “Because an objection voiced at the charge conferеnce does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion оf the jury charge constitutes plain error which affects substantial rights of the parties.” White v. State,
“Atrial court is required to give a requested charge on voluntary manslaughter if there is slight evidence showing that the victim seriously provoked the defendant, causing the defendant to kill the victim ‘solely as the result of a sudden, violent, and irresistible passion,’ OCGA § 16-5-2 (a).” Keita v. State,
Judgment affirmed.
Notes
The events that form the basis for the conviction occurred on or about December 6, 2008. Merritt was indicted on June 4, 2009 and charged with malice murder, felony murder, and aggravated assault. His trial commenced on May 17, 2010, and the jury returned its verdict on May 20, 2010, finding Merritt guilty on all counts. The verdict as to felony murder was vacated, the aggravated assault merged into malice murder, see Malcolm v. State,
We note that the portion of the text message in which Merritt wrote that “I havent touched her” is not exculpatory. Read in the context of the statements that precede it, this statement can only be understood to mean that Merritt had not touсhed Alesha since choking her, apparently killing her, and leaving her body on the floor.
Because this case was tried before January 1, 2013, our new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101. We note, however, that the provision of former OCGA § 24-3-53 was carried forward without change into the new Evidence Code, where it is found at OCGA § 24-8-823.