White v. The State

Citation287 Ga. 713,699 S.E.2d 291
Decision Date26 July 2010
Docket NumberNo. S10A0580.,S10A0580.
PartiesWHITEv.The STATE.
CourtSupreme Court of Georgia

287 Ga. 713
699 S.E.2d 291

WHITE
v.
The STATE.

No. S10A0580.

Supreme Court of Georgia.

June 28, 2010.
Reconsideration Denied July 26, 2010.


699 S.E.2d 292

COPYRIGHT MATERIAL OMITTED

699 S.E.2d 293

COPYRIGHT MATERIAL OMITTED

699 S.E.2d 294
Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Elizabeth A. Baker, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Reggie A. Lampkin, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Appellant Joseph White was convicted of and sentenced to life imprisonment for the malice murder of Nellie Mae Kirkland. He was also convicted of and sentenced for concealing the death of the victim and for tampering with evidence.1 On appeal, he contends he was not afforded effective assistance of counsel, he challenges the sufficiency of the evidence and the removal of a juror during the trial, and he argues the trial court erred in its charge to the jury.

Shortly after 8:00 a.m. on July 10, 2005, a police officer found the nightgown-clad body of a woman lying face-down in a pool of blood in a parking area of a city park in southwest Atlanta. The forensic pathologist who performed the autopsy on the body testified she had suffered multiple blunt force trauma to her head, with the cause of death being strangulation. The body had post-mortem abrasions on her back, buttocks, heels, and right thigh, shoulder, wrist and hand, most likely inflicted when she was dragged by the feet and by the wrists or underarms to the site where she was found. Between 8:00-8:30 that same morning, appellant Joseph White telephoned the daughter of Nellie Mae Kirkland, the woman he lived with in southwest Atlanta, and reported that Ms. Kirkland was not at her home but her purse and vehicle were there. The daughter called police to report her mother was missing and went to her mother's home, one-tenth of a mile from the park in which the woman's body had been found.

699 S.E.2d 295

The homicide unit commander of the Atlanta Police Department testified that at about noon on July 10 he was approaching the site where the dead woman's body had been found, and appellant flagged him down to report that his girlfriend was missing. A detective who was investigating the homicide came to the home of the missing woman after being contacted by the missing woman's daughter, who feared her mother was the woman found in the park. The detective and the missing woman's son walked through the tidy home and found the victim's walking cane and purse, and the detective noticed what appeared to be blood on appellant's calf. The missing woman's son took a photograph of his mother to the county morgue where the woman found in the park was identified as being Ms. Kirkland. Police executed a search warrant at the victim's home and discovered blood-soaked sheets, pillows, and mattress on a bed that had been made, and blood on a leg of a nightstand and on a cardboard box in the bedroom. When the searching officers lifted the mattress, they found a knife lodged in the center of the bed between the mattress and box springs. Found in the backseat of the patrol car used to transport appellant to police offices were two cardboard scraps from the box in the bedroom, which scraps contained blood determined to be that of the victim.

The victim's children testified their mother had told them she planned to have appellant leave her home because he had resumed using illegal drugs and she feared him and his bizarre behavior. The victim had made arrangements for one of her children to change the locks on the victim's home when appellant next left for work. An acquaintance of appellant testified that between 8:00-9:00 a.m. on July 10, appellant, with a few scratches on his hands, visited her home where he bought and consumed alcoholic beverages.

Appellant testified he had spent July 9 smoking crack cocaine and drinking wine and beer, and the victim had realized how he had spent the day when she returned home at 9:00 p.m. While the two were in a bedroom, the victim berated appellant about his behavior, mentioned her regret at having recently made a $4,000 down payment on the vehicle he used, and then slapped him, pushed him down on the bed, and jumped on him. He was able to get her off him, at which point the victim swung at him with a knife, and he pushed her, causing her to strike her face on the nightstand. According to appellant, the victim stood up and went into the kitchen, leaving appellant in the bedroom. Fifteen minutes later, appellant found her on the kitchen floor and, believing her to be dead, left the house. He returned 30-40 minutes later, found her in the same place he had left her, and dragged her body from the house to the park, falling down the six front steps of the house and causing the victim's head to repeatedly hit the steps. He returned to the house, cleaned up, and called the victim's daughter and asked where her mother was.

