Ellington v. State

• Decision Date: 19 November 2012
• Docket Number: No. S12P0870.,S12P0870.
• Citation: 735 S.E.2d 736,292 Ga. 109
• Parties: ELLINGTON v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 109

735 S.E.2d 736

ELLINGTON

v.The STATE.

No. S12P0870.

Supreme Court of Georgia.

Nov. 19, 2012.

Carl P. Greenberg, Gladys Haynes Pollard, Office of the Georgia Capital Defender, Atlanta, David W. DeBruin, Jenner & Block LLP, Washington, for Appellant.

Daniel James Quinn, Asst. Dist. Atty., Office of the District Attorney, Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Theresa Marie Schiefer, Asst. Atty. Gen., Department of Law, for Appellee.

Joseph Scott Key, J. Scott Key, P.C., Decatur, James C. Bonner, Jr., Georgia Public Defender Standards Council, Franklin James Hogue, Hogue & Hogue, Decatur, for Amicus Appellant.

Brian Kammer, Georgia Resource Center, Atlanta, Richard A. Malone, Prosecuting Attorney's Council, Dana Elizabeth Weinberger, Asst. Atty. Gen., Department of Law, Donald Paul Geary, Asst. Dist. Atty., Robert D. James, Jr., Dist. Atty., Office of the District Attorney, for Other Party.

NAHMIAS, Justice.

A jury convicted AppellantClayton Jerrod Ellington of murdering his wife, Berna Ellington, and their twin two-year-old sons, Cameron and Christian.¹The jury found two statutory aggravating circumstances related to each of the three murders and recommended three death sentences, which the trial court imposed.For the reasons set forth below, we affirm Ellington's convictions.As to his death sentences, however, as discussed at length in Division 7 below, we hold that the trial court abused its discretion in prohibiting Ellington from asking prospective jurors in voir dire whether they would consider all three sentencing options (death, life without parole, and life with the possibility of parole) in a case involving the murder of young children, where that was clearly a critical fact in this case, as shown by, among other things, the responses of prospective jurors who knew or inferred that fact from other sources and by the way the prosecutor tried and argued the case.We cannot say that this error was harmless, so we must reverse Ellington's death sentences and remand the case for further proceedings.

1.Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed the following.Ellington was married to Berna Ellington, but for several months he had been having an affair with another woman.Ellington frequently spent the night with his mistress, who knew that Ellington was married but was led to believe that he had separated from his wife, was filing for divorce, and was living with a male roommate.Ellington told his mistress that he loved her and wanted to marry her, and he asked about moving in with her, but she said she was not ready for that.The weekend before the murders, Ellington and his mistress had an argument after he appeared at her house in his wife's car.The mistress informed Ellington that she was “calling it off.”The couple remained on speaking terms, and Ellington spent some more nights at the mistress's house, but she told him that he had to choose between her and his wife.

On the night of the murders, Ellington had plans to meet his mistress after she got off work.At about 7:15 p.m., he called her to see if she could get off early.At about 9:00 p.m., Ellington's wife spoke with her sister on the phone.She did not sound like herself and said she had to hang up but would call back; she never did.Around 10:45 p.m., Ellington called his mistress again to say that he might need to travel to Augusta to help the man he claimed was his “roommate,” who was actually in Washington, D.C. at the time.About 15 minutes later, Ellington arrived at the house of a friend, Sean Fennell, as they had previously planned to watch a basketball game.While still sitting in his pickup truck, Ellington asked Fennell for a pair of shoes and a trash bag, which Fennell got for him.Ellington then drove with Fennell to the mistress's house to watch the game.After watching the game for only a few minutes, Ellington told Fennell that he had sent a text to his wife, that she had not replied, and that he was concerned about her.

