Opinion
S11A1663
02-06-2012
NEAL v. THE STATE.
, Presiding Justice.
A jury found Eugene Neal guilty of the malice murder of his fiancee Dorothy Driskell. The trial court entered judgment of conviction on that guilty verdict and sentenced Neal to life imprisonment. After a motion for new trial was denied, Neal appealed to the Court of Appeals, which transferred the case to this Court. See State v. Murray, 286 Ga. 258 (687 SE2d 790) (2009); State v. Thornton, 253 Ga. 524 (1) (322 SE2d 711) (1984).
The crime occurred on August 17, 2006, and the grand jury returned an indictment on March 9, 2007. The jury found Neal guilty on October 31, 2008 and, on that same day, the trial court entered the judgment of conviction and sentence. The motion for new trial was filed on November 6, 2008, amended on October 1, 2010 and December 10, 2010, and denied on February 4, 2011. Neal filed the notice of appeal on February 25, 2011, and the Court of Appeals transferred the case on July 1, 2011. The case was docketed in this Court for the September 2011 term and orally argued on January 24, 2012.
1. Construed most strongly in support of the verdict, the evidence shows that, in the master bedroom of his house, Neal placed the victim in a chokehold until she passed out. The medical examiner testified that the cause of death was manual strangulation with significant force for at least four minutes. In a statement at the scene and during his testimony, Neal stated that the victim attacked him out of jealousy and bit him and that he was defending himself. However, Neal admitted that he kept the victim in a chokehold until she stopped struggling and that she fell to the floor when he let go. No drugs or alcohol was found in the victim's blood. About 13 years before, Neal choked his then-wife, and there were several other instances of physical abuse by Neal during that marriage.
Neal argues that the evidence was insufficient to prove beyond a reasonable doubt that the cause of the victim's death was any act or omission by Neal instead of the severing of her jugular vein by emergency medical personnel during intubation. However, the testimony shows that the emergency personnel actually punctured the jugular vein while attempting to start an I.V. line and that such a puncture was normal in the circumstances. (T. 545-547) There is no evidence that the medical treatment by emergency personnel was negligent. Even if it were negligent, it would not normally constitute an intervening cause unless, unlike here, it was a gross mistreatment. Robert E. Cleary, Jr., Ga. Criminal Offenses and Defenses, Homicide (I) (D) (2011 ed.). See also Hendrick v. State, 257 Ga. 17, 18 (5) (354 SE2d 433) (1987); 1 Wayne R. LaFave, Substantive Criminal Law § 6.4 (f) (5) (2d ed.).
Contrary to Neal's summary of the medical examiner's testimony, that witness testified that blood in the victim's neck muscles may have come from the punctured vein, but that the blood in her lungs did not. (T. 568-569) Although the medical examiner did not "think" that the bleeding from that vein contributed to the victim's death, he testified that there was not enough blood from the vein for the victim to bleed to death. (T. 571-572) Based on the medical examiner's testimony, a rational jury could conclude that Neal's strangulation of the victim either caused or directly and materially contributed to her death and that the emergency treatment was at most a secondary, rather than intervening, cause of death. See Green v. State, 266 Ga. 758, 760 (2) (b) (470 SE2d 884) (1996); Bishop v. State, 257 Ga. 136, 140 (2) (356 SE2d 503) (1987); Larkin v. State, 247 Ga. 586 (1) (278 SE2d 365) (1981). In short, the jury was authorized to reject the theoretical possibility of causation offered by Neal. See Shields v. State, 285 Ga. 372, 375 (1) (677 SE2d 100) (2009).
We conclude that the evidence was sufficient to enable a rational jury to find beyond a reasonable doubt that Neal was guilty of murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Neal contends that the trial court erred in admitting, over defense objections, evidence of allegedly similar transactions involving his ex-wife and occurring a decade or more before the victim's death here.
Both the prior transactions and the murder in this case involved violent assaults by Neal against women with whom he was intimately involved.
