Norton v. State

• Decision Date: 01 July 2013
• Docket Number: No. S13A0301.,S13A0301.
• Citation: 745 S.E.2d 630,293 Ga. 332
• Parties: NORTON v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 332

745 S.E.2d 630

NORTON

v.The STATE.

No. S13A0301.

Supreme Court of Georgia.

July 1, 2013.

Jessica Ruth Towne, Clark & Towne, P.C., Lawrenceville, for appellant.

Christa Lea Kirk, The Ryczek Firm, P.C., Lawrenceville, Daniel J. Porter, Dist. Atty., Gwinnett County District Attorney's Office, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine R. Thrower, Ast. Atty. Gen., Department of Law, for appellee.

HINES, Justice.

David Robert Norton appeals his convictions and sentences for malice murder, arson, criminal attempt to commit the crime of concealing the death of another, possession of a firearm by a first offender probationer, and possession of a firearm during the commission of a felony, all in connection with the shooting death of Amy Ayers (“Amy”).¹ For the reasons that follow, we affirm.

Construed to support the verdicts, the evidence showed that Norton was Amy's live-in boyfriend. David Ayers (“David”) was Amy's ex-husband; they had two children together. In September or October 2007, Amy went to David's house to discuss the children and spent the night there. On October 7, 2007, Norton sent David an email discussing the incident, and stating, “[t]ake this seriously and to heart.... that i do not want ANYONE sniffin around my girl.” [Sic.] On October 26, 2007, Amy told David that she was going to ask Norton to leave. On the morning of October 30, 2007, Amy's son, Wesley Ayers, left the house for school; Amy and Norton were still there. When Wesley returned, there was smoke in the house and he called 911. After extinguishing a fire in an upstairs bedroom, a firefighter found Amy's burned body on the floor; a roll of duct tape was nearby, a sheet was under the body, and the smoke detectors on the first and second floors of the house had been removed from the walls. Amy had been killed by a shotgun blast to the back of her skull; the shot was directed slightly upward from a distance of one foot or less. Two separate fires had been started in the bedroom: one originated on Amy's body and the other in a chair. Debris tested positive for gasoline. A detective spoke to Norton by cell phone shortly after examining the scene; Norton refused to reveal his location and said that he knew Amy was dead.

Norton was found, taken to a law enforcement facility, given his Miranda² warnings, and interviewed. He said that he and Amy argued, she retrieved a “sawed-off” shotgun from the closet and pointed it at him, they wrestled, the shotgun fell to the floor, and discharged. He also said he did not know how she was shot, and speculated that his thumb had hit the trigger. Norton further stated that, as he did not wish her sons to see Amy's body, he attempted to wrap the body in a sheet with duct tape and move it for burial before they returned from school, but was unable to do so; he then poured gasoline on the body and set it on fire. Although Norton stated that he threw the shotgun into a lake, it was never found.

[293 Ga. 334]1. The evidence authorized the jury to find Norton 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. Norton contends that evidence of his interview with law enforcement investigators, and the written statement he made at the time, should have been suppressed, asserting that he was then under the influence of drugs and alcohol such that his waiver of his Miranda rights was not made knowingly and voluntarily. After a Jackson–Denno³ hearing, the trial court denied Norton's motion to suppress.

In deciding the admissibility of a statement during a Jackson–Denno hearing, the trial court “must consider the totality of the circumstances” and must determine the admissibility of the statement under the “preponderance of the evidence” standard. Unless the factual and credibility findings of the trial court are “clearly erroneous,” the trial court's decision on admissibility will be upheld on appeal. [Cits.]

Jones v. State, 285 Ga. 328, 329(2), 676 S.E.2d 225 (2009).

During the hearing, Norton's expert witness, a psychiatrist, testified that Norton reported that, before the interview, he had taken 15–20 pills of Xanax, 2 pills of Adderall, and had been drinking bourbon and beer. The expert further testified that he had viewed the recording of the interview, had conducted his own interview of Norton, and concluded that Norton had a history of substance abuse that had created in him a tolerance for the substances such that he would appear to be functioning normally, but would not in fact be able to make intelligent decisions, and that, in the expert's opinion, at the time of the interview, Norton was not able to knowingly or intelligently waive his Miranda rights. Another expert witness, also a psychiatrist, testified on behalf of the State that she reviewed the interview and, given the statements Norton made and the answers to questions he was asked, he understood that giving a statement to investigators could have legal consequences, did not display a “significant level of impairment,” and knowingly, intelligently, and voluntarily waived his Miranda rights. The detective who was the primary interviewer testified that he did not promise Norton anything in exchange for speaking with the detective, that Norton appeared to understand both what was occurring and his Miranda rights, even discussing the fact that he could not afford an attorney, and that he wished to speak with the detective nonetheless. After its own review of the recorded interview, the trial court denied the motion to suppress.