Ellington drove to his house with Fennell and told Fennell to wait in the truck while he went inside.As he entered the house through the garage door, Ellington took off the shoes he had borrowed from Fennell.After several minutes, Ellington ran out the front door, screaming for Fennell to come inside.In the foyer on the ground floor, Berna Ellington lay facedown, dead in a pool of blood.Blood spatters and smears covered the foyer and the stairway.Ellington's twin boys, who had just turned two years old, lay dead in their blood-stained cribs upstairs.As Fennell and Ellington went up the stairs at about 11:45 p.m., Ellington called 911 and began screaming hysterically, but he refused the 911 operator's request to put Fennell on the line, exclaiming, “You talk to me; you don't talk to nobody else!”

At the scene, Ellington repeatedly said, “they killed them.”He agreed to have the officers drive him to the police station for an interview.At the police station and later at the jail, in a series of statements discussed in detail in Division 2 below, Ellington initially denied any involvement in the murders, but he later claimed that he walked in and found his wife beating the children with a hammer, that he took the hammer from her, and that he then beat her with the hammer to show her how it felt.

Forensic analysis of the crime scene and autopsies of the victims showed the following.Berna Ellington likely was beaten to death with both ends of a hammer, with most of her wounds inflicted with the claw-end.The attack began while she lay in bed; as she tried to flee, she was beaten as she cowered or fell near the bed, as she went down the stairs, and while upright in the foyer.She then fell to the floor, where she was beaten further while helpless; she then had a plastic bag placed over her head, perhaps to suffocate her and hasten her inevitable death.She had a large number of wounds spread about her head, neck, shoulders, arms, and hands, and her skull had been fractured in so many places that it was impossible to determine the number of individual wounds that she had suffered.

The twin boys had been beaten to death in their cribs, likely with the claw-end of a hammer.They were both found lying face up with their skulls fractured numerous times.There were impact blood spatter stains on the wall by the twins' cribs, inside their cribs, and on the floor of their room, but all 41 of the blood samples taken from Berna Ellington's camisole matched only the DNA from her own blood.The investigation revealed blood drops leading to the shower and blood residue inside the shower, indicating that the assailant had cleaned up there after the murders.Apart from the evidence of the triple murder, the house appeared undisturbed.

When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Ellington guilty beyond a reasonable doubt of the crimes for which he was convicted.SeeJackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).See alsoVega v. State,285 Ga. 32, 33, 673 S.E.2d 223(2009)(“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”(citation omitted)); UAP IV (B)(2)(providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).We also conclude that the evidence presented at trial was sufficient to support the jury's finding of both statutory aggravating circumstances alleged—(1) that each murder was committed during the commission of another capital felony (another murder) and (2) that each murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.SeeOCGA § 17–10–30(b)(2), (7);Ring v. Arizona,536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556(2002)(holding that statutory aggravating circumstances must be proven to a jury beyond a reasonable doubt).

Evidence Suppression Issue

2.Ellington contends that statements that he made while in jail were improperly admitted at his trial.We recount Ellington's treatment by and statements to the police after the murders to put the disputed statements in context.

(a) After Ellington returned to his home, where his wife and twin sons lay dead, he called 911 at approximately 11:30 p.m.Upon arriving, officers observed him “screaming and crying” and saying “they killed them.”The admission of Ellington's statements at the crime scene is not in dispute here.Ellington was not touched or handcuffed by the officers, and he willingly agreed to travel in a police car to a police station to be interviewed by detectives.On the way to the police station, Ellington spoke on his cell phone, apparently to relatives, saying “someone killed them.”The admission of these overheard statements also is not in dispute here.

At the station, Ellington was taken to a small interview room, where he waited until Detectives Mullner and Farmer arrived to begin the interview at about 12:30 or 1:00 a.m.According to Detective Farmer, Ellington seemed “morose” and sometimes “agitated” during the interview, but he was lucid and cooperative.He was never handcuffed, restrained, or told that he was under arrest.The trial court concluded that the statements made during the first portion of the interview by Detectives Mullner and Farmer, which were memorialized in writing by the detectives, were admissible because they were made voluntarily and before Ellington was in custody; Ellington does not challenge that ruling on appeal.However, the trial court concluded that Ellington was in custody at the time that Detectives Mullner and Farmer had him sign his memorialized statements, and, because he had not been given Mi...