[T]hey involved acts of violence that were either entirely unprovoked or disproportionate to any provocation. Moreover, "(i)n cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment." [Cit.]Hall v. State, 287 Ga. 755, 757 (2) (699 SE2d 321) (2010). The similar transactions were offered to prove intent, bent of mind, course of conduct, and common scheme or plan. (R. 374, MT. 11) "When similar transaction evidence is admitted for these purposes, a lesser degree of similarity is required than when such evidence is introduced to prove identity. [Cits.]" Smith v. State, 273 Ga. 356, 357 (2) (541 SE2d 362) (2001). See also Abdullah v. State, 284 Ga. 399, 401 (3) (667 SE2d 584) (2008). Furthermore, the lapses of time of up to 13 years
between the prior incidents and the crime[] at issue here do not require exclusion of the evidence. [Cits.] Given that the similar transaction evidence reflects [Neal's] behavior towards prior spouses, we conclude that any prejudice from the age of these prior incidents was outweighed by the probative value of the evidence under the particular facts of this case and the purpose for which the similar transactions were offered. [Cit.]Hall v. State, supra. Moreover, "[w]e find no merit in [Neal's] contention that the similar transaction evidence was overly prejudicial, as the trial court gave detailed limiting instructions [before] it was admitted and at the close of the case. [Cit.]" Rivera v. State, 282 Ga. 355, 359 (3) (647 SE2d 70) (2007).
"Because the evidence was sufficient to establish the required similarity between the charged crime[] and the [assaults Neal] inflicted on [his ex-wife], the trial court did not abuse its discretion by admitting this evidence." Hall v. State, supra.
3. Immediately after charging the jury on self-defense in the language of OCGA § 16-3-21 (a), the trial court, using the language of subsection (b) (3) almost verbatim, gave the following additional charge:
A person is not justified in using force if that person was the aggressor or was engaged in a combat by agreement, unless the person withdraws from the encounter and effectively communicates his intent to withdraw to the other person, and the other person still continues or threatens to continue the use of unlawful force.(T. 856) The giving of this charge is enumerated as error on the basis that there was not sufficient evidence that Neal was the first aggressor.
"Where an instruction closely tracks the language of OCGA § 16-3-21[(a) and (b)], as the charge in this case does, giving that instruction is not harmful, even when the exceptions described by subsection (b) do not apply. [Cit.]" Reese v. State, 270 Ga. App. 522, 524 (3) (607 SE2d 165) (2004). See also Lee v. State, 265 Ga. 112, 113-114 (3) (a) (454 SE2d 761) (1995); Jolley v. State, 254 Ga. 624, 628 (4) (331 SE2d 516) (1985); Hayles v. State, 287 Ga. App. 601, 603 (1) (c) (651 SE2d 860) (2007). In the cited cases, the trial court apparently instructed the jury on every exception to self-defense contained in subsection (b), and the defendant contended that either none or only one of them was applicable. In the case now before us, the trial court's instruction encompassed only the third exception in subsection (b) and therefore was more clearly harmless than the charges in the above-cited cases which included all of the exceptions in subsection (b) and which nevertheless did not constitute reversible error. Assuming that there was no evidence that Neal was the aggressor, the charge on OCGA § 16-3-21 (b) (3) "was at most merely irrelevant, being one of a number of stated exceptions to the rule concerning the use of force in self-defense." Hill v. State, 155 Ga. App. 718, 719 (1) (272 SE2d 508) (1980). See also Lowe v. State, 267 Ga. 410, 413 (4) (478 SE2d 762) (1996).
Moreover, the trial court not only instructed the jury on self-defense as set forth in subsection (a), it also fully charged on the doctrine of reasonable fears, on the absence of a duty to retreat, and on the State's burden of proving beyond a reasonable doubt that the defendant was not justified. (T. 855-857)
The true question is whether an abstractly correct charge not authorized by the evidence is calculated to confuse and mislead the jury. . . . [W]here it is obviously highly probable that the error, if existing, did not contribute to the verdict, a reversal will not result. [Cits.] Taking the charge as a whole we find no reversible error.Hill v. State, supra. See also Lowe v. State, supra; Martin v. State, 164 Ga. App. 500 (3) (297 SE2d 112) (1982).
4. Neal further contends that his trial counsel rendered ineffective assistance by failing to present readily available testimony by his ex-girlfriend regarding his peaceful history, nature, and character.
In order to succeed on [his] claim of ineffective assistance, [Neal] must prove both that [his] trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 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. [Cits.] In reviewing the trial court's decision, "'(w)e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' (Cit.)" [Cit.]Smith v. State, 288 Ga. 348, 352 (8) (703 SE2d 629) (2010).
