Walden v. State

717 S.E.2d 159, 289 Ga. 845, 2011 Fulton County D. Rep. 3192, 2011 Ga. LEXIS 826

Opinions

CARLEY, Presiding Justice.

After a jury trial, Appellant Amy Elizabeth Walden was found guilty of the malice and felony murder of her husband Johnny Clint Walden, possession of a firearm during the commission of a crime, concealing the death of another, and two counts of cruelty to children in the second degree. The felony murder verdict was vacated by operation of law, and the trial court entered judgments of conviction on the remaining guilty verdicts. Appellant was sentenced to life imprisonment for the malice murder, consecutive terms of ten years for concealing the death of another and five years for the weapons charge, and ten-year terms for each count of cruelty to children to run concurrent with each other but consecutive to the other sentences. A motion for new trial was denied, and Appellant appeals.

Footnotes

•

*

1. Construed most strongly in support of the verdicts, the evidence shows that the victim had shown Appellant how to shoot a gun resembling the one which caused his death. Appellant lied to the victim about the extremely large debts which she had incurred. He threatened to divorce her, and she had once told a family member that she would kill him before going through another divorce. The victim was killed in his house by a single gunshot to his head. The State’s pathologist testified that the autopsy showed the absence of any contact wound and that he determined that the manner of death was homicide.

After the victim’s death, Appellant, who was the only adult in the house, moved and covered up the victim’s body, kept it in the house, and stayed there with her two young children for nearly three days, except for a few hours when they stayed with the victim’s father while Appellant cleaned house. During those three days, Appellant repeatedly lied to the victim’s relatives regarding his whereabouts and refused to let them enter the house. Eventually, the police were called, the stench from the decomposing body was overwhelming, and Appellant, appearing unconcerned, admitted that the victim was dead. Although Appellant told police and testified at trial that the victim had committed suicide, she made inconsistent and incriminating statements to one cellmate that the victim was accidentally shot during a fight over finances and to another cellmate that she purposely shot him after having sex with him.

Appellant contends that the evidence was insufficient to convict her of malice or felony murder. She particularly relies upon evidence that the victim’s hands tested positive for gunshot residue and upon the pathologist’s testimony that some suicides are not the result of contact wounds. However, although the pathologist could not conclusively state that the fatal wound was caused by someone other than the victim himself, the pathologist testified that it is very rare for a suicide by gunshot not to result in a contact wound, especially in men. Evans v. State, 271 Ga. 614, 615 (1) (523 SE2d 850) (1999). See also Garey v. State, 273 Ga. 133, 134-135 (539 SE2d 123) (2000). Furthermore, a gunshot residue analyst with the state crime lab testified that the presence of such residue can be caused by the hand being near the barrel of a gun when it is fired, instead of actually firing the gun. Montgomery v. State, 260 Ga. 43, 44-45 (389 SE2d 209) (1990). See also Jones v. State, 275 Ga. 156, 158 (563 SE2d 835) (2002).

Whether suicide is a reasonable hypothesis was a question for the jury and where circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of the homicide at the hands of the accused, this Court will not disturb the guilty verdict unless it is unsupportable as a matter of law. [Cit.]

Evans v. State, supra. The circumstantial evidence in this case was substantial, including not only the nature of the gunshot wound, but also Appellant’s motive to harm the victim, and her prolonged coverup and conflicting accounts of his death. See Hall v. State, 287 Ga. 755, 756 (1) (699 SE2d 321) (2010); Hannah v. State, 278 Ga. 195, 196 (599 SE2d 177) (2004); Wright v. State, 274 Ga. 730, 731 (559 SE2d 437) (2002).

“The jury was free to reject [Appellant’s] version of events, which it obviously did. [Cit.]” Garey v. State, supra at 137 (3). “The evidence, although circumstantial, was sufficient for a rational trier of fact to reject the defense theory that [the victim’s] death was a suicide and to find [Appellant] guilty of [malice] murder beyond a reasonable doubt. [Cit.]” Wright v. State, supra at 731 (1). Because the trial court correctly entered a judgment of conviction on the malice murder verdict and not on the felony murder count, we need not consider the sufficiency of the evidence as to that alternative charge. Frezghi v. State, 273 Ga. 871-872 (1) (548 SE2d 296) (2001); Goforth v. State, 271 Ga. 700, 701 (2) (523 SE2d 868) (1999).

Appellant also contends that the evidence was insufficient to convict her of cruelty to children in the second degree. Under OCGA § 16-5-70 (c), £‘[a]ny person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” The indictment alleged that Appellant with criminal negligence caused the children, who were under the age of 18, excessive mental pain by allowing the corpse of the victim, who was one child’s father and the other’s stepfather, to remain in the children’s residence in their presence for an excessive period of time. Appellant argues that there was no testimony that the children witnessed the victim’s death, knew of the death, saw the body, or were even bothered by the odor. Appellant also points to testimony indicating that the older child did not know what was going on. However, several witnesses testified that the stench was pervasive and was strong enough to cause experienced officers to vomit. Although we have held that evidence of an unsanitary condition is not enough by itself to prove the malice element of cruelty to children in the first degree, cruelty to children certainly may be committed by keeping a child in an unsanitary condition if the basic elements of the offense are shown. Brewton v. State, 266 Ga. 160 (465 SE2d 668) (1996).

