S18A1538. VIRGER v. THE STATE. S18A1539. CAVE v. THE STATE.
S18A1538, S18A1539
Supreme Court of Georgia
February 18, 2019
305 Ga. 281
NAHMIAS, Presiding Justice.
FINAL COPY
Darius Virger and Alexis Cave were tried together for crimes related to the beating and death of Diarra Chappell, a 13-month-old child who lived with them. Virger was convicted of malice murder, Cave was convicted of felony murder, and both were convicted of other offenses. On appeal, both Virger and Cave challenge the legal sufficiency of the evidence supporting some of their convictions and contend that the trial court erred by not severing their cases for trial. Virger also contends that the trial court erred by failing to strike a juror for cause, by physically separating the co-defendants during their trial, and by overruling several of his evidentiary objections. Cave contends that the trial court erred by allowing the admission of impermissible character evidence, by excluding expert testimony about her mental condition, and by denying her motion for a continuance. Our review of the record, however, reveals no
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Virger and Cave began their tumultuous marriage in May 2011, when Cave was 16 years old and Virger was almost 26. Cave became pregnant shortly thereafter, but the couple separated in October. Virger and Cave‘s daughter A. V. was born in April 2012. A few months later, Virger began dating Tina Chappell, who had recently given birth to Diarra. Virger, Chappell, and Diarra began living together in a townhouse in
In November 2012, Virger and Cave began seeing each other again, but their renewed relationship was fraught with jealousy, arguments, and violence; Cave claimed that Virger was physically abusive toward her on a daily basis. Several text messages from Cave referenced Virger‘s physical abuse toward her, asking him to “stop putting [his] hands on [her] and saying that she was “not [his] personal punching bag.” Virger sent a text threatening “to beat [Cave‘s] ass.” Many texts from Cave‘s phone also indicated that she was resentful of Virger‘s relationship with Chappell and Diarra; several texts Cave sent in November and December 2012 accused Virger of not caring about her because he had a “new family with a new daughter” whom he loved “more than [his] real family.” Cave also sent her father a text in November saying, “idgaf about [Diarra].”2
In January 2013, Cave and A. V. moved into the townhouse with Virger and Diarra. Virger continued acting as the primary caretaker for Diarra, and
On several occasions after Virger began taking care of Diarra, witnesses noticed bruises on her, including bruises on her upper arms, forehead, and cheeks and around one of her eyes. During a visit with Virger and Diarra at the jail on December 22, 2012, Chappell observed that Diarra had a black eye. When Chappell asked Virger about it, he replied that Diarra had fallen while trying to pull herself up. In early February 2013, Virger‘s aunt noticed that Diarra had a black eye, and Virger claimed that Diarra was learning to walk and had fallen down.
On February 14, Virger and Cave‘s texts to each other indicate that they
More than two-and-a-half hours later, at 9:24 a.m., Virger and Cave brought Diarra to a hospital. She had significant bruising across her head and ear, and she was unresponsive and in cardiac arrest. Virger told medical staff that Diarra had fallen from a highchair the day before; that he had given her a bottle that morning and then left the room to make a phone call; and that when he returned to check on her, her left arm was shaking and she was not breathing. While they were attempting to resuscitate Diarra, a doctor and nurse removed her diaper to take her temperature; they noticed that there was tearing to the
Later that day, Virger and Cave were interviewed separately by sheriff‘s officers; their video-recorded interviews were played for the jury at trial. Both appellants acknowledged that no one else had taken care of Diarra during the preceding couple of days. They both claimed that Diarra had fallen from a highchair the previous afternoon but had seemed fine; that she had gone to sleep around 1:30 a.m.; that Virger gave her a bottle in her crib around 8:30 a.m.; that when he checked on her about 30 minutes later, she was not breathing; and that they then got dressed, put both Diarra and A. V. in their car seats, and drove to the hospital. Both Virger and Cave denied any knowledge of Diarra‘s rectal injuries. When asked why Diarra was wearing a fresh diaper when she arrived at the hospital, Cave said that just before they left for the hospital, she had changed Diarra‘s diaper because it had been fastened together with tape and she did not want hospital staff to think they were “unfit parents.” When Cave was left alone in the interview room, she said to herself, “I‘m going to hell” and “I‘m sorry, baby.” During a search of the townhouse later that day, officers found a diaper on the floor of Diarra‘s room that tested positive for the presence of
A couple of days later, Cave and Chappell, who had been released from jail, were involved in a fight, during which Cave threatened to send Chappell “to be with [her] daughter.” In mid-March, Cave moved out of the townhouse, and shortly after that, Chappell moved back in. After Cave discovered that Virger was seeing Chappell again, Cave sent a text threatening Virger that she was “telling” and that he was “about to be locked up.”
