CURRIER v. The STATE.
Appellant Shawn Hollis Currier seeks appellate review of his convictions for felony murder and related crimes stemming from the death of David Buriles.1 For the reasons set forth below, we affirm.
1. Appellant alleges the evidence at trial was insufficient to support his convictions. “The relevant inquiry on appeal challenging the sufficiency of the evidence is whether the evidence, viewed in a light most favorable to the verdict, would authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which [he] is charged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Cutrer v. State, 287 Ga. 272, 274, 695 S.E.2d 597 (2010).” Lowe v. State, 288 Ga. 662(1), 706 S.E.2d 449 (2011). Here, the evidence viewed in a light most favorable to the verdict shows that about a week prior to the incident, appellant and his co-defendant Jasmine Jermine Hillsman were overheard by the co-defendant's brother Kendrick Hillsman (Kendrick) talking about the victim and saying “something bad might happen” if “people” did not keep their mouths closed. On December 21, 2006, the victim, appellant, the co-defendant, and Kendrick were at appellant's trailer home talking and drinking alcohol. At trial, Kendrick testified the victim hit appellant and, in response, appellant put the victim in a “full Nelson” wrestling hold, keeping the victim in place while the co-defendant punched the victim in the face. Kendrick says he yelled at appellant to break the fight up and, when appellant did not do so, he left the trailer because he thought the fight was “too rough.” When Kendrick returned about twenty minutes later, the co-defendant was standing outside the trailer, appellant was gone, and the victim was inside the trailer lying unconscious on the floor with blood coming out of his nose. The co-defendant's written statement to police, which was admitted into evidence at trial and read aloud to the jury, confirmed that appellant and the co-defendant fought with the victim and that a punch codefendant landed to the victim's nose caused the victim to pass out. Two female acquaintances of the Hillsman brothers arrived at appellant's trailer. One of the women requested that the victim be sat upright. When Kendrick and the codefendant sat the victim upright, the woman testified that she listened to the victim's chest and noted that he was breathing, although she heard a rattle in his chest. She stated the victim was also making noises and mumbling. Deciding the victim did not need medical attention, Kendrick, the co-defendant, and the two women left the trailer. Later on, appellant called the co-defendant and told him the victim was dead. Appellant's neighbor testified that appellant called and asked him to come over. When the neighbor arrived, appellant told him he had killed the victim, showed him the victim's body, asked him what should be done with the body, and the neighbor told appellant to call the police. Appellant then asked the neighbor to help him dispose of the body. The neighbor declined and, as he was leaving, again told appellant to call the police. Rather than contact the authorities, appellant dumped the victim's body into a well and had the victim's car towed to a junk yard where he sold it for scrap. A few days later, appellant told the neighbor what he had done with the body and the car.
The victim's family reported him missing on December 24, 2006. When one of the women who had been at the trailer on the night of the fight saw the victim's missing person poster, she came forward with the information which eventually led to the arrests of appellant and his co-defendant. Authorities found the victim's blood on carpet samples taken from appellant's trailer. When questioned by a sheriff, appellant initially denied knowing anything about the victim's whereabouts, but he eventually admitted to disposing of the body. Authorities recovered the body on January 21, 2007. The medical examiner testified that the victim's body was too decomposed to determine the actual manner of death,2 but he concluded the official cause of death was “homicidal violence of undetermined etiology.” He noted the victim had a broken nose which was consistent with blunt force trauma, but he said that such injury was not life threatening.
Appellant argues that because the medical examiner could not specifically identify the cause of the victim's death and because the medical examiner stated the victim's broken nose was not a fatal injury, the State failed to show that the aggravated assault underlying the felony murder charge3 caused the victim's death and the evidence is therefore insufficient to sustain his conviction of felony murder. We disagree. When construing Georgia's felony murder statute,4 this Court has held that causing the death of another human being means proximate causation. State v. Jackson, 287 Ga. 646(2), 697 S.E.2d 757 (2010). “Proximate causation imposes liability for the reasonably foreseeable results of criminal ․ conduct if there is no sufficient, independent, and unforeseen intervening cause.” Id. at 654, 697 S.E.2d 757. We consider the elements of the felony not in the abstract, but in the actual circumstances in which the felony was committed. Davis v. State, 290 Ga. 757, 760(4), 725 S.E.2d 280 (2012). Here it was reasonable to foresee that the victim could be fatally wounded upon receiving a beating from which he could not extricate himself because he was being held in place by appellant. The medical examiner's testimony was only one aspect of the State's case and could not be considered in isolation. “Pretermitting whether the doctor's expert opinion itself would support a conviction, it is not the doctor's expert opinion ․ alone, but the totality of the evidence that must be sufficient to convince the trier of fact ‘beyond a reasonable doubt.’ “. Irby v. State, 260 Ga. 401, 403(1), 396 S.E.2d 210 (1990). Here, based on the total factual circumstances of this casenamely that appellant and his co-defendant made threatening remarks about the victim days before his death, that appellant participated in the aggravated assault which rendered the victim unconscious at one point, that the victim died within a short time after the assault, that appellant made admissions to two people that he had killed the victim, and that appellant admittedly concealed the body—a rational trier of fact was authorized to find appellant guilty beyond a reasonable doubt of felony murder in spite of the fact that the medical cause of death was undeterminable due to the body's decomposition. See State v. Jackson, supra, 287 Ga. at 662–663, n. 2, 697 S.E.2d 757. Cf. Richardson v. State, 276 Ga. 548(1), 580 S.E.2d 224 (2003) (evidence sufficient to convict the defendant of murder even in the absence of the victim's body). Accordingly, this enumeration of error cannot be sustained.
