Willie George Nelms and Joel Gilbert Lindsey were jointly indicted, tried, and convicted of malice murder and concealing the death of another in connection with the stabbing death of Errin Michelle Hattaway. 1 In these consolidated appeals, both defendants claim that the trial court erred in failing to give requested jury instructions on voluntary manslaughter and mutual combat and in denying a motion for mistrial based on prejudicial publicity; Lindsey also asserts that the court erred in denying his motion to sever his trial from that of his co-defendant. Finding no error, we affirm.
The victim was the girlfriend of appellant Lindsey. The two were friends of appellant Nelms and his wife, Beverly Barber-Nelms (“Barber-Nelms”). Barber-Nelms, who pled guilty to voluntary manslaughter and concealing a death, waived the marital privilege, and testified for the State at trial.
Viewed in a light most favorable to the verdict, the evidence established that the victim threatened to alert DFCS and the police to drug use on the part of Nelms, Barber-Nelms,
Forensic evidence established the cause of death as slash wounds to the neck; the victim also suffered defensive wounds to her hands.
1. Both defendants claim that the evidence was insufficient to sustain their convictions because it consisted of the uncorroborated testimony of accomplice Barber-Nelms. “ ‘Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict.’ ”
Williams v. State,
We further reject Lindsey’s argument that the evidence against him established only his “mere presence” at the scene when Nelms committed the physical act of stabbing the victim.
Although mere presence at the scene of the crime is insufficient grounds for a conviction, a person can be guilty as a party to the crime if they intentionally aid, abet, encourage, facilitate, assist, or are otherwise concerned in the commission of the acts that constitute the crime.
Metz v. State,
Construed most strongly in support of the verdicts, the evidence was sufficient for a rational trier of fact to find both defendants guilty beyond a reasonable doubt of malice murder and concealing the death of another.
Jackson v. Virginia,
2. Lindsey submits that the trial court erred in denying his pretrial motion to grant severance of defendants and his subsequent motion for mistrial based on an alleged
(a) “It is incumbent upon the defendant who seeks a severance to show clearly that [the defendant] will be prejudiced by a joint trial, and in the absence of such a showing, the trial court’s denial of a severance motion will not be disturbed.” [Cit.] Factors to be considered by the trial court are: whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses.
Daniel v. State,
(b) At trial, the motion was renewed by Lindsey on Bruton grounds, and was again denied.
After his arrest, Nelms gave two oral statements to the police; each statement was preceded by Miranda warnings and a written waiver. At trial Nelms invoked his right to remain silent. Over Lindsey’s Bruton objection, the police officers who had questioned Nelms were permitted to testify to the contents of the two state ments. 2 During his initial questioning, Nelms was asked whether he had seen the victim; he replied that he had not seen her in some time and that he heard she had gone off with a truck driver. Nelms also admitted having gone to the cemetery but he stated that when he drove away from there, the victim did not accompany him. 3 Nelms admitted that he kept several knives at his home, but he denied carrying any. In a subsequent interview, Nelms was asked if he had driven to Louisiana. The officer related Nelms’ response: “He said they went almost to Louisiana, but he didn’t think they actually got into Louisiana.” The officer then related Nelms’ response to an inquiry about the cemetery: “He told me he went to the cemetery” and “he helped cover the body.”
In Bruton, supra, the Court held that a defendant’s Sixth Amendment right of confrontation is violated, despite cautionary instructions, when: (a) co-defendants are tried jointly; (b) one co-defendant’s confession is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement.
Mason v. State,
In neither statement did Nelms name or inculpate Lindsey. Lindsey asserts that the statement “they went almost to Louisiana,” could be construed by the jury to refer to him especially in light of Barber-Nelms’ testimony that the two couples had embarked on the road trip together. But this reference, standing alone, did not directly implicate Lindsey in the crimes, and the remainder of Nelms’ remarks referred only to himself. Id. For similar reasons, the trial court did not err in denying Lindsey’s motion for mistrial on Bruton grounds when, during closing argument, the prosecutor referred to Nelms’ custodial statements. Id. It follows that the trial court did not abuse its discretion in denying the severance motion and the motion for mistrial on Bruton grounds. Daniel, supra at 408 (3) (b); Thomas, supra at 137 (6).
3. On the morning of closing argument, defense counsel moved
for mistrial on the ground that the defendants were prejudiced by an article about the trial that appeared in a local newspaper that morning. After a hearing at which the reporter and an investigator for the prosecution were questioned, the court denied the motion. The court found that with the exception of a minor misstatement in the article concerning Barber-Nelms’ sentence, the article contained information that had been adduced during trial and to which the jurors had been exposed. The court also noted that during the course of the trial, the jurors were repeatedly admonished to avoid any media coverage of the case. “It is presumed that jurors follow a trial court’s instructions,”
Young v. State,
Although on appeal defendants urge that the court erred in failing to poll the jurors about any possible exposure to the article, no such request was made at trial. See
Mason v. State,
4. It is asserted that the trial court erred in failing to give requested jury instructions on voluntary manslaughter and mutual combat.
(a) “A voluntary manslaughter charge is warranted only if there is evidence that an accused acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” (Punctuation omitted.)
Nichols v. State,
(b) A charge on mutual combat “is warranted only when the
combatants are armed with deadly weapons and mutually agree to fight.”
Hudson v. State,
5. Nelms submits that the trial court abused its discretion in refusing to reopen the evidence for the purpose of allowing him to testify in his own defense. After the State rested its case, the court addressed both defendants and ascertained that they had sufficient time to discuss with their attorneys their decisions not to testify. The defense then presented its case, all parties rested, and the evidence was closed. The following morning, Nelms asked the court to reopen the evidence to allow him to testify. The State objected noting that all its witnesses had been excused from their subpoenas and the State would have no rebuttal testimony available if needed. The discharge of all the witnesses for one side after the case has been announced closed is good ground for refusing to reopen the case at the instance of the other party.
Bundrick v. State,
Judgment affirmed.
Notes
The crimes were committed on April 9, 2004. An indictment was returned on May 28, 2004, charging Nelms and Lindsey with malice murder and concealing the death of another. Trial commenced on February 5, 2007 and on February 7, 2007, a jury found both defendants guilty as charged. On the same day, both defendants were sentenced to life imprisonment for malice murder plus ten consecutive years for concealing a death. Nelms filed a motion for new trial on March 2, 2007, which he amended on August 8, 2008. Lindsey filed a motion for new trial on March 1, 2007, which he amended on October 6, 2008. The motions for new trial as amended were denied on December 1, 2008. Both defendants filed notices of appeal on December 12, 2008. Their appeals were docketed in this Court on December 17, 2008. Oral argument was heard on May 18, 2009.
No written statements were introduced in evidence.
The officer witness did not specify the date or time of Nelms’ visit to the cemetery.