Alvelo v. State

• Decision Date: 27 February 2012
• Docket Number: No. S11A1979.,S11A1979.
• Parties: ALVELO v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 592

290 Ga. 609

724 S.E.2d 377

ALVELO

v.The STATE.

No. S11A1979.

Supreme Court of Georgia.

Feb. 27, 2012.

Steven L. Sparger, for appellant.

Larry Chisolm, Dist. Atty., Julayaun M. Waters, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Mary K. Ware, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Appellant Stephen Alvelo was convicted of the malice murder of Walter Cooper, the aggravated assaults and false imprisonments of Melissa Williams and Joey Freitag, possession of a knife during the commission of a crime, and concealing a death.¹ He brings this appeal from the trial court's denial of his amended motion for new trial, following this Court's remand of the case to the trial court. See Alvelo v. State, 288 Ga. 437, 704 S.E.2d 787 (2011).

Walter Cooper's body was found wrapped in a comforter under a mattress on the front porch of a house he shared with appellant and fellow victims Melissa Williams and Joey Freitag. The forensic pathologist who conducted the autopsy on Cooper testified that he died as a result of “multiple sharp force injuries,” some of which were consistent with having been inflicted with a knife found in the kitchen and some with having been inflicted with an object like the hatchet found at the scene. Ms. Williams testified that she and Freitag returned to the residence on August 11, 2006, to find appellant, with a “crazy” look in his eyes, cleaning up blood in the kitchen. Appellant grabbed a hatchet from a kitchen countertop and ordered Freitag and Williams to kneel on the floor. Armed with the hatchet, appellant approached Freitag and Williams and struck Williams on her head and her spine with the hatchet before she was able to wrest the weapon from him and flee the house. Freitag, whom Williams described as frozen with fear, testified that appellant grabbed him and yanked him down to the floor when Freitag did not obey the order to kneel. Freitag escaped from the house by jumping through a screened window during the struggle between Williams and appellant for control of the hatchet. Both Freitag and Williams testified that appellant was shirtless, and neither of them noticed any wounds on his exposed torso. Police and paramedics who responded to calls for emergency help discovered Cooper's body, and Ms. Williams identified the comforter in which Cooper's body was found as one that was kept in the laundry room.

Appellant told police in a recorded interview played for the jury that Cooper attacked him with appellant's ax and that appellant stabbed Cooper several times with a knife and, upon gaining control of the ax, used it to strike Cooper several times. A forensic specialist for the Savannah–Chatham Metropolitan Police Department testified and surmised, based on the blood-spatter patterns in the house, that the two men fought in the kitchen, where blood from both men was found; that, due to the large amount of blood found under the refrigerator, Cooper was incapacitated near the refrigerator; that, in light of a bloody transfer pattern on a cabinet in the laundry room adjacent to the kitchen, appellant had used a bloodied hand to open the cabinet and retrieve his hatchet which he then used to strike Cooper several times; that, due to bloody drag marks and the saturated blood in the comforter in which appellant was found, that appellant dragged Cooper's body on the comforter to the front porch and there placed the comforter and body under a mattress.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the malice murder of Cooper, the concealment of Cooper's death, the aggravated assaults and false imprisonments of Williams and Freitag, and the possession of a knife during the commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant argues that his conviction and sentence for the aggravated assault of Cooper should be vacated because the conviction merged as a matter of fact into the conviction for the malice murder of Cooper. The indictment charged appellant with assaulting Cooper with a knife and a hatchet, objects likely to result in serious bodily injury when used offensively against another. The malice murder count of the indictment charged appellant with causing Cooper's death with malice aforethought by use of a knife and a hatchet. As stated earlier, the forensic pathologist found the cause of death to be “multiple sharp force injuries.” The State argues the separate conviction for aggravated assault can survive because the forensic pathologist noted that the victim sustained both lethal and non-lethal injuries and the numerous wounds suffered by the victim were not inflicted in quick succession because the blood-spatter evidence established the victim suffered his injuries in several rooms of the house.