About ten weeks after Diarra died, on June 3, 2013, Virger gave a second statement to a detective, complaining that Cave had sent him threatening voicemails; the recorded interview and the voicemails were also played at trial. In one of the voicemails, Cave said, “you want to threaten me . . . talking about oh, well if you tell . . . this gonna happen . . . well guess what motherf*cker, I ain‘t covering for you no more. Me and my baby are not about to pay the price for your actions. So guess what? You‘re going down because I‘m talking to my lawyer.” Virger told the detective that he suspected Cave may have had something to do with Diarra‘s death, although he claimed that he had never witnessed Cave being violent toward Diarra.
About a week later, Cave also provided a second statement to the
On August 26, 2013, Virger was interviewed by a detective for a third time; the recording was also played for the jury. Virger again denied that he had
At the joint trial of Virger and Cave in late 2015, the State presented evidence that Diarra died from “abusive head trauma,” which was caused by blunt impact injuries to her head. Her autopsy showed multiple bruises on her back, knee, forearm, back of the head, forehead, ears, cheeks, and chin; there was also a “patterned” bruise with linear, spaced marks on the right side of her face. Diarra had abrasions on her chest and abdomen and a red mark on her left ankle. The trauma to her head caused bleeding in her scalp tissues, spine, and cervical cord, under her brain, and on her retinas and around her optic nerves. Two of the State‘s medical experts testified that these injuries were caused by “vigorous acceleration” or “whiplash,” that they did not correlate with a single fall from a highchair, and that Diarra would not have been able to move, much less grab a bottle, after her injuries were inflicted. The medical examiner testified that Diarra‘s injuries occurred between eight and 24 hours before her death, and a child abuse expert testified that, “had medical intervention been provided, it would have given [Diarra] the best chance of surviving” her
Diarra‘s autopsy also showed that she had a “fresh” hemorrhage in her dilated rectum and tearing on its surface, which was consistent with forceful penetration. When asked by Cave‘s counsel if Diarra‘s rectal injuries could have been caused by constipation or a hard stool, the medical examiner said “that would be a remote possibility.” The State‘s child abuse expert also testified that Diarra‘s rectal injuries could not have been caused by the normal insertion of a rectal thermometer, and Virger and Cave both had said that Diarra was not constipated and that they did not use rectal thermometers on Diarra.
Virger did not testify at the joint trial; Cave elected to testify and recounted a story similar to the one she told during her second interview. She claimed for the first time, however, that after Virger held his hand over Diarra‘s mouth and nose, she sneaked upstairs and desperately searched for her phone so that she could call 911. According to Cave, her search was interrupted when she heard a thumping sound and went downstairs, where she saw Virger slamming Diarra‘s head and body against the couch.