2. Appellant alleges counsel rendered constitutionally ineffective assistance when he failed to object to an allegedly erroneous jury charge. In order to prevail on a claim of ineffective assistance of counsel, appellant
must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4) (644 S.E.2d 837 (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012).
Pursuant to the request of appellant, the trial court gave the following charge on involuntary manslaughter:
I charge you that if you do not believe beyond a reasonable doubt that [defendants] are guilty of the offense of felony murder as outlined in [the] indictment but do believe that they are guilty, either/or [sic] both of them are guilty of the lesser included offense of involuntary manslaughter, I will charge you as to that․ [A] person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony, in other words a misdemeanor.[ 5]
If you find and believe beyond a reasonable doubt that [either defendant is] guilty of the offense of involuntary manslaughter as I have just defined for you, the form of your verdict would be we, the jury, find the [d]efendants guilty of the offense of involuntary manslaughter․ [Y] ou would only be authorized to consider that if you believe that they are not guilty of the offense of felony murder. You have to consider the felony murder charge first. If you find them not guilty, then you would be authorized to consider the charge on involuntary manslaughter. If you do so—do consider that and find that under all the evidence and testimony along with the instruction of [t]he [c]ourt that there is a reasonable doubt or if you do not believe they are guilty or there is a reasonable doubt as to their guilt to the offense of involuntary manslaughter, the form of your verdict would be ․ we, the jury, find the [d]efendants not guilty of the offense of involuntary manslaughter.
Several charges later, the trial court gave the following instruction on rendering a unanimous verdict:
Whatever your verdict is, it must be unanimous; that is, it must be agreed by all twelve of you.
After the jury had deliberated for a while, it asked a few questions and the trial court gave the following recharge on involuntary manslaughter:
A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. Other than a felony means a misdemeanor. And in that regard, both simple battery and battery are misdemeanor charges.
Now, before you can consider involuntary manslaughter in this case, you have to first address the felony murder charge, and you have to make a decision as to the felony murder charge. If you were to find there's a reasonable doubt as to the felony murder or if you find that either or both of the [d]efendants not guilty of the felony murder, then you'd be authorized to consider involuntary manslaughter․[I]f you were to find the [d]efendants guilty of the felony murder charge, you wouldn't even consider the involuntary manslaughter at all. That's only if you find them not guilty or if there's a reasonable doubt as to their guilt, then you would consider the involuntary manslaughter.
When the jury later asked whether someone could be convicted of aggravated assault coupled with involuntary manslaughter, the trial court stated they could not. The trial court further clarified:
The felony murder [charge] is predicated upon an underlying felony, and in this case an aggravated assault. Now, aggravated assault is charged as a separate count in this indictment in Count Three. So conceivably you could find somebody guilty of aggravated assault and nothing else, but you cannot find somebody guilty of felony murder without the underlying aggravated assault having been found.
Also as to the involuntary manslaughter, just like felony murder is predicated on an underlying felony, the involuntary manslaughter is predicated upon a misdemeanor. In this case ․ it was either battery or simple battery would give rise to the involuntary manslaughter charge. But, once again, you don't consider that until you've reached a decision as far as the felony murder charge is concerned. If you have found somebody guilty of felony murder, then you don't go any further with the involuntary manslaughter because it doesn't apply. That is what we call a lesser included offense. You can't find them guilty of both; it would have to be one or the other or neither.