Neal argues that testimony by his ex-girlfriend would have rebutted the similar transaction evidence which suggested a character for and predisposition to violence by Neal in such relationships. However, "'[w]hether to introduce character evidence and potentially open the door for impeachment is clearly one of tactics and strategy.' [Cit.]" Smith v. State, supra at 354 (8) (i). See also Washington v. State, 276 Ga. 655, 659 (3) (c) (581 SE2d 518) (2003). Trial counsel testified that testimony regarding Neal's peaceful character would have opened the door to additional adverse character evidence which had been excluded by the trial court, including the testimony of another ex-girlfriend who was present and ready to testify about Neal's bad character. (MNT. 15-16) The prior admission of a similar transaction from which the jury may draw certain limited inferences does not make unreasonable defense counsel's strategy to avoid offering testimony of the defendant's nonviolent character which would open the door to additional adverse character evidence. See Cook v. State, 255 Ga. 565, 584-585 (17) (g) (340 SE2d 891) (1986). Even assuming that
trial counsel's decision not to call character witnesses on [Neal's] behalf [w]as ill-advised and based on an evaluation of the evidence which hindsight shows to be incorrect, we nevertheless regard that decision as being a matter of trial strategy, which, even if erroneous, does not itself constitute a denial of effective assistance of counsel. [Cits.]Johnson v. State, 266 Ga. 380, 382 (2), fn. 3 (467 SE2d 542) (1996).
Judgment affirmed. All the Justices concur.
NAHMIAS, Justice, concurring.
For more than 27 years, this Court has directed that all murder cases, not only those "in which a sentence of death was imposed or could be imposed," Ga. Const. of 1983, Art. VI, Sec. VI, Par. VIII (a), will be reviewed directly by this Court, instead of the appeal going first to the Court of Appeals. See State v. Thornton, 253 Ga. 524, 524 (1) (322 SE2d 711) (1984). As a result of the Thornton order, this Court has decided the direct appeal of thousands of murder cases, which indeed are the single largest category of our published decisions. Remarkably, however, the Court has never identified the constitutional source of its authority to decide direct appeals of non-capital murder cases.
That silence continues today, despite Neal's concerted efforts to have his murder conviction reviewed by the Court of Appeals. He originally filed his appeal in that court, and after the appeal was transferred here pursuant to Thornton, he moved to have the case returned to the Court of Appeals. We denied that motion, but neither in that unpublished order nor in today's published opinion does the Court identify any constitutional authority for deciding this case as a direct appeal. The Court cites only Thornton and State v. Murray, 286 Ga. 258, 259 (687 SE2d 790) (2009), which hold that we will decide all murder-related direct appeals, but in neither of those cases did the Court's opinion discuss any constitutional basis for this broad assertion of jurisdiction.
Thornton held that the Court's direct jurisdiction over death penalty cases, as set forth in the 1983 Georgia Constitution, is not applicable to murder cases in which the State has not given timely notice that it intends to seek the death penalty. See 253 Ga. at 524. Indeed, the Thornton Court held that "this [murder] appeal was filed properly in the Court of Appeals." Id. Nevertheless, Thornton ordered the Court of Appeals to transfer all future murder appeals to the Supreme Court "[a]s a matter of policy" - citing no constitutional authority for that order nor explaining what policy was at issue. Id.
A decade later, in Rhyne v. State, 264 Ga. 176 (442 SE2d 742) (1994), the Court unanimously reiterated Thornton's holding that our Constitution gives the Court of Appeals jurisdiction over direct appeals of non-capital murder cases. There the defendant's appeal of a claim arising from his non-capital murder case was first filed in and affirmed by the Court of Appeals, with this Court denying certiorari; he then "renewed" the claim and tried to appeal it again, this time to the Supreme Court under Thornton. See id. at 176-177. The Court held that the prior judgment was the law of the case, explaining that, "[a]lthough the Court of Appeals may not have followed the holding of Thornton when it failed to transfer appellant's former appeal to this court, the Court of Appeals was not without jurisdiction under our constitution to consider the merits thereof." Id at 177. But again the Court said nothing about the source of its constitutional authority to decide direct appeals in the murder cases that are transferred here pursuant to Thornton.
