McNear v. State

755 S.E.2d 844, 326 Ga. App. 32
CourtCourt of Appeals of Georgia
DecidedMarch 6, 2014
DocketA13A2071
StatusPublished
Cited by3 cases

This text of 755 S.E.2d 844 (McNear v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNear v. State, 755 S.E.2d 844, 326 Ga. App. 32 (Ga. Ct. App. 2014).

Opinion

Boggs, Judge.

Alphonso McNear was indicted for malice murder, but a jury found him guilty of the lesser included offense of voluntary manslaughter. On appeal, McNear contends that insufficient evidence supports his conviction, that the trial court committed various errors, and that he received ineffective assistance of counsel. For the reasons explained below, we affirm.

1. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard [33]*33gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on October 30, 2009, around 4:00 a.m., a police officer was called to McNear’s home, where EMS personnel expressed concerns “about a suspicious dead body,” identified as that of 53-year-old Sandra Stell. McNear, who was present when the police officer arrived, told the officer that around 8:00 p.m., he began drinking alcohol with Stell, his live-in girlfriend of eight years. He explained that he fell asleep and awoke a few hours later to discover Stell “lying at the foot of the bed.” He called for the police when he could not awaken her.

When the officer went into the bedroom, he saw the victim lying at the foot of the bed face up with her head propped up on a couch cushion and her eyes closed. He “noticed that... her shirt was pulled up, her pants were pulled halfway down. There was bruising around her neck, some blood just below her nose that was going down toward her mouth.” A medical examiner with the GBI testified that Stell died from strangulation. In the last of three video-recorded interviews given to police on the same day, McNear admitted that he choked Stell after she kicked him in “the privates” during a physical altercation.

The State also presented evidence showing that four years earlier, McNear stomped on Stell’s right foot causing an old injury to begin bleeding again. A certified copy of McNear’s guilty plea to battery in connection with this incident was admitted into evidence.

McNear asserts that “the State’s circumstantial evidence did not exclude the hypothesis that [he] was acting in self-defense when he accidentally caused the death of Sandra Stell.” See former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). “The difficulty with this argument is that the evidence is not entirely circumstantial but includes the very direct evidence of appellant’s confession. . ..” Cooper v. State, 256 Ga. 234, 236 (3) (347 SE2d 553) (1986). See also Luke v. State, 324 Ga. App. 531 [34]*34(2) (751 SE2d 180) (2013). Because McNear’s conviction does not rest entirely upon circumstantial evidence, we find no merit in this assertion of error.

2. McNear claims that the trial court erred when it concluded that his statements to police were voluntary and admissible. McNear asserts that his statements were not voluntary because they were made over a six-hour period of time while he was “exhausted and still inebriated” from an evening of heavy drinking. In support of this claim, McNear points to an alleged erroneous finding of fact in the trial court’s written order on the voluntariness of his confession.1

The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts.

(Citation and punctuation omitted.) Thomas v. State, 292 Ga. 429, 433 (3) (738 SE2d 571) (2013). And, “[t]he mere fact that a defendant was intoxicated at the time of the statement does not render it inadmissible. [Cit.]” Frazier v. State, 311 Ga. App. 293, 296 (1) (715 SE2d 712) (2011). “If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.” Screws v. State, 245 Ga. App. 664, 665 (1) (538 SE2d 547) (2000).

The record in this case shows that after conducting an evidentiary hearing and reviewing the three video-recorded interviews, the trial court issued a seven-page order in which it concluded that McNear “was advised of each of his Miranda rights, he understood [35]*35them, he voluntarily waived then, and he thereafter gave his statements freely and voluntarily without any hope of benefit or fear of injury.” With regard to McNear’s intoxication, the trial court made the following finding:

While Defendant contends that he was intoxicated at the beginning of his interview with the officers, Defendant’s intoxication did not prevent him from a making a rational, voluntary statement. Defendant was lucid, answered questions forthrightly, and recognized the nature of his detainment. Officers adequately explained to Defendant his rights several times throughout the interview, and Defendant clearly understood what the officers were telling him. Consequently, considering the totality of the circumstances, Defendant’s statements were voluntary in spite of his possible intoxication.

The trial court noted that

law enforcement officers questioned Defendant during three separate interview sessions over the span of six and a half hours. . . . There was a break in time in the video-recorded interview from 7:35 AM and 11:00 AM____The officers spent approximately two hours and fifty minutes actually questioning Defendant.

Based upon our review of the waiver form signed by McNear and the video-recordings of his interviews with the police officers, “we find that the trial court was authorized to conclude that, despite [McNear]’s possible intoxication [and lack of sleep], he gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights.” (Citations and punctuation omitted.) Adams v. State, 276 Ga. App. 319, 321-322 (3) (623 SE2d 525) (2005). Accord Bryant v. State, 286 Ga. App. 493, 497 (2) (649 SE2d 597) (2007).

3. McNear contends that the trial court erred “when it admitted duplicate photographs of the decedent’s injuries, because the photographs were more prejudicial than probative.” We disagree.

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Bluebook (online)
755 S.E.2d 844, 326 Ga. App. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnear-v-state-gactapp-2014.