Sufficiency of the Evidence
2. Virger contends that the trial court erred by denying his motion for
As summarized above, the evidence showed that multiple witnesses observed bruises on Diarra after Virger began acting as her primary caretaker; Virger and Cave were the only adults in the townhouse when Diarra was fatally
As for his aggravated sexual battery conviction, Virger contends that the trial court erred by denying his motion for a directed verdict of acquittal on that count because sexual assault kits did not reveal the presence of his DNA or semen in Diarra; because the State did not present any evidence as to what object caused Diarra‘s rectal injuries; and because alternative theories — like a
The State presented evidence that Diarra suffered an aggravated sexual battery near the time Virger inflicted her other injuries. The child came to the hospital with an “extremely dilated” rectum that had tearing on its outside, and her autopsy showed hemorrhaging in her rectum, which the medical examiner testified was recent and consistent with forceful penetration. The jury also heard evidence undermining the alternative theories Virger proposed, as experts testified that it was highly unlikely that the injuries could have been caused by constipation, a hard stool, or normal insertion of a thermometer, and both Virger and Cave said that Diarra did not have constipation and that they did not use rectal thermometers on her. See Kemp v. State, 303 Ga. 385, 389-390 (810 SE2d 515) (2018) (explaining that “‘[q]uestions as to the reasonableness of
Moreover, the State was not required to prove what specific foreign object caused the child‘s rectal trauma, only to present evidence from which the jury could reasonably infer that such an object was used. Cf. Lattimer v. State, 231 Ga. App. 594, 595 (499 SE2d 671) (1998) (explaining that to prove aggravated assault with a deadly weapon, “‘[i]t is clear that even in the absence of the production or verbal description of the weapon used, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon‘” (citation omitted)); Terry v. State, 224 Ga. App. 157, 159 (480 SE2d 193) (1996) (same principle for weapon used in armed robbery). Finally, the absence of Virger‘s DNA or semen was not exculpatory, because if Virger had sexually assaulted Diarra, he would have committed a different crime. The crime of aggravated sexual battery does not require proof of a sexual act involving the defendant‘s sex organ; to the contrary,
Viewed as a whole, the evidence was legally sufficient for the jury to reject Virger‘s alternative hypotheses as to how Diarra‘s rectum was injured and to find him guilty beyond a reasonable doubt of aggravated sexual battery. See Jackson, 443 U.S. at 319. Accordingly, the trial court did not err in denying Virger‘s motion for a directed verdict of acquittal on this count. See Thompson, 304 Ga. at 149.
3. Cave contends that the evidence presented at the joint trial was insufficient to support her conviction for felony murder based on second-degree child cruelty and her conviction for aggravated sexual battery. We disagree.
A person commits the crime of second-degree child cruelty if she “with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.”
When viewed in the light most favorable to the jury‘s verdicts, the evidence presented at trial showed that Cave and Virger were married and living together, that Diarra was in their sole care, and that Cave resented Diarra and begrudged the attention that Virger showed Diarra, which caused extreme conflict in the couple‘s already tumultuous relationship. Diarra had visible signs of abuse in the months before she was killed, and Cave testified that she watched Virger nearly suffocate Diarra and then slam the child‘s already weak
After Diarra died, Cave told investigators Virger‘s invented story of Diarra‘s fall from a highchair — although she then was caught on video acknowledging some culpability for Diarra‘s death by telling herself that she was going to hell and was sorry about what happened to the baby. She then made statements to Virger indicating that she was covering for him; only months later, after Virger had renewed his relationship with Chappell and started pointing the investigators to Cave, did Cave acknowledge to investigators that
Viewed as a whole, this evidence was sufficient to authorize the jury to find Cave guilty beyond a reasonable doubt at least as a party to felony murder based on second-degree child cruelty, and in particular to find that her and Virger‘s allowing Diarra to suffer rather than promptly seeking medical aid was a proximate cause of the child‘s death. See
Turning to Cave‘s conviction for aggravated sexual battery, as discussed above in relation to Virger‘s similar conviction, the State presented sufficient evidence that this crime occurred while Diarra was in the care of Virger and
4. Virger and Cave both assert that the trial court erred by denying their motions to sever their joint trial.
In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.
Herbert v. State, 288 Ga. 843, 845 (708 SE2d 260) (2011) (citations omitted).