Appellant argues counsel was deficient for failing to object to the instructions on involuntary manslaughter followed by the instruction on a unanimous verdict because he contends the jurors would have believed they had to be unanimous that appellant was not guilty of felony murder before they considered the issue of involuntary manslaughter during their deliberations. On appeal, this Court reviews jury charges as a whole to determine whether there is any error. DeLeon v. State, 289 Ga. 782(3), 716 S.E.2d 173 (2011). Here, the instruction on unanimity spoke only to the jury's final verdict and did not concern its deliberations. The instructions merely prevented the jury from rendering a verdict that included both felony murder and involuntary manslaughter. Since the jury instructions were not erroneous, counsel was not deficient for failing to make an objection that lacked merit. Duvall v. State, 290 Ga. 475(2)(b), 722 S.E.2d 62 (2012) (counsel not deficient for making objections that would have lacked merit). As such, the trial court properly denied appellant's ineffective assistance.
3. Finally, appellant contends the trial court erred when it determined that his in-custody statement to police was voluntary and not induced by a hope of benefit.6 The record shows appellant made a video-recorded statement to Madison County Sheriff Clayton Lowe during the investigation of the victim's disappearance. During the pre-trial Jackson–Denno7 hearing, the trial court heard testimony from Sheriff Lowe and heard the audio track of the interview. Based on that evidence, the trial court ruled that the statement was admissible. Appellant contends the trial court erred because Sheriff Lowe gave him a hope of benefit when he told appellant “by not confessing” he would be letting himself get charged for murder and when he told appellant that all he could be charged with was concealing a dead body.
Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. OCGA § 24–3–50 requires that an admissible confession must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. The promise of a hope or benefit that will render a confession involuntary under OCGA § 24–3–50 must relate to the charge or sentence facing the suspect. Generally, the “hope of benefit” to which the statute refers has been construed as a hope of lighter punishment.
Wilson v. State, 285 Ga. 224, 227(3), 675 S.E.2d 11 (2009) (quotations and citations omitted).
We have reviewed appellant's video-recorded statement to Sheriff Lowe. At the time of the interview, appellant was in jail on an unrelated probation violation. Sheriff Lowe read appellant his Miranda8 rights before questioning began. Throughout the approximate 45–minute interview with Sheriff Lowe, appellant maintained that, although there had been a fight involving the victim, he did not kill the victim. In fact, appellant initially stated that the fight occurred inside his trailer while he was away,9 and that the victim was not there when appellant came back home. Sheriff Lowe advised appellant that the evidence authorities had gathered suggested appellant was present at the scene. Sheriff Lowe then started questioning appellant as to whether he came home, found the body and then got rid of it in a panic, stating to appellant that he would be in less trouble for concealing the body, and that if appellant said nothing to help himself he was looking at more trouble because other witnesses were pointing their fingers at him for the victim's death. Appellant continued to deny being involved or knowing of the victim's whereabouts. Sheriff Lowe subsequently made a statement to the effect that there was a difference between a charge of concealing a death and “catching” a murder charge and that no one was going to come after appellant for getting rid of a dead body he found in his home. Appellant then asked Sheriff Lowe what “guarantee” he would have if he told where “them boys” had hidden the body and Sheriff Lowe responded that he would tell the district attorney and the judge that appellant had cooperated. Appellant asked what he could be charged with if he was to tell what had been related to him about the body's whereabouts and the Sheriff responded the most appellant could be charged with would be disposing of a body. Thereafter, appellant spent several minutes describing where the Hillsman brothers allegedly told him the body was located and, after a while, he drew a map based on what he purportedly had been told about the body's location.
After he finished drawing the map, appellant again told Sheriff Lowe the victim was not at his house when he came home that night. A few minutes later, Sheriff Lowe said, “Why don't you just tell me what happened, ․ so we can get out of here.” In response, appellant asked for a lawyer and then said he did not want one. Sheriff Lowe clarified that appellant did not want a lawyer. Appellant then made the following admission: that he was at home, that the Hillsman brothers and the victim were at his trailer drinking, that the victim got into a fight with the co-defendant, that the co-defendant had the victim in a headlock and that they tumbled into the other side of the trailer, that appellant tried to break up the fight, that the victim was passed out on the floor, that the Hillsman brothers left his trailer, and that he disposed of the body when he realized the victim was deceased and not merely passed out. After his admission, appellant added more detail to the map he had previously drawn. Sheriff Lowe again stated he would tell authorities that appellant had cooperated and concluded the interview.
When viewed in the totality of the circumstances, Sheriff Lowe did not offer appellant a lighter charge or sentence in exchange for his admission to disposing of the victim's body. Rather, appellant voluntarily made his statement in direct response to Sheriff's Lowe's exhortation to tell the truth. Id. at 228 (“Exhortations to tell the truth are not a hope of benefit․”) Accordingly, the trial court did not err when it admitted appellant's statement to Sheriff Lowe at trial. Id.
All the Justices concur.