Alvelo v. State

724 S.E.2d 377, 290 Ga. 609, 2012 Fulton County D. Rep. 592, 2012 WL 603210, 2012 Ga. LEXIS 202
CourtSupreme Court of Georgia
DecidedFebruary 27, 2012
DocketS11A1979
StatusPublished
Cited by65 cases

This text of 724 S.E.2d 377 (Alvelo v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvelo v. State, 724 S.E.2d 377, 290 Ga. 609, 2012 Fulton County D. Rep. 592, 2012 WL 603210, 2012 Ga. LEXIS 202 (Ga. 2012).

Opinion

BENHAM, Justice.

Appellant Stephen Alvelo was convicted of the malice murder of Walter Cooper, the aggravated assaults and false imprisonments of Melissa Williams and Joey Freitag, possession of a knife during the commission of a crime, and concealing a death.1 He brings this appeal from the trial court’s denial of his amended motion for new trial, following this Court’s remand of the case to the trial court. See Alvelo v. State, 288 Ga. 437 (704 SE2d 787) (2011).

Walter Cooper’s body was found wrapped in a comforter under a mattress on the front porch of a house he shared with appellant and fellow victims Melissa Williams and Joey Freitag. The forensic pathologist who conducted the autopsy on Cooper testified that he died as a result of “multiple sharp force injuries,” some of which were consistent with having been inflicted with a knife found in the kitchen and some with having been inflicted with an object like the hatchet found at the scene. Ms. Williams testified that she and Freitag returned to the residence on August 11, 2006, to find appellant, with a “crazy” look in his eyes, cleaning up blood in the kitchen. Appellant grabbed a hatchet from a kitchen countertop and [610]*610ordered Freitag and Williams to kneel on the floor. Armed with the hatchet, appellant approached Freitag and Williams and struck Williams on her head and her spine with the hatchet before she was able to wrest the weapon from him and flee the house. Freitag, whom Williams described as frozen with fear, testified that appellant grabbed him and yanked him down to the floor when Freitag did not obey the order to kneel. Freitag escaped from the house by jumping through a screened window during the struggle between Williams and appellant for control of the hatchet. Both Freitag and Williams testified that appellant was shirtless, and neither of them noticed any wounds on his exposed torso. Police and paramedics who responded to calls for emergency help discovered Cooper’s body, and Ms. Williams identified the comforter in which Cooper’s body was found as one that was kept in the laundry room.

Appellant told police in a recorded interview played for the jury that Cooper attacked him with appellant’s ax and that appellant stabbed Cooper several times with a knife and, upon gaining control of the ax, used it to strike Cooper several times. A forensic specialist for the Savannah-Chatham Metropolitan Police Department testified and surmised, based on the blood-spatter patterns in the house, that the two men fought in the kitchen, where blood from both men was found; that, due to the large amount of blood found under the refrigerator, Cooper was incapacitated near the refrigerator; that, in light of a bloody transfer pattern on a cabinet in the laundry room adjacent to the kitchen, appellant had used a bloodied hand to open the cabinet and retrieve his hatchet which he then used to strike Cooper several times; that, due to bloody drag marks and the saturated blood in the comforter in which appellant was found, that appellant dragged Cooper’s body on the comforter to the front porch and there placed the comforter and body under a mattress.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the malice murder of Cooper, the concealment of Cooper’s death, the aggravated assaults and false imprisonments of Williams and Freitag, and the possession of a knife during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant argues that his conviction and sentence for the aggravated assault of Cooper should be vacated because the conviction merged as a matter of fact into the conviction for the malice murder of Cooper. The indictment charged appellant with assaulting Cooper with a knife and a hatchet, objects likely to result in serious bodily injury when used offensively against another. The malice murder count of the indictment charged appellant with causing Cooper’s death with malice aforethought by use of a knife and a hatchet. As stated earlier, the forensic pathologist found the cause of [611]*611death to be “multiple sharp force injuries.” The State argues the separate conviction for aggravated assault can survive because the forensic pathologist noted that the victim sustained both lethal and non-lethal injuries and the numerous wounds suffered by the victim were not inflicted in quick succession because the blood-spatter evidence established the victim suffered his injuries in several rooms of the house.