This case involved only two co-defendants, who were tried for the same crimes based on largely the same evidence, and the State‘s theory was that they acted together to commit the crimes. See Lupoe v. State, 300 Ga. 233, 242 (794 SE2d 67) (2016). The trial court provided the jury with limiting instructions on each of the few occasions that evidence against one of the co-defendants was inadmissible against the other, and the jury is presumed to have followed those instructions. See Wade v. State, 304 Ga. 5, 10 (815 SE2d 875) (2018). Virger and Cave both argue that severance was required because they asserted antagonistic defenses. “That alone, however, is insufficient to require severance, because ‘unless there is a showing of resulting prejudice, antagonistic
defenses do not automatically require a severance.” Krause v. State, 286 Ga. 745, 750 (691 SE2d 211) (2010) (citation omitted). Virger and Cave have not shown any specific prejudice resulting from antagonistic defenses that would have required the trial court to grant their motions.
Cave also claims that severance was required because the strong evidence of Virger‘s guilt caused a “spillover effect” that tainted her defense. This case is considerably different from the Court of Appeals cases on which Cave relies, which involved little to no evidence that the defendant was even present — much less an accomplice — when the crimes occurred, juxtaposed against overwhelming evidence that the co-defendants committed the offenses. See Price v. State, 155 Ga. App. 844, 845 (273 SE2d 225) (1980) (holding that the trial court erred in denying the defendant‘s motion to sever because the evidence against his co-defendant was overwhelming, while the only proof that the defendant committed the crimes was the testimony of one impeached identification witness, and because the court failed to give limiting instructions to the jury regarding which evidence could be considered against which defendant); Crawford v. State, 148 Ga. App. 523, 525-527 (251 SE2d 602) (1978) (concluding that the trial of the defendant, who was charged with child
For these reasons, we conclude that the trial court did not abuse its discretion in denying the severance motions and holding a joint trial.
Contentions Raised Only by Virger
5. During voir dire, one of the prospective jurors who ultimately served on the trial jury became emotional when he was questioned about whether he had experienced the death of a child. The juror explained that prior to meeting his wife, her 52-day-old child had died in 1984. He also was asked whether he had known anyone who had been sexually abused, and he responded that his stepdaughter had been sexually molested. Virger moved to strike the juror for cause, but the trial court denied the motion. Virger now asserts that the court erred because the juror‘s personal experiences prevented him from
“‘[F]or a juror to be excused for cause, it must be shown that he . . . holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge.’” Brown v. State, 295 Ga. 804, 808 (764 SE2d 376) (2014) (citation omitted). After the juror said that the death of his wife‘s child could “possibly” distract him during the trial, the prosecutor questioned him, and the juror said that he did not have a fixed opinion regarding the guilt or innocence of the defendants and that he would be able to base his verdict on the evidence and the trial court‘s instructions. He also said that the experience of his stepdaughter‘s abuse would not distract him or cause him to be partial. Accordingly, the trial court did not abuse its discretion in refusing to strike the juror for cause. See Anderson v. State, 276 Ga. 389, 390 (578 SE2d 890) (2003) (explaining that the trial court did not abuse its discretion by denying the defendant‘s motion to excuse a juror who expressed empathy for the victims and reservations about his ability to set aside his personal experiences,
6. At some point during voir dire, Cave, who was sitting at the defense table with Virger, rubbed her foot on his leg. The court‘s bailiffs then apparently placed a trash can between the co-defendants, and Cave moved to a different seat at the table. This incident is not reflected in the transcript of voir dire, but during cross-examination of Cave, the prosecutor asked her about the incident, without objection by Virger. At the conclusion of Cave‘s testimony, the trial court told the parties, outside the presence of the jury, “I recognize that [Cave] has just testified against Mr. Virger, I suspect that he‘s not overly thrilled with that. I just was wanting to make sure that our seating arrangements, that everybody‘s comfortable with them, or do we need to rearrange the chairs?” The transcript indicates that Cave‘s seat was changed, as the court said, “Just put her right there. Okay.” Virger again did not object.