The mere fact that Norton may have been somewhat intoxicated at the time of the interview does not automatically render evidence thereof inadmissible. Jones, supra. See also Shelby v. State, 265 Ga. 118, 119, 453 S.E.2d 21 (1995); Fowler v. State, 246 Ga. 256, 258(3), 271 S.E.2d 168 (1980). The trial court was faced with conflicting evidence, and determined that Norton made his statement knowingly and voluntarily; there was evidence to support this determination; and there is no reversible error in the court's denial of the motion to suppress. See Miller v. State, 288 Ga. 286, 286–287(1), 702 S.E.2d 888 (2010).⁴

3. Norton contends that the trial court wrongly admitted into evidence two autopsy photographs that showed the victim's head, one with a portion of the scalp excised and one with a portion of the skull removed.

A photograph that depicts the victim after autopsy incisions or after the pathologist changes the state of the body is admissible when ‘necessary to show some material fact which becomes apparent only because of the autopsy.’ Brown v. State, 250 Ga. 862, 867(5), 302 S.E.2d 347 (1983).

Bunnell v. State, 292 Ga. 253, 258(5), 735 S.E.2d 281 (2013). The photographs aided the medical examiner in testifying as to the range and direction of travel of the shotgun pellets, which, coming from the rear of the right side of Amy's head, served to rebut the defense of accident, and it was not error for the court to admit them into evidence. Id.

4. During closing argument, the State presented a demonstration with a piece of wood 18 inches long, which represented the sawed-off shotgun that Norton told investigators he and Amy struggled over.⁵ Norton did not object to the demonstration at trial, but even absent procedural waiver, such a demonstration is not beyond the bounds of permissible argument, and Norton cannot show an abuse of discretion in permitting it. See Scott v. State, 290 Ga. 883, 885(2), 725 S.E.2d 305 (2012); Laney v. State, 271 Ga. 194, 198(9), 515 S.E.2d 610 (1999). Contrary to Norton's contention, nothing in the record indicates that the State introduced new evidence during the closing argument. Compare Williams v. State, 254 Ga. 508, 511(3), 330 S.E.2d 353 (1985).

During deliberations, the jury asked to view the video recording of Norton's statement to investigators, and to have the transcript thereof to refer to during the viewing. After discussion with counsel, the court arranged for the jury to have the recording made available to it to view in the jury room, and for copies of the transcript to be delivered there as well. Although Norton asserts that it was error to do so, the record is clear that he acquiesced in the court's decision, and therefore cannot complain on appeal. See Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997).

6. Norton also contends that, after deciding that the video should be viewed by the jury, with the transcript used for reference, the trial court should have given further instructions regarding the jury's consideration of the video and transcript.⁶ However, he did not object at the time and, when the court asked if there were “any objections to what just occurred,” responded: “[n]ot from the defense, Judge.” As Norton did not object at the time,

we review this contention for plain error. See State v. Kelly, 290 Ga. 29(1), 718 S.E.2d 232 (2011); OCGA § 17–8–58(b). Under this standard, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant's substantial rights, and “seriously affects the fairness, integrity or public reputation” of the judicial proceedings. [Cit.]

Durham v. State, 292 Ga. 239, 240–241(3), 734 S.E.2d 377 (2012). Under this standard, assuming without deciding that Norton did not affirmatively waive error, see Cheddersingh v. State, 290 Ga. 680, 683–684(2), 724 S.E.2d 366 (2012), Norton cannot show that the court's instruction affected his substantial rights “which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.” Kelly, supra at 32(2)(a), 718 S.E.2d 232. The court's instructions in response to the jury's request adequately advised it of the procedure to be followed and, had the court repeated all of its earlier instructions regarding the recording, it would not have...