OCGA § 16-1-7 (a) prohibits multiple convictions and punishments for the same offense (Drinkard v. Walker, 281 Ga. 211, 212 (636 SE2d 530) (2006)), and subsection (a) (1) prohibits a defendant from being convicted of more than one crime if one crime is included in another. The crime of aggravated assault is included in the crime of malice murder when the former “is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the latter].” OCGA § 16-1-6 (1). The aggravated assault that results in the victim’s death merges as a matter of fact into the murder conviction. When a victim has sustained multiple wounds, the question arises whether one of the injuries is an aggravated assault separate and distinct from the assault that caused the victim’s death.

When a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault. [Cit.] However, a separate judgment of conviction and sentence is authorized if a defendant commits an aggravated assault independent of the act which caused the victim’s death. [Cit.] When a series of stab wounds are separated by a “deliberate interval” and a non-fatal injury is sustained prior to the interval and a fatal injury sustained after the interval, the earlier, non-fatal infliction of injury can serve to support a conviction for aggravated assault. [Cit.]

Culpepper v. State, 289 Ga. 736 (2) (a) (715 SE2d 155) (2011). See also Mikell v. State, 286 Ga. 722 (3) (690 SE2d 858) (2010); Coleman v. State, 286 Ga. 291 (3) (687 SE2d 427) (2009). The forensic pathologist who conducted the autopsy catalogued the victim’s wounds as “chop injuries” that fractured the victim’s skull and incapacitated him and were likely inflicted with the hatchet, “punctures” and “superficial,” “deep,” and “very deep” incisions and stab wounds that were inflicted by knives. The pathologist did not testify as to the order in which the wounds were inflicted and did not describe any specific wound as being a fatal injury, concluding that the victim’s cause of death was due to “multiple sharp force injuries.” In light of the pathologist’s testimony and in the absence [612]*612of evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack upon him, and a fatal injury thereafter, appellant’s conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim. Accordingly, the conviction and sentence for aggravated assault of the murder victim must be vacated and the case remanded for resen-tencing. Cf. Culpepper v. State, supra, 289 Ga. 736; Mikell v. State, supra, 286 Ga.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nicole Duree Guerra v. State
Court of Appeals of Georgia, 2024
Justin Hewett v. State
Court of Appeals of Georgia, 2024
Stryker v. State
900 S.E.2d 579 (Supreme Court of Georgia, 2024)
RHONDA L. WHITE v. KELLIE I. STANLEY
Court of Appeals of Georgia, 2023
Jarodric F. Stringer v. State
Court of Appeals of Georgia, 2023
Christopher Baggett v. State
Court of Appeals of Georgia, 2023
Emery Parrish v. State
Court of Appeals of Georgia, 2022
Roy C. Chambers v. State
Court of Appeals of Georgia, 2021
Thomas Ary v. State
Court of Appeals of Georgia, 2021
State of Iowa v. Gregory Michael Davis
Supreme Court of Iowa, 2020
Paul Serdula v. State
Court of Appeals of Georgia, 2020
Hudson v. State
841 S.E.2d 696 (Supreme Court of Georgia, 2020)
McELRATH v. State
839 S.E.2d 573 (Supreme Court of Georgia, 2020)
Foster v. State
306 Ga. 587 (Supreme Court of Georgia, 2019)
Bowman v. State
306 Ga. 97 (Supreme Court of Georgia, 2019)
Outler v. State
305 Ga. 701 (Supreme Court of Georgia, 2019)
Young v. State
Supreme Court of Georgia, 2019
Roderick Jordan v. State
810 S.E.2d 158 (Court of Appeals of Georgia, 2018)
MATHIS v. the STATE.
807 S.E.2d 4 (Court of Appeals of Georgia, 2017)
Jackson v. State
804 S.E.2d 357 (Supreme Court of Georgia, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
724 S.E.2d 377, 290 Ga. 609, 2012 Fulton County D. Rep. 592, 2012 WL 603210, 2012 Ga. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvelo-v-state-ga-2012.