1. Appellant contends the evidence presented by the State was not sufficient to support the jury's guilty verdicts.

(a) Appellant's concerns about the jury's guilty verdicts for felony murder/aggravated assault and aggravated assault are moot since the felony murder conviction was vacated by operation of law ( Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993)), and the trial court found the aggravated assault conviction to have merged into the malice murder conviction as a matter of fact. OCGA § 16-1-7(a). See Joachim v. State, 263 Ga. 816(2), 440 S.E.2d 15 (1994).

(b) Appellant argues the evidence did not establish the legal malice necessary to authorize a conviction on malice murder and did not disprove appellant's contention he acted in self-defense.

[I]n Georgia, the crime of malice murder is committed when the evidence shows either an express or, in the alternative, an implied intent to commit an unlawful homicide.... Thus, a malice murder can be shown not only by evidence that the defendant acted with the “deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof,” but also by evidence that the defendant acted “where no considerable provocation appears and where all the circumstances of
699 S.E.2d 296
the killing show an abandoned and malignant heart.” OCGA § 16-5-1(b). In other words, evidence that the defendant acted with implied malice is, for purposes of demonstrating his guilt of the crime of malice murder, no less probative than proof that he acted with specific intent to kill.... “[I]mplied malice,” as employed in OCGA § 16-5-1(b), is “a term which has been defined to mean conduct exhibiting a ‘reckless disregard for human life.’ [Cits.]”

Parker v. State, 270 Ga. 256(4), 507 S.E.2d 744 (1998). As stated earlier, there was testimony that the victim was going to require appellant to move out of her house because of his bizarre behavior brought about by his drug usage. It is for a jury to determine from all the facts and circumstances whether a killing is intentional and malicious ( Oliver v. State, 276 Ga. 665(1), 581 S.E.2d 538 (2003)), and there was evidence to support the jury's verdict. Likewise, the issues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant's claim that he acted in self-defense Webb v. State, 284 Ga. 122(1), 663 S.E.2d 690 (2008). A detective testified that the knife was found between the mattress and box springs in the middle of the bed only after officers had removed the mattress, and that the knife did not become a factor in appellant's version of events until after the detective told appellant of its discovery. The evidence was sufficient to authorize the jury to conclude appellant did not act in self-defense.

Appellant also asserts the trier of fact could not arbitrarily reject his testimony since he was an unimpeached witness whose testimony was not contradicted, incredible, impossible, or inherently improbable. See Tate v. State, 264 Ga. 53, 59, 440 S.E.2d 646 (1994) (Carley, J., dissenting). In affirming the trial court's grant of a motion to suppress (and reversing the Court of Appeals's reversal thereof), the majority in Tate, 264 Ga. at 56, 440 S.E.2d 646, ruled that a “trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony[,]” noting that “a rational trier of fact can choose to reject even ‘undisputed’ testimony if that factfinder believes that witness's testimony to be unreliable. Factors such as demeanor, contradictory or inconsistent statements and evidence that [a witness] had ‘ulterior motives' can all lead a trier of fact to disregard testimony....” Id. at n. 5. Even if we assume for the sake of argument that the rule cited in the Tate dissent remains viable in criminal cases in which the unimpeached and uncontradicted testimony is presented by the defense (see Agnor on Georgia Evidence, Sec. 18:6 (4th ed.) and State v. Hester, 268 Ga.App. 501, 505, n. 13, 602 S.E.2d 271 (2004), suggesting such a possibility), appellant does not meet the initial criterion for application of the rule since he was impeached by his prior inconsistent statements concerning the cause of the victim's death and his knowledge of her whereabouts. See State v. Brown, 278 Ga.App. 457, 460-461, 629 S.E.2d 123 (2006).

(c) Pointing out that had the victim's body been left in the bedroom of her home it would have been discovered at a later time on July 10 than when the body was discovered in the park, appellant concludes that the evidence was not sufficient to authorize his conviction for concealing the death of another. OCGA § 16-10-31 makes criminal a person's conduct when that person hinders the discovery of whether or not another person was unlawfully killed by concealing the death of the other person. Phelps v. State, 278 Ga. 402(2), 603 S.E.2d 236 (2004). By telling the victim's children and police that...

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