In 1999, then-Chief Justice Benham argued that "the time has come for this Court to comply with the change in its appellate jurisdiction in non-capital murder cases brought about by passage of the 1983 Georgia Constitution" by vacating the Thornton order and holding that direct appeals of non-death penalty murder cases be decided by the Court of Appeals. Weatherbed v. State, 271 Ga. 736, 739-740 (524 SE2d 452) (1999) (Benham, C.J., concurring specially). But no other Justice signed on to that view.
Two years ago in Murray, the Court reiterated the Thornton order, and the majority held that even the appeal of a collateral order of contempt against a prosecutor handling a murder case was properly filed in this Court. See 286 Ga. at 259. In an opinion dissenting on that point, I also discussed the jurisdictional question and concluded that the Thornton order may be defended as a "categorical exercise of our longstanding and almost-unlimited certiorari jurisdiction." Murray, 286 Ga. at 266 (Nahmias, J., dissenting). See Ga. Const. of 1983, Art. VI, Sec. VI, Par. V. In a concurring opinion, Presiding Justice Carley noted my position and also suggested (without mentioning Thornton's contrary holding or his opinion in Rhyne) that our jurisdiction over death penalty cases may be broad enough to cover all murder cases. See Murray, 286 Ga. at 259-260 (Carley, P.J., concurring). However, no other Justice joined either of those opinions or endorsed any constitutional source for our direct jurisdiction over murder cases.
In sum, of the current members of this Court, I have said that we may have extraordinary certiorari jurisdiction over all murder appeals; another Justice has suggested that we may have death penalty jurisdiction; and a third Justice once said that we no longer have jurisdiction over these appeals. But in no case has a majority of the Supreme Court of Georgia ever explained where we get the constitutional authority to decide the largest portion of our opinion docket - non-capital murder cases that a unanimous Court, which included four of the current Justices, held are within the constitutional jurisdiction of the Court of Appeals. See Rhyne, 264 Ga. at 177. See also Ga. Const. of 1983, Art. VI, Sec. V, Par. III ("The Court of Appeals shall be a court of review and shall exercise appellate . . . jurisdiction in all cases not reserved to the Supreme Court . . . .").
I can concur in the Court's opinion today pursuant to my separate opinion in Murray, but I believe it is incumbent to note this jurisdictional anomaly and to once again urge the Court to address it. See In the Interest of K.R.S., 284 Ga. 853, 853 (672 SE2d 622) (2009) ("It is incumbent upon this Court to inquire into its own jurisdiction, regardless of whether the issue of jurisdiction is raised by the parties."). As Justice Melton recently reiterated in Reeves v. Newman, 287 Ga. 317 (695 SE2d 626) (2010), "[t]his Court has a duty to resolve any questions about its jurisdiction over any given case where doubt may exist." Id. at 317-318. There is no doubt that we have ordered the Court of Appeals to transfer all murder appeals to this Court, and there is no doubt that we have decided those direct appeals, but as just demonstrated, considerable doubt exists about this Court's constitutional jurisdiction to do so.
This appellant in particular is owed an explanation, because he expressly asked for his case to be reviewed in the first instance by the Court of Appeals so that he would have the opportunity for the two levels of appellate review that the Constitution provides for "all cases not reserved to the Supreme Court," rather than only the one level of review allowed by our Thornton order. He also makes the interesting point that if our jurisdiction is based, constitutionally or as a "matter of policy," on the ground that the life-sentence aspect of these murder cases gives them particular gravity, then we should also require that the appeals of many other criminal cases in which a life sentence is imposed come directly to this Court.
Finally, while the Court may rely on precedent rather than constitutional analysis to take direct jurisdiction of this murder appeal (and about a hundred more every year), the constitutional answer has real consequences. If we have no constitutional authority to decide non-capital murder appeals, then we must stop doing it. If such appeals come within our death-penalty jurisdiction, then we must continue to decide them unless the General Assembly provides otherwise or the Constitution is amended. But if we decide these cases as an extraordinary exercise of our certiorari jurisdiction, then this Court has the discretion to decide whether and to what extent to continue this practice, and in particular to consider whether the policies that may have supported the Thornton order in 1984 have the same force today. Why we decide cases seems like an important thing for an appellate court to know, and to say.