He now contends that the trial court‘s separation of the co-defendants violated his Sixth Amendment right to a fair trial. Because the record does not show (and Virger does not contend) that he objected on this basis at trial, this claim is not preserved for appeal. See Willis v. State, 304 Ga. 686, 718 (820 SE2d 640) (2018). In any event, Virger cannot show that the bailiffs’ or the trial
7. Virger asserts that the trial court erred by admitting testimony on three occasions that he claims improperly put his character in issue in violation of
(a) At trial, Virger’s aunt testified for the State. Before
The strong evidence of Virger‘s guilt, as discussed in Divisions 1 and 2 above, easily offset any prejudice from the aunt‘s testimony that on one occasion long before the crimes at issue, he put Cave in a headlock. Moreover,
(b) The State also presented testimony from Darlene Norton, the mother of Diarra‘s father‘s girlfriend. Norton said that she contacted Virger after Diarra‘s mother (Tina Chappell) was incarcerated to request that Diarra come to live with Norton and Diarra‘s father, but Virger refused, and he said “go f*ck yourself” when Norton said that she planned to involve the police. Virger does not claim that the substance of Norton‘s testimony was inadmissible, as it was relevant to show his efforts to isolate Diarra; he instead asserts that the “go f*ck yourself” statement impermissibly placed his character in issue by underscoring his “poor language.” But without more, a curse word is not a “crime[ ], wrong[
(c) Finally, Virger contends that the trial court erred by admitting improper character evidence in the form of testimony from Tina Chappell that Virger had abused her. Before Chappell testified for the State, Virger objected to Cave questioning Chappell about whether Virger had hit Chappell. The court overruled the objection but instructed the jury that the evidence of prior difficulties between Virger and Chappell should be considered solely as evidence of the feelings between them. In response to Cave‘s questions about
The evidence that Virger abused Chappell was not introduced for one of the purposes listed in
Contentions Raised Only by Cave
8. Cave also raises three claims relating to the trial court‘s admission of evidence that she contends improperly placed her character in issue in violation of
(a) First, Cave asserts that the trial court erred by admitting evidence of an abortion she had about six weeks after Diarra‘s murder. When Cave objected to this evidence before trial, the prosecutor agreed that references to the abortion in Cave‘s recorded statements should be redacted, but argued that text messages from Cave to Virger that sought money for the abortion in connection with her deciding whether to “tell on” him were relevant to the concealment of the conspiracy between her and Virger. The trial court agreed. Accordingly, during the trial the State introduced evidence of Cave‘s abortion only through its mention within two text messages among several hundred texts included in the
In addition, during voir dire, the trial court allowed Cave‘s attorney to individually question prospective jurors about their views on abortion, and only one of the 15 jurors (including alternates) who were later selected expressed disapproval of abortion. Three other selected jurors said that they did not support abortion but that it was an individual choice, and the remaining 11 selected jurors said that they were pro-choice. Under all these circumstances, it is highly probable that, even assuming the brief references to Cave‘s abortion in the two text messages were improperly admitted, any error did not contribute to the jury‘s verdicts.
(b) During the State‘s direct examination of Chappell, the trial court admitted into evidence, over Cave‘s objection, testimony about two confrontations between Chappell and Cave. Chappell testified that during the first confrontation, which occurred two days after Diarra‘s death, Chappell and Cave hit each other and Cave made a comment about “sending [Chappell] to be
The trial court properly admitted against Cave her statements to Chappell regarding Diarra‘s death as admissions by a party-opponent. See
(c) Cave testified on direct examination that she was “emotionally unstable when it comes to [Virger],” that she hated his abuse but was completely dependent on him, and that he made her believe that no one else would love her. During cross-examination by the State, the prosecutor told the trial court during a bench conference that she intended to question Cave about text messages and photographs of a sexual nature that Cave had sent to other men. Cave objected based on character evidence, but the court overruled the objection. Back in front of the jury, the prosecutor asked Cave why she sent photographs of herself “to several other men.” Cave replied, “I don‘t know about several.” The prosecutor then moved on to another line of questioning.
