McKELVIN v. State

• Court: Supreme Court of Georgia
• Decided: February 4, 2019
• Docket: S18A1031
• Status: Published

Opinion

In the Supreme Court of Georgia

Decided: February 4, 2019

S18A1031. McKELVIN v. THE STATE.

BENHAM, Justice.

Appellant Joshua McKelvin was convicted of murdering Marilyn

Patterson and assaulting Myra Youngblood, Belinda Hines, and Zeddie Holley.

On appeal, Appellant contends that the trial court erred by concluding that the

defense of involuntary intoxication necessitated pretrial notice to the State; by

requiring him to provide the State with a copy of his pretrial mental evaluation;

by refusing to excuse a juror and declare a mistrial; by admitting certain rap

lyrics into evidence; and by denying a mistrial after, he says, evidence placed his

character at issue.1 Finding no reversible error, we affirm.

1 In August 2013, a Turner County grand jury indicted Appellant as follows: malice murder (Patterson), three counts of aggravated assault with a deadly weapon (Youngblood, Hines, and Holley), and four counts of possession of a firearm during the commission of a felony. Following a trial conducted March 31 – April 2, 2015, a jury found Appellant guilty on all counts. The trial court sentenced Appellant to life imprisonment without parole for malice murder, 20 years’ imprisonment for each count of aggravated assault (to run concurrent with the sentence for malice murder), and consecutive five-year prison terms for each of the weapons charges, for a total In June 2013, Appellant and Patterson were staying together in a room at

the Ashburn Inn in Turner County, Georgia, and found work at a nearby

watermelon farm. On the day in question, Appellant became frustrated with the

pace of work on his watermelon-packing line and hit Youngblood with a

watermelon; a verbal altercation ensued between Appellant and Youngblood’s

fiancé, but it was settled without escalation. Later that evening at the motel –

where other workers from the watermelon farm were also staying – Appellant

tried to reignite the feud, but he was ignored. That same night, Patterson

announced that she was checking out of the motel, taking the refund from her

pre-payment of the room, and heading home.

In preparation for leaving, Patterson returned to her room, and, shortly

thereafter, called the front desk asking for help; the clerk then heard at least

three gunshots and gasps from Patterson. Holley, who was also staying at the

motel and was acquainted with Appellant, heard the gunshots and observed

Appellant leave Patterson’s motel room with something silver in his hand;

sentence of life imprisonment without parole plus 20 years. Appellant timely filed a motion for new trial on April 20, 2015, which was amended in March 2016. The trial court denied the motion as amended in June 2017. Appellant timely filed a notice of appeal. This case was docketed to the August 2018 term of this Court, and thereafter submitted for a decision on the briefs.

2 Appellant then aimed the firearm at Holley and fired three times. Appellant

then shot both Youngblood and another co-worker, Hines, before fleeing the

scene. Appellant later contacted law enforcement to turn himself in and was

taken to the hospital as a precaution. Numerous witnesses identified Appellant

as the shooter. At trial, Appellant admitted that he was the shooter, but claimed

that he had no recollection of the events after having had two sips of an odd-

tasting beer.

1. Though not raised by Appellant as error, in accordance with this

Court’s standard practice in appeals of murder cases, we have reviewed the

record and find that the evidence, as stated above, was sufficient to enable a

rational trier of fact to find Appellant guilty beyond a reasonable doubt of the

crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979).

2. In July 2013, the defense moved the trial court for a psychiatric

evaluation to explore Appellant’s fitness to stand trial, as well as to assess his

mental condition at the time of the crime; this motion was served on the State.

The order granting the motion – which was drafted by the defense – was also

provided to the State, and the order dictated that the State was to receive a copy

3 of the evaluation. During the subsequent evaluation, Appellant reported that,

on the evening in question, he had been given a beer with an “odd” taste to it

and that he had an “incomplete memory” of subsequent events. The evaluating

psychologist opined in his report that Appellant was competent to stand trial,

that there was insufficient evidence to suggest that Appellant could not

appreciate right from wrong at the time of the shootings, that Appellant’s actions

were not the product of a delusional compulsion, and that there was no apparent

evidence of involuntary intoxication or misapprehension of fact. Despite the

trial court’s original order, the psychologist’s report was apparently filed under

seal and provided to defense counsel, but it was not immediately provided to the

State.

