Givens v. State
| Decision Date | 25 November 2013 |
| Docket Number | No. S13A1016.,S13A1016. |
| Parties | GIVENS v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Sheueli Cindy Wang, Georgia Public Defender Standards Council, Atlanta, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Ryan A. Kolb, Asst. Atty. Gen., Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Paige Reese Whitaker, Asst. Dist. Attys., Atlanta, for appellee.
Appellant Alvando Givens, Sr., was convicted of malice murder for the death of Voncetta Render.1 On June 4, 2006, the police responded to a suspicious vehicle call and found the victim's body inside her green Pontiac Bonneville parked on the side of a road in Fulton County. The night of her death, the victim had gone out clubbing and then went home with appellant. At trial, appellant's son, who was 9 years-old at the time, testified he heard a woman screaming from his father's bedroom and the woman saying “Al, stop.” The son also heard stomping, hitting and slapping coming from the bedroom. After the noises from the bedroom stopped, the son said he heard appellant drag something toward the side door of the house, and then heard a car door and trunk close. The son saw a green car in front of the house that night which was not there when he got up in the morning. Later on that morning, the son overheard his father talking on the telephone about cleaning up anything that looked suspicious. Appellant's stepdaughter, who was 14 years-old at the time, also heard appellant with a woman in his bedroom. The stepdaughter heard appellant ask the woman where his money was and the woman answering she did not have it. The stepdaughter heard the woman crying and heard slapping, punching, and crashing sounds (as if someone was falling) coming from appellant's bedroom. Appellant left the room briefly and the stepdaughter saw appellant come into the living room where she and the son were lying on the couch pretending to sleep, and retrieve a gun from under the couch cushion. When appellant returned to the bedroom, the stepdaughter said the beating began anew. Soon thereafter the sounds from the woman grew faint and then the stepdaughter heard appellant leave the house. Appellant became a suspect in the murder when the children told their mother what they had heard and seen and their mother called police.
Evidence discovered during the investigation showed that the victim's blood DNA was in appellant's bedroom and on the shoes he was wearing on the night in question. The medical examiner testified that the victim received the following injuries at or around the time of death: blunt force trauma of the head and neck; bleeding around the brain; hemorrhaging of the scalp, hemorrhaging of the eyes, and hemorrhaging around the neck and throat muscles; blunt force trauma to the torso and extremities; and abrasions on the head (including the face), torso, arms, and legs. The medical examiner determined that the cause of death was blunt force trauma of the head and neck, noting in particular that the victim's death was caused by a combination of manual strangulation and striking of the head.
Appellant originally told police that he was with his girlfriend on the night in question and had done nothing wrong. At trial, however, appellant testified in his own defense and admitted that he met the victim twice that night at two different clubs, that she came over to his house upon leaving the second club, and that they had sex. During the night, appellant noticed that some cash was missing from his wallet.2 Appellant testified that when he questioned the victim about taking money from his wallet, she charged at him in a rage, placing “fear in [his] heart.” He stated that he did not remember hitting the victim and when asked why he would have hit her, he responded, “To protect myself.” Appellant also did not remember moving the victim's body or moving her vehicle. He stated that his memory lapse was due to the fact he had been drinking and taking drugs that night.
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The trial court instructed the jury as follows regarding appellant's trial testimony:
The defendant has a right to be sworn as a witness and testify [on] his own behalf, which the defendant has done in this case. I charge you that his testimony under oath may be given the same weight as that of any other witness in this case and is governed by the same rules as to credibility as are the other witnesses in this case. It is to be weighed with all other evidence in the case in deciding guilt or innocence.
Citing Donald v. State, 287 Ga. 798(2), 700 S.E.2d 390 (2010), appellant alleges the trial court erred when it immediately followed the above jury charge with the following instruction on single witness testimony:
You are not obliged to accept any one witness' testimony even though the testimony is uncontradicted and the witness is not impeached. You may decide because of the witness' bearing and demeanor or because of the inherent improbability of his testimony or for any other reason sufficient to you that such testimony is unworthy of belief.
According to appellant, the sequence of these charges caused confusion to the jury by giving the impression, in violation of OCGA § 17–8–57, that the trial court believed appellant's testimony was not credible. We disagree.
Since appellant failed to contemporaneously object to the jury charges at trial, the matter is subject only to plain error review on appeal. See OCGA § 17–8–58; State v. Kelly, 290 Ga. 29(1), 718 S.E.2d 232 (2011). Thus, we must consider “whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Id. at 33, 718 S.E.2d 232 (punctuation and citations omitted). Here the charges were not obviously erroneous and did not affect the outcome of the proceedings. Indeed, appellant does not and can not contend that the instruction on single witness testimony was an incorrect statement of the law because he requested the charge. His reliance on Donald v. State to show the sequence of the charges was plain error is misplaced as the jury charge at issue therein was unique to that case and was not the same charge given in this case.3 Specifically, the trial court in Donald v. State stated as part of its instruction on the testimony of the accused that the jury was not “ bound to believe testimony as to facts incredible, impossible, or imperatively improbable.” 287 Ga. at 799, 700 S.E.2d 390. This had an immediate effect of casting the defendant's testimony as not being credible. Id. at 800, 700 S.E.2d 390. No such language was given as part of the instruction on the accused's testimony in this case. Further, when the trial court gave the charge on single witness testimony it spoke generically as to all witness testimony and made no distinction or emphasis as to the creditworthiness of appellant's testimony. It was highly unlikely the jury was confused by these back-to-back charges when rendering its verdict. There was no plain error.
3. Appellant alleges the trial court erred when it gave instructions on criminal intent which he contends alleviated the State's burden to prove specific intent beyond a reasonable doubt. The trial court gave the following charges relevant to this enumeration of error:
Intent is an essential element of any crime and must be proved by the State beyond a reasonable doubt. Intent may be shown in many ways, provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by acts and conduct or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion.
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