Neal v. State, S11A1663.

• Citation: 290 Ga. 563,12 FCDR 605,722 S.E.2d 765
• Decision Date: 27 February 2012
• Docket Number: No. S11A1663.,S11A1663.
• Parties: NEAL v. The STATE.
• Court: Supreme Court of Georgia

12 FCDR 605

290 Ga. 563

722 S.E.2d 765

NEAL

v.The STATE.

No. S11A1663.

Supreme Court of Georgia.

Feb. 27, 2012.

Roger C. Wilson, for appellant.

Paul L. Howard, Jr., Dist. Atty., Peggy R. Katz, Paige Reese Whitaker, Sheila E. Gallow, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., for appellee.

CARLEY, Presiding Justice.

A jury found Eugene Neal guilty of the malice murder of his fiancée Dorothy Driskell. The trial court entered judgment of conviction on that guilty verdict and sentenced Neal to life imprisonment. After a motion for new trial was denied, Neal appealed to the Court of Appeals, which transferred the case to this Court.^* See State v. Murray, 286 Ga. 258, 687 S.E.2d 790 (2009); State v. Thornton, 253 Ga. 524(1), 322 S.E.2d 711 (1984).

1. Construed most strongly in support of the verdict, the evidence shows that, in the master bedroom of his house, Neal placed the victim in a chokehold until she passed out. The medical examiner testified that the cause of death was manual strangulation with significant force for at least four minutes. In a statement at the scene and during his testimony, Neal stated that the victim attacked him out of jealousy and bit him and that he was defending himself. However, Neal admitted that he kept the victim in a chokehold until she stopped struggling and that she fell to the floor when he let go. No drugs or alcohol was found in the victim's blood. About 13 years before, Neal choked his then-wife, and there were several other instances of physical abuse by Neal during that marriage.

Neal argues that the evidence was insufficient to prove beyond a reasonable doubt that the cause of the victim's death was any act or omission by Neal instead of the severing of her jugular vein by emergency medical personnel during intubation. However, the testimony shows that the emergency personnel actually punctured the jugular vein while attempting to start an I.V. line and that such a puncture was normal in the circumstances. There is no evidence that the medical treatment by emergency personnel was negligent. Even if it were negligent, it would not normally constitute an intervening cause unless, unlike here, it was a gross mistreatment. Robert E. Cleary, Jr., Ga. Criminal Offenses and Defenses, Homicide (I)(D) (2011 ed.). See also Hendrick v. State, 257 Ga. 17, 18(5), 354 S.E.2d 433 (1987); 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(f)(5) (2d ed.).

Contrary to Neal's summary of the medical examiner's testimony , that witness testified that blood in the victim's neck muscles may have come from the punctured vein, but that the blood in her lungs did not. Although the medical examiner did not “think” that the bleeding from that vein contributed to the victim's death, he testified that there was not enough blood from the vein for the victim to bleed to death. Based on the medical examiner's testimony, a rational jury could conclude that Neal's strangulation of the victim either caused or directly and materially contributed to her death and that the emergency treatment was at most a secondary, rather than intervening, cause of death. See Green v. State, 266 Ga. 758, 760(2)(b), 470 S.E.2d 884 (1996); Bishop v. State, 257 Ga. 136, 140(2), 356 S.E.2d 503 (1987); Larkin v. State, 247 Ga. 586(1), 278 S.E.2d 365 (1981). In short, the jury was authorized to reject the theoretical possibility of causation offered by Neal. See Shields v. State, 285 Ga. 372, 375(1), 677 S.E.2d 100 (2009).

We conclude that the evidence was sufficient to enable a rational jury to find beyond a reasonable doubt that Neal was guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Neal contends that the trial court erred in admitting, over defense objections, evidence of allegedly similar transactions involving his ex-wife and occurring a decade or more before the victim's death here.

Both the prior transactions and the murder in this case involved violent assaults by Neal against women with whom he was intimately involved.

[T]hey involved acts of violence that were either entirely unprovoked or disproportionate to any provocation. Moreover, “(i)n cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment.” [Cit.]

