Allaben v. State

• Decision Date: 25 November 2013
• Docket Number: S13A0949.
• Parties: ALLABEN v. THE STATE.
• Court: Supreme Court of Georgia

ALLABEN v. THE STATE.

S13A0949.

Supreme Court of Georgia

Decided: November 25, 2013

HUNSTEIN, Justice.

Appellant Dennis Allaben was found guilty of malice murder, felony murder, aggravated assault with intent to murder, battery, simple battery, and reckless conduct in connection with the strangulation death of his wife, Maureen Allaben.¹ The felony murder verdict was vacated by operation of law, and the trial court entered a judgment of conviction only for malice murder, merging the remaining verdicts into that conviction. On appeal, Allaben contends, amongother things, that the jury returned mutually exclusive verdicts. Because we conclude that the guilty verdict on reckless conduct was mutually exclusive of the remaining verdicts, we reverse Allaben's conviction for malice murder, set aside all the guilty verdicts, and remand the case for further proceedings.

1. Viewed in the light most favorable to the verdicts, the evidence shows that on January 3, 2010, Allaben strangled the victim to death. He rolled her body up in blankets that he secured with duct tape and placed her in the back of his pickup truck. He drove his two children, who were seven and eight years old, to his brother's house in Virginia, telling them on the way that he had killed their mother. In Virginia, he also told his sister-in-law that he had killed his wife. He said that she was engaging in some unusual practices, including the poisoning of his food, and that he took a cloth soaked with ether and held it to her face so that she would go to sleep. He then planned to tie her up, so that he could talk to her about what she was doing. However, he told his sister-in-law that the cloth went too far down the victim's throat, and she choked to death.

Leaving the children at their relatives' house in Virginia, Allaben returned with his wife's body to Atlanta and drove to a friend's house. He told the friend that his wife was in his truck, that she was dead, and that he needed an attorney.Allaben also told the friend the same story he told his sister-in-law about the victim's allegedly unusual behavior, and he said, "I didn't mean for this to happen. I love her so much. This isn't what I wanted." The friend subsequently called a police officer that he knew, and Allaben surrendered to the officer.

The medical examiner testified that the victim was placed in a police choke hold and strangled to death and that there was no evidence of a rag on or in her body. According to the medical examiner, someone placed in a police choke hold would probably lose consciousness in one to two minutes and would suffer irreversible brain damage and die after four to six minutes. Finally, he testified that the victim's death was a homicide, "[t]he intentional taking of a life by another person."

This evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Allaben was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).

2. Allaben contends that the verdicts on malice murder, felony murder, aggravated assault, battery, and simple battery were mutually exclusive of theverdict on reckless conduct, because the former required the jury to find criminal intent and the latter required only a finding of criminal negligence. We agree.

"Verdicts are mutually exclusive 'where a guilty verdict on one count logically excludes a finding of guilt on the other.'" Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003) (citation omitted). We have held that verdicts are mutually exclusive where a jury returns "'verdicts of guilt as to both [criminal intent and criminal negligence] offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time.'" Walker v. State, _ Ga. _ (2) (a) (_ SE2d _), 2013 Ga. LEXIS 785, *10 (Case No. S13A0861, decided Oct. 7, 2013) (citation omitted) (bracketed material in original). "[S]uch verdicts reflect[] an illogical finding by the jury" that the defendant "acted with both criminal intent and criminal negligence" toward the victim. Id. at *9 (citation and quotation marks omitted). And, if a jury returns a guilty verdict on a crime that can be committed in two ways, one of which is, and one of which is not, mutually exclusive of a guilty verdict for a second crime, the guilty verdicts are considered mutually exclusive unless we can "'conclusively state that the verdict [on the first crime] restedexclusively on the [non-mutually exclusive] ground so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict.'" Id. at *11-12 (citation omitted and bracketed material added).

Here, all the verdicts involve the "'same act by the accused as to the same victim at the same instance of time.'" Walker, __ Ga. at __, 2013 Ga. LEXIS 785, *10. And the jury found that Allaben acted with criminal negligence in strangling the victim when it returned its guilty verdict on reckless conduct. See Jackson, 276 Ga. at 411-412; OCGA § 16-5-60 (b). That verdict thus would be mutually exclusive of the verdicts for malice murder, felony murder based on aggravated assault, aggravated assault with intent to murder, battery, and simple battery if the jury had to find that Allaben acted with criminal intent to return guilty verdicts on those offenses.² Because a judgment of conviction was notentered on the guilty verdicts for felony murder, aggravated assault, battery, and simple battery, we first examine whether the verdicts for malice murder and reckless conduct were mutually exclusive.

(a) Malice murder requires a jury to find that the defendant acted with criminal intent. See Walker, __ Ga. at __, 2013 Ga. LEXIS 785, *8; Ledford v. State, 289 Ga. 70 (1) (709 SE2d 239) (2011); OCGA § 16-5-1 (a), (b). In Dumas v. State, 266 Ga. 797 (471 SE2d 508) (1996), we held that a guilty verdict of malice murder was mutually exclusive of a verdict for vehicular homicide, because the malice murder verdict required a finding that the defendant acted with an intent to kill and the vehicular homicide verdict required a finding that he acted without an intent to kill. See id. at 800. In Jackson, we also said that a guilty verdict for involuntary manslaughter based on reckless conduct required a finding that the defendant acted "with criminal negligence, that is, . . . without any intention to do so," and was thus inconsistent with the guilty verdict on felony murder based on aggravated assault, which required a finding that the defendant acted with criminal intent. 276 Ga. at 412.Thus, under our established precedent, it appears that verdicts finding Allaben guilty of malice murder and reckless conduct are mutually exclusive. The State, however, advances several arguments as to why that is not so under the circumstances of this case. These arguments have no merit.

(1) Relying on Parker v. State, 270 Ga. 256 (507 SE2d 744) (1998), overruled on other grounds by Linson v. State, 287 Ga. 881, 886 (700 SE2d 394) (2010), the State contends that the verdict for reckless conduct does not logically exclude a finding of guilt for malice murder. In Parker, this court explained the concept of implied malice.³ We said that it is a concept that "'has been defined to mean conduct exhibiting a "reckless disregard for human life,"'" id. at 260 (citation omitted), which is consistent with the

general rule that extremely negligent conduct, which creates whata reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others - though unaccompanied by any intent to kill or do serious bodily injury - and which actually causes the death of another, may constitute murder. If a reckless disregard for human life constitutes implied malice and implied malice is, in turn, the equivalent of a specific intent to kill, then it necessarily follows that reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence that the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill.

Id. (citations, bracketing, and indentation omitted). The State contends that, because reckless disregard for life is the equivalent of a specific intent to kill, the malice murder verdict is not logically excluded by the reckless conduct verdict, a crime which is committed when

[a] person . . . causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

OCGA § 16-5-60 (b).

Even assuming that a finding of implied malice to support a malice murder verdict and a finding of recklessness to support a reckless conduct verdict are not mutually exclusive, when instructing the jury on the malice murder count,the trial court did not charge that a reckless disregard for human life is the equivalent of an intent to kill. It simply told the jury that malice may be implied when no considerable provocation appears and "when all of the circumstances of the killing show an abandoned and malignant heart." It then instructed the jurors that "to constitute murder, the homicide must have been committed with malice. . . . [L]egal malice is the unlawful intention to kill without justification, without excuse, without mitigation." Thus, the record shows that there is no basis for the State's assertion that jury may have based its malice murder verdict on a finding that Allaben acted with reckless disregard for human life, without any intent to kill.

Moreover, even if the trial court had charged the jury that...