FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
February 18, 2014
In the Court of Appeals of Georgia A13A1937. MOORE v. THE STATE.
BOGGS, Judge.
Errol Alexis Moore Jr. was indicted for malice murder, two counts of felony
murder, two counts of aggravated assault, three counts of concealing a death,
tampering with evidence, and making a false statement. A jury found Moore guilty
of the lesser included offense of voluntary manslaughter on malice murder, guilty of
voluntary manslaughter on one felony murder count, not guilty on the second felony
murder count, and not guilty on one count of aggravated assault. He was found guilty
on all remaining charges. The trial court merged the aggravated assault and voluntary
manslaughter convictions but sentenced Moore to separate and consecutive terms on
each remaining conviction. After denial of his motion for new trial, Moore appeals,
asserting that the trial court erred in: (1) the admission of his custodial statement; (2) the refusal to charge on misdemeanor involuntary manslaughter as a lesser included
offense; and (3) the failure to merge the three convictions for concealing a death at
sentencing. On the basis of our Supreme Court’s decision in Nazario v. State, 293 Ga.
480 (746 SE2d 109) (2013), which was decided after entry of the trial court’s order,
we vacate two of Moore’s convictions for concealing a death. With respect to
Moore’s remaining claims, we find no error and affirm.
1. Moore first complains that the trial court erred in admitting his oral and
written custodial statements, claiming that the State failed to prove that they were not
induced by hope of benefit or fear of injury. “To make a confession admissible, it
must have been made voluntarily, without being induced by another by the slightest
hope of benefit or remotest fear of injury.” OCGA § 24-3-50.
When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous. Likewise, factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.
(Citation and punctuation omitted.) Kania v. State, 280 Ga. App. 356, 358 (1) (634
SE2d 146) (2006).
2 At the Jackson-Denno hearing,1 the detective denied that he told Moore “that
he was not going to leave until he told [the detective] what he needed to hear[.]” He
also explained that when he asked Moore if he wanted “everyone” to “go down” for
the crime, he meant that Moore’s friend and his mother could be arrested if evidence
was found indicating that they had participated in the crime. See Smith v. State, 291
Ga. App. 535, 537 (662 SE2d 305) (2008) (statement that wife was target of police
investigation merely made appellant “aware of potential legal consequences” and was
“in the nature of a mere truism”).
Here, the trial court explicitly found the police officer more credible than
Moore, and it found that the officer “did not tell [Moore] that he could not leave until
he heard what he wanted,” but that Moore was free to leave and was not under arrest.
The court further found that the detective’s statements that Moore’s friend and mother
could be arrested if evidence showed they were involved in the crime were “mere
truisms or recounting of facts rather than a threat of injury or promise of benefit.”
(Citations and punctuation omitted.)
“[T]he trial court’s factual and credibility determinations must be accepted by
this Court unless clearly erroneous. And since the trial court’s findings were
1 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
3 supported by [the officer’s] testimony — though contradicted by other evidence —
they are not clearly erroneous and must be affirmed.” (Citations, punctuation, and
footnotes omitted.) State v. Johnson, 273 Ga. App. 324, 327 (615 SE2d 163) (2005).2
2. Moore next contends that the trial court erred in refusing to give his
requested charge on misdemeanor involuntary manslaughter. After the trial court
instructed the jury and asked if there were any objections to the charge, Moore did not
renew his objection. We must therefore review the charge for plain error, even though
Moore has not argued plain error on appeal. See State v. Kelly, 290 Ga. 29, 32 (1) n.
2 (718 SE2d 232) (2011). But “the hurdle to establishing plain error is high” and “the
failure to specifically articulate how the alleged error satisfies this high standard
increases the likelihood that … claims in this regard will be rejected.” Id. at 32 n.2
(1). In reviewing the refusal to give this charge, we find no plain error and indeed no
error.
Moore contends that the requested charge is justified by his statement to police
that the victim attacked him, and that he accidentally strangled her in an attempt to
restrain her. Although that scenario is not supported by the testimony cited by Moore,
2 Moore cites Johnson in support of his argument because in that case the trial court excluded the custodial statement. But as in Johnson, we must affirm when evidence, even if contradicted, supports the trial court’s decision. Id.
