Tessmer v. State

• Decision Date: 30 November 2000
• Docket Number: No. S00A1397.,S00A1397.
• Parties: TESSMER v. The STATE.
• Court: Georgia Supreme Court

539 S.E.2d 816

273 Ga. 220

TESSMER v. The STATE.

No. S00A1397.

Supreme Court of Georgia.

November 30, 2000.

Reconsideration Denied December 15, 2000.

Katz, Flatau, Popson & Boyer, Sandra J. Popson, Macon, for appellant.

Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

THOMPSON, Justice.

Ethel Elizabeth Tessmer was convicted of felony murder, predicated on the underlying felony of aggravated assault, in connection with the shooting death of her husband, David Newton. This appeal follows the denial of her motion for a new trial.¹

1. Viewing the evidence in a light to uphold the verdict, we find the following: Tessmer, a Barnesville police officer, was head of the Domestic Violence Task Force; she had never been married until she married Newton in September 1997.

Newton was an alcoholic and convicted felon. Tessmer's marriage to Newton was punctuated by Newton's alcoholic outbursts, and his verbal, physical and sexual abuse. Early in January 1998, the abuse escalated to the point that Tessmer left home to live in a motel. However, she returned after only a few hours because she felt that Newton needed her help and that he could be rehabilitated.

On January 9, 1998, Tessmer's mobile home burned to the ground; Tessmer and Newton lost all of their possessions. After a brief stay at the home of Tessmer's parents and a motel, the couple went to live in an apartment. They had two twin mattresses which were placed together on the floor.

From the time the couple moved into the apartment, until Newton's death five days later, Newton was intoxicated and belligerent. He put his fist through a wall in the apartment; he physically abused Tessmer and gave her a bloody nose.

On the night in question, the abuse escalated even more. Newton forced Tessmer to have sex with him. Then he physically abused Tessmer by putting her in several "wrestling holds": he wrenched her arm, bent her fingers, and squeezed her until she could hardly breathe.

Later, when the situation calmed down, Tessmer moved to the floor next to her mattress, and Newton sat on his mattress. Although she did not consider Newton to be a threat at that time, Tessmer removed her.40 caliber service pistol from under her mattress. She pointed it at Newton² and put her finger on the trigger because she wanted to scare him,³ and was just "tired of all of it." The pistol discharged and Newton was shot in the chest.

According to Tessmer, Newton grabbed her hands as she held her pistol, and he put his thumb in the trigger well, causing the pistol to fire.⁴ However, no gunshot residue was found on Newton's hands. Moreover, the medical examiner opined that, since Newton was so intoxicated, it was highly unlikely that he would have been able to place his thumb in the trigger well.

The evidence was sufficient to enable any rational trier of fact to find Tessmer guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Stiles v. State, 264 Ga. 446, 448 S.E.2d 172 (1994).

2. The trial court charged the jury on the law of aggravated assault, and, in that regard, it included instructions on the defenses of accident and justification. See Turner v. State, 262 Ga. 359, 418 S.E.2d 52 (1992) (jury charges on both accident and justification authorized when defendant asserts his weapon discharged accidentally while he was defending himself). The trial court went on to define felony murder and to instruct the jury that the underlying felony in this case was aggravated assault. However, the trial court charged that accident was not a defense to felony murder:

If it is shown by the evidence beyond a reasonable doubt that the injury to the alleged victim occurred by the discharge of a gun held by the accused and used in an attempt to place the alleged victim in reasonable apprehension of immediately receiving a violent injury, the accused would not be able to claim the defense of accident or misfortune even if the discharge of the gun was unintentional.⁵

Tessmer asserts the trial court erred by instructing the jury that accident was a defense to the underlying felony of aggravated assault, but it was not a defense to felony murder. We disagree.