OCGA § 16–1–7(a) prohibits multiple convictions and punishments for the same offense ( Drinkard v. Walker, 281 Ga. 211, 212, 636 S.E.2d 530 (2006)), and subsection (a)(1) prohibits a defendant from being convicted of more than one crime if one crime is included in another. The crime of aggravated assault is included in the crime of malice murder when the former “is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the latter].” OCGA § 16–1–6(1). The aggravated assault that results in the victim's death merges as a matter of fact into the murder conviction. When a victim has sustained multiple wounds, the question arises whether one of the injuries is an aggravated assault separate and distinct from the assault that caused the victim's death.

When a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault. [Cit.] However, a separate judgment of conviction and sentence is authorized if a defendant commits an aggravated assault independent of the act which caused the victim's death. [Cit.] When a series of stab wounds are separated by a “deliberate interval” and a non-fatal injury is sustained prior to the interval and a fatal injury sustained after the interval, the earlier, non-fatal infliction of injury can serve to support a conviction for aggravated assault. [Cit.]

Culpepper v. State, 289 Ga. 736(2) (a), 715 S.E.2d 155 (2011). See also Mikell v. State, 286 Ga. 722(3), 690 S.E.2d 858 (2010); Coleman v. State, 286 Ga. 291(3), 687 S.E.2d 427 (2009). The forensic pathologist who conducted the autopsy catalogued the victim's wounds as “chop injuries” that fractured the victim's skull and incapacitated him and were likely inflicted with the hatchet, “punctures” and “superficial,” “deep,” and “very deep” incisions and stab wounds that were inflicted by knives. The pathologist did not testify as to the order in which the wounds were inflicted and did not describe any specific wound as being a fatal injury, concluding that the victim's cause of death was due to “multiple sharp force injuries.” In light of the pathologist's testimony and in the absence of evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack upon him, and a fatal injury thereafter, appellant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim. Accordingly, the conviction and sentence for aggravated assault of the murder victim must be vacated and the case remanded for resentencing. Cf. Culpepper v. State, supra, 289 Ga. 736, 715 S.E.2d 155; Mikell v. State, supra, 286 Ga. 722(3), 690 S.E.2d 858; Coleman v. State, supra, 286 Ga. 291(3), 687 S.E.2d 427.

3. At trial, appellant asserted he was not guilty by reason of insanity and on appeal contends the judgment of conviction should be overturned because he proved by a preponderance of the evidence he was insane at the time the crimes were committed.

In Georgia, a person is not legally insane simply because [he] suffers from schizophrenia or a psychosis. [Cit.] Rather, a defendant is not guilty by reason of insanity if, at the time of the criminal act, the defendant did not “have the mental capacity to distinguish between right and wrong in relation to such act” or a mental disease caused “a delusional compulsion that overmastered his will to resist committing the crime.” OCGA §§ 16–3–2, 16–3–3.

... When a delusional compulsion is the basis of an insanity defense, the delusion must be one that, if it had been true, would have justified the defendant's actions. [Cit.]... Defendants are presumed sane [cit.], and a defendant claiming insanity bears the burden to prove [his] insanity by a preponderance of the evidence. [Cit.]

Boswell v. State, 275 Ga. 689(1, 2), 572 S.E.2d 565 (2002). Appellant introduced his medical history that reflected a history of repeated hospitalization in mental health facilities, and the expert opinion of a clinical and forensic psychologist that appellant was psychotic and suffering from paranoid schizophrenia. The State presented the testimony of a forensic psychologist that appellant's efforts to clean up the blood and hide the body indicated appellant knew the wrongfulness of his actions, his statement to police that he acted in self-defense was a rational motive for appellant's escalating fight with Cooper, and that the expert saw no evidence appellant was delusional at the time of the crimes.

Because the jury rejected [appellant's] insanity defense at trial, we must determine on appeal “whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.” [Cit.]. Unless the evidence of insanity is overwhelming, the jury's determination that the defendant was sane should be upheld. [Cit.]

Id. at 691, 572 S.E.2d 565. In light of the...