Cave‘s testimony about her relationship with Virger opened the door for the State to rebut her claims with evidence that she was pursuing other men. See
9. Cave contends that the trial court erred by excluding testimony from an expert witness that Cave has battered person’s syndrome (BPS) and post-traumatic stress disorder (PTSD).9 We disagree.
(a) A week before the trial began, Cave filed a notice of her intent to present the expert testimony of Dr. Marti Loring “under the authority of Pickle v. State, 280 Ga. App. 821 (635 SE2d 197) (2006) and for the purposes set forth in that opinion.”10 Cave‘s notice attached Dr. Loring‘s “psychological
At a pretrial motions hearing later that day, Cave said that Dr. Loring would testify that Cave did not “act unreasonably” by failing to obtain medical assistance for Diarra in light of the physical abuse Cave had suffered. Cave asserted that the BPS and PTSD evidence provided a “comprehensive defense” that would “explain her conduct and . . . negate mens rea” and would also support her affirmative defense that Virger coerced her to commit the crimes.11 Cave added that Dr. Loring‘s testimony would explain “why [Cave] acted,” “why she did what she did.” Later, when the court asked if Cave was offering the expert testimony on her “frame of mind” as a “mental-health defense,” Cave replied, “That‘s correct, Judge.” After a lunch break, when the court asked Cave to clarify if she was offering the BPS evidence “to show she lacked the requisite
The following day, the trial court issued an order granting the State‘s motion to exclude Dr. Loring‘s testimony, explaining that expert evidence of BPS is admissible only to assist the jury in evaluating a claim of self-defense, which was not an issue in this case. Citing this Court‘s decision in Thompson v. State, 295 Ga. 96 (757 SE2d 846) (2014), the court also ruled that evidence of diminished mental capacity that does not rise to the level of insanity is inadmissible to support other defenses or to negate mens rea.
After Cave testified at trial, she “renew[ed] [her] request” to allow Dr. Loring to testify, arguing that the testimony would “explain the evidence [that had] been introduced by the State” and “[Cave‘s] conduct in the context of this trial.” Cave also briefly mentioned that the expert testimony could explain voicemail and text messages between Cave and Virger. The court said that it was satisfied with its previous ruling, adding that Cave had never admitted that she harmed Diarra. However, the court allowed Cave to extensively proffer Dr. Loring‘s testimony outside the presence of the jury. Cave did not ask the trial court to reconsider its ruling after the proffer.
(b) In Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981), this Court
In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section [defense of self or others], the defendant, in order to establish the defendant‘s reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
(1) Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19-13-1 and 19-15-1, respectively; and
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert’s opinion.
Since then, we have clearly and consistently held that the only defense theory that BPS is admissible to support is a justification defense based on self-defense against the victim. See Smith v. State, 268 Ga. 196, 199 (486 SE2d819) (1997) (“It has long been the position of this Court that the battered person syndrome is not a separate defense, but that evidence of battered person syndrome is relevant in a proper case as a component of justifiable homicide by self-defense.”). See also Demery v. State, 287 Ga. 805, 809 (700 SE2d 373) (2010) (reiterating that BPS “is not a separate defense but is ‘an evidentiary component of the defense of justification’” (quoting Smith, 268 Ga. at 199)); Mobley v. State, 269 Ga. 738, 739 (505 SE2d 722) (1998) (explaining that “‘[e]vidence of past physical abuse is admissible for the limited purpose of illustrating that [the] defendant had a reasonable belief in the imminence of additional physical abuse at the hands of the victim and that, therefore, she was presently justified in acting in self-defense’” (quoting Smith, 268 Ga. at 199)).