Months later, the defense produced a witness list that included medical

personnel who had treated Appellant on the night in question. The State –

apparently concerned with a possible insanity defense – moved the trial court to

compel Appellant to turn over the report and provide written notice of “any

mental defect or condition that would bear upon his competency to stand trial

or his lack of criminal responsibility for his actions.” Following an ex parte

hearing with the defense – during which the defense affirmed its intention to

4 pursue the theory of involuntary intoxication – the trial court granted the State’s

motion, concluding that, under Uniform Superior Court Rule 31.5, the defense

was required to give notice of its intent to pursue involuntary intoxication and

turn over the report. Following the trial court’s ruling, the defense retained an

expert witness, who testified at trial in support of Appellant’s theory of

involuntary intoxication.

On appeal, Appellant contends that it was error to require him to give

notice of his defense and turn over the psychologist’s report to the State.

(a) Appellant first contends that the trial court erred in concluding that,

under Rule 31.5, the defense was required to provide written, pre-trial notice of

its intent to pursue a theory of involuntary intoxication. We disagree.

Rule 31.5 requires written, pre-trial notice to the State where an accused

intends “to raise the issue that [he] was insane, mentally ill or mentally retarded

at the time of the act or acts charged against the accused.” Though involuntary

intoxication is not specifically referenced in the rule, that defense “is one

involving issues of mental competence, in effect, temporary insanity.” Crossley

v. State, 261 Ga. App. 250, 251 (582 SE2d 204) (2003). Indeed, the involuntary

intoxication statute, OCGA § 16-3-4 (a), tracks the language of the insanity

5 statute, providing that involuntary intoxication is only a defense where an

accused can demonstrate that he “did not have sufficient mental capacity to

distinguish between right and wrong in relation to such act.” Compare OCGA

§ 16-3-2 (“A person shall not be found guilty of a crime if, at the time of the act,

omission, or negligence constituting the crime, the person did not have mental

capacity to distinguish between right and wrong in relation to such act,

omission, or negligence.” (Emphasis supplied.)). Georgia courts have

understood for decades that the defense of involuntary intoxication is

coextensive with the defense of insanity, recognizing that “[t]he law of

intoxication contained in OCGA § 16-3-4 must be read in light of OCGA § 16-

3-2.” Foster v. State, 258 Ga. 736, 743-744 (374 SE2d 188) (1988). See also

Carter v. State, 248 Ga. App. 139 (2) (546 SE2d 5) (2001) (discussing the

relationship between involuntary intoxication and insanity); Rauschenberg v.

State, 161 Ga. App. 331, 331 (291 SE2d 58) (1982) (recognizing that, “Georgia

law presumes the sanity of a defendant” and that the defense of involuntary

intoxication requires an accused to “establish he did not have sufficient mental

6 capacity to distinguish between right and wrong in relation to such act”).2

Accordingly, though involuntary intoxication is not specifically referenced in

Rule 31.5, the trial court correctly concluded that pre-trial notice of that defense

is required since it is a subset of an insanity defense.

(b) Appellant further asserts that he was not required to give pre-trial

notice of his intent to pursue involuntary intoxication because he sought to

present the defense solely through lay witnesses. While Appellant is correct

that, under the version of Rule 31.5 in effect at the time of trial,3 there was no

pre-trial notice requirement where an insanity-type defense was to be pursued

exclusively through lay witnesses, see Abernathy v. State, 265 Ga. 754, 755

(462 SE2d 615) (1995), the trial court clearly concluded – and the record

supports – that Appellant’s defense depended on more than lay-witness

testimony. As his witness list indicated, Appellant intended to call emergency

medical technicians and an emergency-department physician who treated

Appellant on the night of his arrest. At the ex parte hearing on the State’s

2 Though Rauschenberg was decided under Ga. Code. Ann. § 26-704, that provision is a predecessor of OCGA § 16-3-4 and is materially identical to it. 3 Rule 31.5 was amended effective July 2017.

7 motion to compel, the defense acknowledged that it would seek to elicit

testimony from the those medical personnel regarding their observations and

treatments of the defendant on the night in question. That, alone, could

constitute lay-witness testimony. See United States v. Henderson, 409 F3d

1293, 1300 (3) (11th Cir. 2005) (recognizing that “[a] treating physician is not

considered an expert witness if he or she testifies about observations based on

personal knowledge, including the treatment of the party.” (Quotation marks and

citations omitted.)).4 However, the defense also sought to explore other avenues

of testimony, namely the results and implications of Appellant’s drug and

alcohol tests on the night in question, both of which were negative.

