Simpson v. State, S15A1365.

CourtSupreme Court of Georgia
Citation298 Ga. 314,781 S.E.2d 762
Docket NumberNo. S15A1365.,S15A1365.
Parties SIMPSON v. The STATE.
Decision Date19 January 2016

298 Ga. 314
781 S.E.2d 762


No. S15A1365.

Supreme Court of Georgia.

Jan. 19, 2016.

781 S.E.2d 764

Kenneth Wayne Sheppard, Smyrna, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Michael Alexander Oldham, Asst. Atty. Gen., Department of Law, Herbert E. Franklin Jr., Dist. Atty., Elizabeth O. Evans, Asst. Dist. Atty., Lookout Mountain District Attorney's Office, Lafayette, for appellee.


298 Ga. 314

Joshua Samuel Simpson was tried by a Walker County jury and convicted of murder and aggravated assault, both in connection with the killing of Michael Wyscaver. Simpson appeals, contending that the evidence is legally insufficient to sustain his convictions, that the trial court erred both when it admitted certain photographs of the victim and when it charged the jury, and that he was denied the effective assistance of counsel. Upon our review of the record and the briefs, we conclude that the aggravated assault should have merged with the murder, and so, we vacate the separate conviction and sentence as to aggravated assault. We see no other error, however, and we otherwise affirm the judgment of the trial court.1

1. Viewed in the light most favorable to the verdict, the evidence shows that Wyscaver's decomposing body was found in an abandoned house on August 29, 2008. Prior to the discovery of his body, his conservator had not seen or heard from Wyscaver for a couple of weeks. A forensic examination indicated that Wyscaver had died of blunt force trauma to his head. A computer monitor, a computer tower, and some two-by-four pieces of wood were lying on the floor next to his body.

Soon after the discovery of the body, police officers interviewed Simpson, who was an acquaintance of Wyscaver. Simpson admitted that about two weeks earlier, Wyscaver had suggested that they look in the abandoned house for items they could sell. When Simpson bent over to pick something up, Wyscaver approached him from behind, placed one hand on his shoulder and one hand on his lower stomach, and said that they could "do something to have fun together." Simpson said that he "freaked out" as a result of these advances, punched Wyscaver in the face, grabbed a two-by-four, and began hitting Wyscaver in the head with it. When the wood broke, Simpson picked up a computer tower and struck Wyscaver in the head

781 S.E.2d 765

with it.

298 Ga. 315

Simpson claimed that Wyscaver then tried to get back up, so Simpson hit Wyscaver in the head with the computer monitor and fled the scene. In the days following the attack, Simpson did not return to the abandoned home, fearing that he would find Wyscaver dead. Simpson confided in his uncle that he had been in a fight with Wyscaver at the abandoned house and had hit him with a computer.

Simpson claims that the evidence is not sufficient to prove beyond a reasonable doubt that he was the person who committed any of the crimes charged. But his statement was corroborated by police investigators, the medical examiner, and Simpson's uncle. See Wise v. State, 292 Ga. 447, 449(1), 738 S.E.2d 580 (2013). Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that the evidence was more than sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Simpson was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).2

2. Simpson contends that the trial court erred when it admitted certain photographs of the victim as evidence because their probative value was outweighed by their prejudicial effect. Some of the photographs to which Simpson objects show Wyscaver's body at the scene of the crime, and others show the body just before the autopsy. Those crime-scene and pre-autopsy photographs were properly admitted into evidence "to show the nature and extent of the wounds and the location of physical evidence at the scene, as well as to assist the testimony of the medical examiner." Leslie v. State, 292 Ga. 368, 372(5), 738 S.E.2d 42 (2013). See also Wilcher v. State, 291 Ga. 613, 614(2), 732 S.E.2d 81 (2012).

The remaining photographs in question show Wyscaver's skull after all the soft tissue had been removed. "As we have explained, a photograph that depicts the victim after autopsy incisions is admissible when necessary to show some material fact which becomes

298 Ga. 316

apparent only because of the autopsy." McKibbins v. State, 293 Ga. 843, 852(5), 750 S.E.2d 314 (2013) (citation and punctuation omitted). In this case, the record includes eighteen post-autopsy photographs of Wyscaver's skull, but only six of them—which Simpson conceded were not duplicative—were admitted into evidence and presented to the jury. See Stewart v. State, 286 Ga. 669, 670(3), 690 S.E.2d 811 (2010). And the forensic anthropologist who assisted the medical examiner testified that these photographs showed different injuries that were identified only upon examining the exposed skull. Moreover, this evidence corroborated Simpson's statements that he repeatedly struck Wyscaver in the head. Consequently, the trial court did not abuse its discretion when it admitted the post-autopsy photographs. See McKibbins, 293 Ga. at 852–853(5), 750 S.E.2d 314 ; Carr v. State, 265 Ga. 477(1), 457 S.E.2d 559 (1995) (photograph of the victim's skull demonstrated material facts concerning the cause of death, blunt head trauma, and was admissible to assist the pathologist in describing the cause of death). See also Spears v. State, 296 Ga. 598, 612(10), 769 S.E.2d 337 (2015) ; Bunnell v. State, 292 Ga. 253, 258(5), 735 S.E.2d 281 (2013).

3. Simpson next claims that three of the trial court's jury charges were improper under the evidence. But he objected to one

781 S.E.2d 766

of those charges only at the charge conference. See OCGA § 17–8–58(a). See also Merritt v. State, 292 Ga. 327, 330(2), 737 S.E.2d 673 (2013). And Simpson failed to object to another charge on the specific ground that he now raises on appeal. See OCGA § 17–8–58(a). See also Woodard v. State, 296 Ga. 803, 806(2), 771 S.E.2d 362 (2015) ; Colzie v. State, 289 Ga. 120, 124–125(4), 710 S.E.2d 115 (2011). Accordingly, appellate review of each of these two charges is available only to the extent that the giving of the charge constituted plain error affecting the substantial rights of the parties. See Woodard, 296 Ga. at 806(2), 771 S.E.2d 362 ; Merritt, 292 Ga. at 330(2), 737 S.E.2d 673. Yet Simpson has not explained how either charge lacks evidentiary support, much less how it satisfies the "plain error" standard. See State v. Kelly, 290 Ga. 29, 32 n. 2(1), 718 S.E.2d 232 (2011) ("parties should be advised that the hurdle to establishing plain error is high ..., and therefore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected").

Nevertheless, we have reviewed the charges in light of the record, and we conclude that the evidence supported both of the charges that are subject to "plain error" review. One of these charges is the pattern instruction on causation in a homicide case and has been approved by this Court. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.10.60 (4th ed.2007, updated through July 2015);

298 Ga. 317

Milford v. State, 291 Ga. 347, 350(3)(d), 729 S.E.2d 352 (2012) ; Green v. State, 266 Ga. 758, 759–760(2)(b), 470 S.E.2d 884 (1996). That charge finds an evidentiary basis in Simpson's own statement admitting that he used multiple weapons to inflict head injuries on Wyscaver, as well as the evidence that blunt head trauma consistent with use of those weapons caused his death. See Brady v. State, 159 Ga.App. 389, 390(2), 283 S.E.2d 617 (1981). The other charge that we review for plain error is the pattern instruction on the use of excessive or unlawful force while acting in self-defense and also has been approved by this Court. See...

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