Green v. State
| Decision Date | 03 June 1996 |
| Docket Number | No. S96A0599,S96A0599 |
| Citation | 266 Ga. 758,470 S.E.2d 884 |
| Parties | GREEN v. The STATE. |
| Court | Georgia Supreme Court |
Mark J. Nathan, Savannah, for Green.
Spencer Lawton, Jr., Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., Dept. of Law, Atlanta, David Langford, Asst. Dist. Atty., Savannah, Beth Attaway, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.
Bernard William Green was convicted of felony murder in the death of his wife Cynthia Grant, who died of a stress ulcer in the hospital a week after Green stabbed her. There was conflicting expert testimony at trial concerning whether the stab wound or the drug Toradol caused the stress ulcer. Green alleges that his trial counsel was ineffective in failing to request the proper charge on secondary causation of death and to object to improper charges. Since the jury charge as a whole was sufficient, we affirm.
Grant's three teenage children testified at trial that Green and their mother were fussing one Friday night when the oldest daughter hit the defendant on the head with a mop, Grant threw an empty barbecue bottle at him, and Green stabbed Grant in the back with a knife. While lying on a bed waiting for police, Grant told a neighbor, She died suddenly a week later after being approved for release from the hospital. The state's pathologist testified that there was a direct relationship between the stabbing and its treatment and Grant's death from the bleeding ulcer. He stated that the stab wound caused the stress and that Grant would not have been given the pain killer Toradol if she had not been stabbed. Green's defense was that he did not stab his wife and the stab wound did not cause her death. His expert testified that the victim died from an ulcer inspired by Toradol.
1. In considering whether there was sufficient evidence to convict, we review the evidence in the light most favorable to the jury's determination of guilt. 1 Applying this standard, we conclude that a rational trier of fact could have found Green guilty of felony murder.
2. Because Green's attorney did not object to the jury charge at trial or reserve the right to object, Green now asserts that he was denied effective assistance of counsel. Specifically, he alleges that his trial counsel was ineffective in failing to object to a sequential charge that violated Edge v. State 2 or request a specific charge on secondary causation. To establish that claim, Green must show that his trial counsel performed deficiently and the attorney's performance prejudiced the defense. 3
(a) In Edge, we disapproved of a sequential charge that required the jury to consider voluntary manslaughter only if it found the defendant not guilty of felony murder. Our concern was to ensure that persons are not convicted of felony murder in cases where the facts warrant voluntary manslaughter. 4 Subsequently, we held that this purpose is met when the jury considers voluntary manslaughter, even though a sequential charge is given. 5
In this case, the trial court instructed the jury that it should consider whether the state proved all of the elements of both felony murder and voluntary manslaughter and that it could not find Green guilty of felony murder if it found him guilty of voluntary manslaughter. The trial court made clear that a person commits voluntary manslaughter when the killing results from passion and provocation. Moreover, the jury verdict form indicates that the jury specifically considered voluntary manslaughter since it found the defendant "not guilty" of that crime. We conclude that the jury charge...
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