4 he contends that the jury could have found that he committed a lawful act in a
criminally negligent manner. But this argument has been rejected by the Georgia
Supreme Court. See Demery v. State, 287 Ga. 805, 809 (3) (700 SE2d 373) (2010)
(“One who seeks to justify homicide as having been committed in self-defense is not
entitled to an additional instruction on involuntary manslaughter resulting from the
commission of a lawful act in an unlawful manner”); Saylors v. State, 251 Ga. 735,
737 (3) (309 SE2d 796) (1983) (“[I]f [a defendant] is justified in killing under OCGA
§ 16-3-21[] [he] is guilty of no crime at all. If [he] is not so justified, the homicide
does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b)[], for the jury,
in rejecting [his] claim of justification, has of necessity determined thereby that the
act is not lawful.” (Emphasis in original.) )
3. Finally, Moore contends that the trial court erred in refusing to merge his
three convictions for concealing a death. The trial court entered a well-reasoned,
detailed order analyzing this question, but it did not have the benefit of the Georgia
Supreme Court’s recent decision in Nazario, supra. There, a defendant pleaded guilty
to 17 counts of a 26-count indictment, including five counts of concealing the death
of his girlfriend by various acts, including concealing the body, hiding incriminating
evidence, binding and gagging two of the victim’s three children, and kidnapping the
5 third child. 293 Ga. at 491-492 (3) (d). He contended that those counts should have
been merged into a single conviction, and our Supreme Court agreed. Id. The Court
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
February 18, 2014
In the Court of Appeals of Georgia A13A1937. MOORE v. THE STATE.
BOGGS, Judge.
Errol Alexis Moore Jr. was indicted for malice murder, two counts of felony
murder, two counts of aggravated assault, three counts of concealing a death,
tampering with evidence, and making a false statement. A jury found Moore guilty
of the lesser included offense of voluntary manslaughter on malice murder, guilty of
voluntary manslaughter on one felony murder count, not guilty on the second felony
murder count, and not guilty on one count of aggravated assault. He was found guilty
on all remaining charges. The trial court merged the aggravated assault and voluntary
manslaughter convictions but sentenced Moore to separate and consecutive terms on
each remaining conviction. After denial of his motion for new trial, Moore appeals,
asserting that the trial court erred in: (1) the admission of his custodial statement; (2) the refusal to charge on misdemeanor involuntary manslaughter as a lesser included
offense; and (3) the failure to merge the three convictions for concealing a death at
sentencing. On the basis of our Supreme Court’s decision in Nazario v. State, 293 Ga.
480 (746 SE2d 109) (2013), which was decided after entry of the trial court’s order,
we vacate two of Moore’s convictions for concealing a death. With respect to
Moore’s remaining claims, we find no error and affirm.
1. Moore first complains that the trial court erred in admitting his oral and
written custodial statements, claiming that the State failed to prove that they were not
induced by hope of benefit or fear of injury. “To make a confession admissible, it
must have been made voluntarily, without being induced by another by the slightest
hope of benefit or remotest fear of injury.” OCGA § 24-3-50.
When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous. Likewise, factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.
(Citation and punctuation omitted.) Kania v. State, 280 Ga. App. 356, 358 (1) (634
SE2d 146) (2006).
2 At the Jackson-Denno hearing,1 the detective denied that he told Moore “that
he was not going to leave until he told [the detective] what he needed to hear[.]” He
also explained that when he asked Moore if he wanted “everyone” to “go down” for
the crime, he meant that Moore’s friend and his mother could be arrested if evidence
was found indicating that they had participated in the crime. See Smith v. State, 291
Ga. App. 535, 537 (662 SE2d 305) (2008) (statement that wife was target of police
investigation merely made appellant “aware of potential legal consequences” and was
“in the nature of a mere truism”).
Here, the trial court explicitly found the police officer more credible than
Moore, and it found that the officer “did not tell [Moore] that he could not leave until
he heard what he wanted,” but that Moore was free to leave and was not under arrest.
The court further found that the detective’s statements that Moore’s friend and mother
could be arrested if evidence showed they were involved in the crime were “mere
truisms or recounting of facts rather than a threat of injury or promise of benefit.”
(Citations and punctuation omitted.)