The transcript from the hearing reflects that trial counsel explained that he

planned to ask “the doctor about the drug test, what it did test for and what it did

not test for to show there are certainly other types of drugs that are out there that

were not tested for. Certainly, there could have been one that he was under the

influence of.” Thus, the anticipated purpose of the physician’s testimony was

4 This case was tried under Georgia’s new Evidence Code, and this Court may look for guidance from the Eleventh Circuit in applying these new rules. See Davis v. State, 299 Ga. 180 (2) (787 SE2d 221) (2016).

8 not in simply reporting that the drug and alcohol screen was negative – indeed,

that would have been of no benefit to the defense – but in exploring what testing

the physician ordered, what substances he did not test for, and whether

Appellant could have been on those substances. Such testimony and inferences

by the physician require scientific or specialized knowledge, see OCGA § 24-7-

701 (a) (3), and veer into the realm of expert-witness testimony, see Henderson,

409 F3d at 1300 (noting that “the ability to answer hypothetical questions is the

essential difference between expert and lay witnesses” (Quotation marks and

punctuation omitted.)). As such, Appellant was not, as he suggested, supporting

his defense solely with lay-witness testimony. Accordingly, the trial court did

not err when it decided that, under Rule 31.5, Appellant was required to provide

written, pre-trial notice of his intention to pursue the defense of involuntary

intoxication.

(c) Appellant also contends, relying on Neuman v. State, 297 Ga. 501 (773

SE2d 716) (2015), that the trial court erroneously required him to turn over the

psychologist’s report to the State. There is no error.

In Neuman, the trial court required the defendant to turn over records from

two psychologists, who had been retained by trial counsel for the purpose of

9 exploring an insanity defense, even though those experts would have neither

testified at trial nor contributed to the opinion of the expert who would

ultimately testify. 297 Ga. at 505-506. This Court reversed, concluding that

“the attorney-client privilege applies to confidential communications, related to

the matters on which legal advice is being sought, between the attorneys, their

agents, or their client, and an expert engaged by the attorney to aid in the

client’s representation” and, further, that the privilege remains intact so long as

“the expert will neither serve as a witness at trial nor provide any basis for the

formulation of other experts’ trial testimony.” (Emphasis supplied.) Id. at 504.

Here, in contrast to Neuman, the psychologist who evaluated Appellant

was neither an expert retained by trial counsel nor acting to aid trial counsel in

his representation of Appellant. Instead, the psychologist was working at the

direction of the trial court; indeed, the report clearly reflects that the evaluation

was being conducted to develop recommendations for the court, and the

resulting report was addressed and transmitted to the same, with a copy provided

to defense counsel.5 Thus, Neuman does not control here, and this argument is

5 There is no argument that the trial court failed to properly keep the evaluation under seal until such time as Appellant announced his intention to pursue a defense

10 without merit.

3. Early during trial, Appellant moved the trial court to remove a sleeping

juror. The trial court granted the motion after the parties, joined by the trial

court, agreed that the juror had been consistently napping; the juror was replaced

with the sole alternate juror. Later, Appellant moved the trial court to excuse

Juror H on the basis that he had been sleeping and, in the absence of additional

alternative jurors, for a mistrial. After a brief hearing, which included an on-

the-record discussion with the juror, the trial court denied the defense’s request.

Appellant argues on appeal, as he did below, that the juror should have been

removed and a mistrial declared.

OCGA § 15-12-172 vests the trial court with broad discretion to replace

a juror with an alternate at any point during the proceedings, see Smith v. State,

298 Ga. 357 (3) (782 SE2d 26) (2016), and such a decision is reviewed by this

Court for abuse of discretion, see State v. Clements, 288 Ga. 640, 645 n.5 (715

SE2d 59) (2011). Here, trial counsel moved to excuse Juror H and for a mistrial

after complaining that the juror had been consistently “asleep” in the two hours

of involuntary intoxication, see Uniform Superior Court Rule 31.5.