Under Georgia law "[a] person ... commits the offense of murder when, in the commission of a felony, he [or she] causes the death of another human being, irrespective of malice." OCGA § 16-5-1(c). Malice means the intent to take a life without legal justification or mitigation. Brown v. State, 270 Ga. 601, 604, 512 S.E.2d 260 (1999). Thus, malice, or the intent to kill, is not an element of felony murder. "Proof of felony murder does not require proving malice or the intent to kill, but only that the defendant had the requisite criminal intent to commit the underlying felony. Franklin v. State, 268 Ga. 865, 866(1), 494 S.E.2d 327 (1998)." Martin v. State, 271 Ga. 301, 303(1), 518 S.E.2d 898 (1999). It follows that the trial court did not err in charging the jury that, while accident can be a defense to the underlying felony of aggravated assault, it cannot be a defense to a felony murder predicated upon the underlying felony of aggravated assault. See Turner v. State, supra at 361(3), 418 S.E.2d 52, in which this Court approved a charge which is nearly identical to the charge in question so long as it is given with an appropriate charge on the law of accident or misfortune. After all, mens rea is a necessary element of aggravated assault; but it is not a separate component of felony murder.

Turner v. State, supra at 359(2), 418 S.E.2d 52, is inapposite insofar as it reversed the trial court for refusing to charge on both accident and self-defense. In that felony murder case, the trial court refused to charge the jury on the law as to both justification and accident, finding the charges to be mutually exclusive. The trial court did charge the law of self-defense, but not accident. This court reversed, holding that the facts of the case presented a situation where the law on both accident and self-defense should be charged.

In this case, unlike Turner, the trial court did charge the law on both accident and self-defense, albeit with respect to the underlying felony only. Inasmuch as the trial court gave a complete charge on the underlying felony of aggravated assault, including the defenses of justification and accident, and also instructed the jury that it could not convict for felony murder unless Tessmer was found guilty of the underlying felony of aggravated assault, we find the charge to be complete and correct.

3. Relying upon Edge v. State, 261 Ga. 865, 867, fn. 3, 414 S.E.2d 463 (1992), Tessmer asserts the trial court committed reversible error because it failed to charge the jury that if it found the aggravated assault was the result of provocation and passion, it could not find felony murder, but would be authorized, but not required, to find voluntary manslaughter. See Harrison v. State, 268 Ga. 574, 576, 492 S.E.2d 218 (1997); Russell v. State, 265 Ga. 203, 205, 455 S.E.2d 34 (1995). We disagree.

We do not require the trial courts to follow an exact formula in instructing juries so long as the charge as a whole ensures that the jury will consider whether evidence of provocation and passion might authorize a verdict of voluntary manslaughter.

Suah v. State, 271 Ga. 89, 90(2), 515 S.E.2d 614 (1999). Viewing the charge as a whole, we find that the jury was instructed properly that it should first consider evidence of passion and provocation to determine whether Tessmer was guilty of voluntary manslaughter. Thus, unlike Harrison v. State, supra, the trial court did not give an improper sequential charge. Furthermore, the verdict form demonstrates that the jury followed the trial court's instruction—it considered voluntary manslaughter and found Tessmer "not guilty" of that offense. Thus, the purpose of Edge was achieved. Lajara v. State, 263 Ga. 438, 440, 435 S.E.2d 600 (1993) (giving of sequential charge is not reversible error where verdict form demonstrates that jury considered and rejected offense of voluntary manslaughter).

4. The trial court did not err in permitting an expert to testify in rebuttal that, in his opinion, Tessmer was not suffering from the battered person syndrome, and that she did not believe that force was necessary to avoid death or great bodily injury. On direct examination, Tessmer's own expert averred that she did suffer from the battered person syndrome and did believe death or great bodily injury was imminent. Thus, the State's expert rebutted the testimony of Tessmer's expert. Contrary to Tessmer's assertion, the State's expert did not comment on Tessmer's veracity—he simply commented on the applicability of the battered person syndrome to the facts of this case.

5. Of the 30 potential jurors, 17 were female and 13 were male. Tessmer used 9 of 12 peremptory challenges to strike male jurors. The State challenged Tessmer's strikes, asserting she had engaged in gender discrimination.

The trial court determined that the State set forth a prima facie case of gender discrimination, and it called upon Tessmer to come forward with gender-neutral reasons for her strikes. Tessmer's counsel explained why she struck the male jurors. As to Willie Williams, Tessmer's counsel said that she found him to be very soft spoken and did not think he would stand by his convictions. She added that Williams was a veteran of the army. The State countered by pointing out that Tessmer did not strike soft spoken women jurors, nor did she strike another army veteran. The trial court determined that the strike was exercised in a discriminatory manner and it ordered that Williams be seated on the jury.

Tessmer asserts the trial court...