Hall v. State, 287 Ga. 755, 757(2), 699 S.E.2d 321 (2010). The similar transactions were offered to prove intent, bent of mind, course of conduct, and common scheme or plan. “When similar transaction evidence is admitted for these purposes, a lesser degree of similarity is required than when such evidence is introduced to prove identity. [Cits.]” Smith v. State, 273 Ga. 356, 357(2), 541 S.E.2d 362 (2001). See also Abdullah v. State, 284 Ga. 399, 401(3), 667 S.E.2d 584 (2008). Furthermore, the lapses of time of up to 13 years

between the prior incidents and the crime[ ] at issue here do not require exclusion of the evidence. [Cits.] Given that the similar transaction evidence reflects [Neal's] behavior towards prior spouses, we conclude that any prejudice from the age of these prior incidents was outweighed by the probative value of the evidence under the particular facts of this case and the purpose for which the similar transactions were offered. [Cit.]

Hall v. State, supra. Moreover, “[w]e find no merit in [Neal's] contention that the similar transaction evidence was overly prejudicial, as the trial court gave detailed limiting instructions [before] it was admitted and at the close of the case. [Cit.]” Rivera v. State, 282 Ga. 355, 359(3), 647 S.E.2d 70 (2007).

“Because the evidence was sufficient to establish the required similarity between the charged crime[ ] and the [assaults Neal] inflicted on [his ex-wife], the trial court did not abuse its discretion by admitting this evidence.” Hall v. State, supra.

3. Immediately after charging the jury on self-defense in the language of OCGA § 16–3–21(a), the trial court, using the language of subsection (b)(3) almost verbatim, gave the following additional charge:

A person is not justified in using force if that person was the aggressor or was engaged in a combat by agreement, unless the person withdraws from the encounter and effectively communicates his intent to withdraw to the other person, and the other person still continues or threatens to continue the use of unlawful force.

The giving of this charge is enumerated as error on the basis that there was not sufficient evidence that Neal was the first aggressor.

“Where an instruction closely tracks the language of OCGA § 16–3–21[ (a) and (b) ], as the charge in this case does, giving that instruction is not harmful, even when the exceptions described by subsection (b) do not apply. [Cit.]” Reese v. State, 270 Ga.App. 522, 524(3), 607 S.E.2d 165 (2004). See also Lee v. State, 265 Ga. 112, 113–114(3)(a), 454 S.E.2d 761 (1995); Jolley v. State, 254 Ga. 624, 628(4), 331 S.E.2d 516 (1985); Hayles v. State, 287 Ga.App. 601, 603(1)(c), 651 S.E.2d 860 (2007). In the cited cases, the trial court apparently instructed the jury on every exception to self-defense contained in subsection (b), and the defendant contended that either none or only one of them was applicable. In the case now before us, the trial court's instruction encompassed only the third exception in subsection (b) and therefore was more clearly harmless than the charges in the above-cited cases which included all of the exceptions in subsection (b) and which nevertheless did not constitute reversible error. Assuming that there was no evidence that Neal was the aggressor, the charge on OCGA § 16–3–21(b)(3) “ was at most merely irrelevant, being one of a number of stated exceptions to the rule concerning the use of force in self-defense.” Hill v. State, 155 Ga.App. 718, 719(1), 272 S.E.2d 508 (1980). See also Lowe v. State, 267 Ga. 410, 413(4), 478 S.E.2d 762 (1996).

Moreover, the trial court not only instructed the jury on self-defense as set forth in subsection (a), it also fully charged on the doctrine of reasonable fears, on the absence of a duty to retreat, and on the State's burden of proving beyond a reasonable doubt that the defendant was not justified.

The true question is whether an abstractly correct charge not authorized by the evidence is calculated to confuse and mislead the jury.... [W]here it is obviously highly probable that the error, if existing, did not contribute to the verdict, a reversal will not result. [Cits.] Taking the charge as a whole we find no reversible error.

Hill v. State, supra. See also Lowe v. State, supra; Martin v. State, 164 Ga.App. 500(3), 297 S.E.2d 112 (1982).

4. Neal further contends that his trial counsel rendered ineffective assistance by failing to present readily available testimony by his ex-girlfriend regarding his peaceful history, nature, and character.

In order to succeed on [his] claim of ineffective assistance, [Neal] must prove both that [his] trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. [Cits.] In reviewing the trial court's decision, “ ‘(w)e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ (Cit.)” [Cit.]

Smith v. State, 288 Ga. 348, 352(8), 703 S.E.2d 629 (2010).

Neal argues that testimony by his ex-girlfriend would have rebutted the similar transaction evidence which suggested a character for and...