In this case, as the trial court recognized, Cave did not assert a claim of self-defense — nor could she, as she was obviously under no threat from the 13-month-old victim. See
Georgia‘s appellate courts have similarly rejected attempts to extend the use of evidence regarding the defendant‘s BPS or other psychological conditions
(c) Cave contends that the expert testimony was nevertheless admissible because it would have explained to the jury her “conduct” after Virger beat Diarra. During the trial, when Cave renewed her request to allow Dr. Loring‘s testimony after Cave testified, she also asserted generally that the expert would explain text and voicemail messages between Cave and Virger. During the subsequent proffer, Dr. Loring testified about how “nasty text messages” may be typical between an individual with BPS and her abuser. That and similar pieces of testimony might have been admissible for the sole purpose of explaining Cave‘s behavior in order to support her credibility as a witness. See, e.g., Horne v. State, 333 Ga. App. 353, 355 (773 SE2d 467) (2015) (explaining that expert testimony about BPS may be relevant to explain why the victim recanted her allegations of abuse against the defendant).
But that was not clearly the purpose for which Cave offered the evidence when she “renew[ed]” her request to admit Dr. Loring‘s testimony. Cave did
In that motion and the lengthy pretrial hearing on the issue, Cave repeatedly argued to the trial court, relying on Judge Barnes’s solo opinion in Pickle, that Dr. Loring‘s testimony would present a “comprehensive defense” that would “negate criminal intent as to all the counts.” Cave mentioned “conduct” only in the context of asserting that the BPS evidence would “explain her conduct and negate mens rea.” Thus, as Cave expressly acknowledged to the trial court — and as Cave‘s counsel acknowledged again at oral argument before this Court — the purpose of the expert evidence was to negate the intent elements of the crimes with which she was charged. Cave wanted Dr. Loring
As we recently reiterated, evidence of a criminal defendant‘s mental disability at the time of the alleged offense may be admissible to support the defenses of insanity, see
As we recognized in Thompson,
Georgia takes a more restrictive position on this issue than many other jurisdictions, where the admission of evidence relating to a defendant’s deficient mental condition to support defenses other than those based on diminished mental capacity or to negate a required element of a crime has been authorized by statute or judicial decision in at least some circumstances.
295 Ga. at 100 (citing Paul H. Robinson et al., Criminal Law Defenses, Vol. 1, § 64 (a) (2013)). We are not alone, however, in our adherence to the traditional position on this issue.
For example, in State v. Mott, 931 P2d 1046 (Ariz. 1997), the defendant was charged with murder and child abuse based in part on not taking her daughter to a hospital after her boyfriend beat the child, who later died. See id. at 1048-1049. The trial court excluded expert evidence on BPS offered to show that the defendant could not have formed the requisite intent to commit the crimes. See id. at 1049. In affirming that ruling, the Arizona Supreme Court explained that the state‘s legislature had not adopted the defense of diminished capacity and the state‘s courts had consistently rejected such a defense, refusing to allow psychiatric testimony offered to negate intent. See id. at 1050-1057.
If Georgia‘s longstanding law is to be changed to allow the admission of expert testimony in criminal cases to negate intent or otherwise support a mental capacity defense other than the ones now authorized by statute, that change
10. Shortly after the trial court issued its order excluding Dr. Loring‘s expert testimony, Cave filed a motion for a continuance on the ground that she needed more time to prepare her defense. But the court had already granted a continuance motion that Cave filed two months earlier, and she has not shown or even asserted what additional evidence she would have presented had the court granted her a second continuance. See Phoenix v. State, 304 Ga. 785, 789 (822 SE2d 195) (2018) (“To show harm [from the denial of a continuance], [the defendant] is required to specifically identify what other evidence or witnesses [s]he would have put forth in [her] defense if [her] counsel had been given more time to prepare; speculation and conjecture are not enough.” (citation omitted)).
Judgments affirmed. All the Justices concur.
Murder. Douglas Superior Court. Before Judge Emerson.
Miller & Key, J. Scott Key, Kayci N. Timmons, for appellant (case no. S18A1538).
James K. Luttrell, for appellant (case no. S18A1539).
Ryan R. Leonard, District Attorney, Sean A. Garrett, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
Notes
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.