11 after reconvening from lunch. The transcript reflects, however, that the accounts

of Juror H’s attentiveness were neither unanimous nor conclusive. While the

trial court had observed Juror H “nodding off” – and had coughed to rouse the

juror – one of the prosecutors indicated to the court that Juror H had been

awake, attentive, and taking notes as the State presented its witnesses. Likewise,

the transcript reflects that the trial court learned from the bailiff and other

deputies that Juror H’s eyes were open and that he was taking notes. When the

trial court interviewed Juror H on the record, the juror acknowledged that

staying awake and paying attention was “just hard,” but also indicated that he

had been taking notes; the trial court counseled the juror to stay awake and pay

attention.

Despite trial counsel’s protestations, it is not at all clear how much, if any,

Juror H was actually sleeping during the two-hour window. In light of the

conflicting accounts of Juror H’s attentiveness, the trial court did not abuse its

discretion in merely counseling the juror to stay focused and proceed with trial.

See Smith v. State, 284 Ga. 17 (4) (663 SE2d 142) (2008) (no abuse of

discretion in retaining a juror where there was conflicting evidence concerning

whether the juror was sleeping, the alleged dozing was limited, and the court

12 counseled the juror in question). Further, because the trial court did not abuse

its discretion in denying the motion to excuse Juror H, Appellant’s argument

that the juror’s excusal would have necessitated a mistrial is moot.

4. At trial, the State was permitted to adduce handwritten rap lyrics that

had been drafted on the reverse side of an inmate-request form from the Sumter

County Sheriff’s Office; the writing had been found among Appellant’s

possessions in the motel room.6 Appellant contends that the lyrics themselves

were inadmissible, as irrelevant and improper character evidence.7 Appellant

also contends that his character was further placed at issue when the jury heard

testimony that the lyrics were written on the back of an inmate-request form and,

as a consequence, that the trial court should have granted a mistrial.

6 The lyrics in question are as follows:

All I know is keep my trigga finga clutching on my b*tch Berreta backed up by Smith ‘n’ Wesson / no shellings / no witness / no telling

I look back at the time/ when mama was on her knee praying for her youngest child / asking God to guide / [indecipherable] but I was young buckwild [scribbles and crossed-out writing]

7 Appellant makes a passing reference that the trial court denied a motion for mistrial related to the admission of the rap lyrics. Appellant does not provide a record cite to support this claim, and our review of the transcript reveals no such motion.

13 Even if we presume that the rap lyrics were inadmissible, any error was

harmless. As Appellant acknowledges in his brief, aside from being located

along with his possessions, there was no testimony as to the origin of the lyrics,

who wrote them, or how they were connected to Appellant. In light of the

tenuous connection between the lyrics and Appellant, as well as the

overwhelming evidence of Appellant’s guilt, we conclude that it is “highly

probable that the error did not contribute to the verdict.” (Quotation marks and

citations omitted.) Rivera v. State, 295 Ga. 380 (761 SE2d 30) (2014).

As to the jury’s hearing that the lyrics were drafted on the back of an

inmate-request form, this argument also does not require reversal. The

testimony in question occurred as follows:

Q. What is next? A. And now we have Exhibit 33, and that’s going to be on the back of that Sumter County – Q. Okay. And that was the lyrics that you found. A. That is. Billy actually first found it.

As the above-quoted exchange reflects – and the trial court mentioned during

a subsequent hearing outside the presence of the jury – the prosecutor

successfully cut off the witness before he completed his answer. Thus, the jury

did not hear the testimony about which Appellant complains. Moreover, even

14 if the testimony had been heard by the jury, it is not at all clear what inference

would be drawn from that information. At most, it would be a passing reference

suggesting that the defendant had previously been incarcerated. Such a brief

reference, however, would neither place the defendant’s character at issue nor

give rise to reversible error.8 See Jordan v. State, 303 Ga. 709, 714 (814 SE2d

682) (2018) (noting that a passing reference to defendant’s prior incarceration

does not place defendant’s character in evidence). For this same reason, the trial

court did not abuse its discretion when it denied Appellant’s motion for a

mistrial. See id. Accordingly, this argument is without merit.

Judgment affirmed. All the Justices concur.

8 It is unclear from the record whether the rap-lyric exhibit was submitted to the jury showing that the lyrics were drafted on the backside of an inmate-request form, and, if so, whether Appellant objected to the exhibit on that basis. Nevertheless, given how little attention was placed on this form and the overwhelming evidence of guilt, any possible error is harmless.