“[T]he trial court’s factual and credibility determinations must be accepted by
this Court unless clearly erroneous. And since the trial court’s findings were
1 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
3 supported by [the officer’s] testimony — though contradicted by other evidence —
they are not clearly erroneous and must be affirmed.” (Citations, punctuation, and
footnotes omitted.) State v. Johnson, 273 Ga. App. 324, 327 (615 SE2d 163) (2005).2
2. Moore next contends that the trial court erred in refusing to give his
requested charge on misdemeanor involuntary manslaughter. After the trial court
instructed the jury and asked if there were any objections to the charge, Moore did not
renew his objection. We must therefore review the charge for plain error, even though
Moore has not argued plain error on appeal. See State v. Kelly, 290 Ga. 29, 32 (1) n.
2 (718 SE2d 232) (2011). But “the hurdle to establishing plain error is high” and “the
failure to specifically articulate how the alleged error satisfies this high standard
increases the likelihood that … claims in this regard will be rejected.” Id. at 32 n.2
(1). In reviewing the refusal to give this charge, we find no plain error and indeed no
error.
Moore contends that the requested charge is justified by his statement to police
that the victim attacked him, and that he accidentally strangled her in an attempt to
restrain her. Although that scenario is not supported by the testimony cited by Moore,
2 Moore cites Johnson in support of his argument because in that case the trial court excluded the custodial statement. But as in Johnson, we must affirm when evidence, even if contradicted, supports the trial court’s decision. Id.
4 he contends that the jury could have found that he committed a lawful act in a
criminally negligent manner. But this argument has been rejected by the Georgia
Supreme Court. See Demery v. State, 287 Ga. 805, 809 (3) (700 SE2d 373) (2010)
(“One who seeks to justify homicide as having been committed in self-defense is not
entitled to an additional instruction on involuntary manslaughter resulting from the
commission of a lawful act in an unlawful manner”); Saylors v. State, 251 Ga. 735,
737 (3) (309 SE2d 796) (1983) (“[I]f [a defendant] is justified in killing under OCGA
§ 16-3-21[] [he] is guilty of no crime at all. If [he] is not so justified, the homicide
does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b)[], for the jury,
in rejecting [his] claim of justification, has of necessity determined thereby that the
act is not lawful.” (Emphasis in original.) )
3. Finally, Moore contends that the trial court erred in refusing to merge his
three convictions for concealing a death. The trial court entered a well-reasoned,
detailed order analyzing this question, but it did not have the benefit of the Georgia
Supreme Court’s recent decision in Nazario, supra. There, a defendant pleaded guilty
to 17 counts of a 26-count indictment, including five counts of concealing the death
of his girlfriend by various acts, including concealing the body, hiding incriminating
evidence, binding and gagging two of the victim’s three children, and kidnapping the
5 third child. 293 Ga. at 491-492 (3) (d). He contended that those counts should have
been merged into a single conviction, and our Supreme Court agreed. Id. The Court
reasoned that, since OCGA § 16-10-31 refers to “the death” and “a discovery,” “the
gravamen of the offense is conduct that hinders ‘a discovery’ that a person has been
unlawfully killed by concealing that death.” Id. at 491 (3) (d). It concluded that
multiple acts employed in concealing a single death merge as a matter of fact into one
conviction. Id.
The State’s contention that Nazario can be distinguished because it involved
a guilty plea and a limited record is without merit. While the Supreme Court
acknowledged that the limited factual record prevented a full analysis of Nazario’s
other merger claims, id. at 490 (3) (a) and (b), its analysis of the charges of
concealing a death addressed the language of the statute and the factual basis for the
plea, and found that all of Nazario’s acts “were part of a course of conduct that
hindered a single discovery of a single unlawful killing by concealing that death.” Id.
at 491 (3) (d). Similarly, here all of Moore’s acts were intended to hinder a single
discovery of the single unlawful killing of his girlfriend by concealing her death.
Therefore, as in Nazario, we must vacate two of the three convictions and sentences
6 for concealing the death of another. Id. at 492. His remaining convictions and
sentences are affirmed.
Judgment affirmed in part and vacated in part and case remanded for
resentencting. Doyle, P. J., and McFadden, J., concur.