“The determination of what is cruel or excessive physical or mental pain is to be made by the jury. ‘Cruel’ and ‘excessive’ are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts ‘cruel’ or ‘excessive’ pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. . . . We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.” [Cit.] Moreover, “a determination of what constitutes excessive mental pain need not depend solely on the victim’s testimony.” [Cit.]

Bunn v. State, 307 Ga. App. 381, 382-383 (1) (a) (705 SE2d 180) (2010). See also Folson v. State, 278 Ga. 690, 694 (5) (606 SE2d 262) (2004). Likewise, “[e]xpert testimony is not necessary when the jurors may make the determination on their own. [Cits.]” Sims v. State, 234 Ga. App. 678, 680-681 (1) (a) (507 SE2d 845) (1998). In this case, the jury was authorized to conclude that the presence of an unembalmed corpse in the minor children’s home for nearly three days was a criminally negligent act constituting an unsanitary condition and to infer from the reaction of the police officers that the resulting stench caused the children excessive mental pain. See Alexander v. State, 274 Ga. 787, 790 (1) (c) (561 SE2d 64) (2002). Neither an incomplete understanding by the children nor an absence of physical symptoms, such as vomiting, would preclude the internal experience of excessive mental pain. See Sims v. State, supra at 680 (1) (a).

Accordingly, we hold that the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Appellant was guilty of all crimes for which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. During voir dire, Appellant made an oral motion for a change in venue based on the small size of the community and on the facts that nine of the 47 prospective jurors were excused for cause because they had already formed an opinion and that another 24 had heard about the case. Appellant enumerates the trial court’s denial of this motion as error.

“ ‘The trial court has the discretion to grant a change of venue and its discretion will not be disturbed absent an abuse of that discretion. In a motion for a change of venue [when the death penalty is not sought], the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.. ..’ (Cits.)” [Cits.] As for the first showing, “(e)ven in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare.” [Cit.] The record must establish that the publicity contained information that was unduly extensive, factually incorrect, inflammatory or reflective of an atmosphere of hostility. [Cits.] [Appellant] has made no such showing.

Gear v. State, 288 Ga. 500, 501-502 (2) (705 SE2d 632) (2011). Indeed, the three newspaper articles on which Appellant relies are not in the record. Moreover, she indicates that they were all published more than a year before the trial. See Tolver v. State, 269 Ga. 530, 533 (4) (500 SE2d 563) (1998). Appellant’s assertion regarding the small size of the community, “standing alone, was not a sufficient basis for a change of venue.” Williams v. State, 272 Ga. 335, 336 (3) (528 SE2d 518) (2000).

As to actual prejudice, “the question is not the number of jurors who had heard about the case; rather, the question is whether those jurors who had heard about the case could lay aside their opinions and render a verdict based on the evidence. (Cits.)” [Cit.]

Gear v. State, supra at 502 (2). This “ ‘second test involves review of the voir dire examination of potential jurors.’ ” Hughes v. State, 257 Ga. 200, 203 (2) (357 SE2d 80) (1987). In this case, however, although the court reporter transcribed the motion for change of venue and the trial court’s ruling, the actual questions and answers of the prospective jurors “were not reported, and defense counsel made no motion at that time to include them in the record or to have them reconstructed for the record.” State v. Graham, 246 Ga. 341, 342 (271 SE2d 627) (1980). Because the death penalty was not sought, it was required only that any objection or motion during the course of voir dire and the trial court’s ruling thereon be reported. OCGA § 5-6-41 (d); State v. Graham, supra at 343. See also OCGA §§ 17-8-5 (a), 5-6-41 (a). If Appellant desired a more complete record of voir dire, she “should have made a motion at the time ... to have the questions and answers made a part of the record, since the party asserting error must show it by the record. [Cit.]” State v. Graham, supra. We have “emphasize[d] that if defense counsel want voir dire to be taken down, they must make a specific request to that effect.” Bryant v. State, 270 Ga. 266, 271 (4), fn. 18 (507 SE2d 451) (1998). Since voir dire was not transcribed, we must assume that the jurors who were not excused for cause did not have such fixed opinions that they could not be impartial judges of Appellant’s guilt. See Cammon v. State, 269 Ga. 470, 473 (4) (b) (500 SE2d 329) (1998). “We must therefore conclude that the trial court did not abuse its discretion in denying [the] motion for a change of venue.” Hughes v. State, supra. Moreover, the mere fact that 21% of prospective jurors were excused for cause because they already had an opinion that they were unable to lay aside “is not indicative of such prejudice as would mandate a change in venue .... [Cit.]” Gear v. State, supra. See also Chancey v. State, 256 Ga. 415, 431 (5) (C) (349 SE2d 717) (1986).

Judgments affirmed.

All the Justices concur, except Hunstein, C. J., and Benham, J., who concur in part and dissent in part.

The crimes occurred on August 22, 2004, and the grand jury returned an indictment on October 20,2004. The jury found Appellant guilty on April 14, 2006, and the trial court entered the judgments of conviction and sentences on May 16, 2006. The motion for new trial was filed on June 12, 2006 and denied on November 17, 2010. Appellant filed the notice of appeal on December 10,2010. The case was docketed in this Court for the April 2011 term and submitted for decision on the briefs.