O'connell v. State ( 2015 )

297 Ga. 410FINAL COPY
S15A0344. O’CONNELL v. THE STATE.
HUNSTEIN, Justice.
Appellant Brenda O’Connell and her adoptive sister, Catherine O’Connell,
were jointly tried for malice murder, felony murder, and aggravated assault
stemming from the strangulation death of their adoptive mother, Muriel
O’Connell. A jury found the two sisters guilty on all counts, and we have
already affirmed Catherine’s convictions. See O’Connell v. State, 294 Ga. 379(754 SE2d 29) (2014). For the reasons that follow, we affirm appellant’s
convictions as well.1
1. Viewed in the light most favorable to the jury’s verdict, the evidence
presented at trial showed the following.
1
The crimes occurred on August 6, 2006. On October 18, 2006, a Gwinnett
County grand jury indicted appellant and her sister for malice murder, felony murder,
and aggravated assault. On October 24, 2008, a jury found appellant guilty on all
counts. That same day, the trial court sentenced appellant to life in prison on the
malice murder verdict. The felony murder verdict was vacated by operation of law,
and the trial court merged the aggravated assault verdict with the verdict on malice
murder. Appellant filed a timely motion for new trial, which she amended on June 7,
2013. The trial court denied the motion for new trial, as amended, on July 21, 2014.
Appellant then filed a timely notice of appeal. The appeal was docketed to the
January 2015 term of this Court and submitted for decision on the briefs.
The victim adopted [Catherine] from a Guatemalan orphanage
when [Catherine] was eleven years old. A few years later, the
victim adopted a second daughter, [appellant], from the same
orphanage. [Appellant] and [Catherine] quickly formed a strong
bond with one another, but their respective relationships with the
victim began to deteriorate. Over time, the two girls developed
substantial behavioral issues. After a number of confrontations
with both [appellant] and [Catherine], the victim began to fear for
her life.
On the night of the murder, the victim’s daughters went to a
neighbor’s house and knocked on the door. The neighbor testified
that [appellant] had a cloth tied around her neck and was gasping
for air, but noted that these actions appeared to be staged. After
[Catherine] contended her mother tried to choke [appellant], the
neighbor went to the victim’s house and found the victim dead on
the bathroom floor with a butcher knife in her hand. When police
arrived, both [Catherine] and [appellant] gave statements alleging
the victim attacked [appellant] with a knife. According to the girls,
Catherine came to [appellant’s] rescue by grabbing the victim
around the neck and causing her to faint.
Although [appellant] initially denied staging the crime scene,
she eventually admitted to police that she placed the knife in the
victim’s hand after she was dead. In addition, a medical examiner
evaluated both girls and was unable to find injuries to substantiate
their claims of self-defense. [Appellant] did not have injuries
consistent with strangulation and [Catherine] had only superficial
scrapes that were possibly self-inflicted. An autopsy of the victim
revealed she sustained multiple head injuries while she was still
alive, but the medical examiner determined the cause of death to be
strangulation.
O’Connell, 294 Ga. at 379-380.
Viewed in the light most favorable to the verdict, the evidence presented
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at trial and summarized above was sufficient to authorize a rational jury to find
appellant guilty beyond a reasonable doubt of the crimes of which she was
convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979).
2. Appellant’s first two enumerations of error — that the trial court erred
in denying her Batson2 challenge to the State’s strike of prospective juror
Shealise Weaver and that the trial court erred in excluding from evidence details
of her traumatic childhood in Guatemala — are identical to enumerations of
error raised by Catherine in her appeal. For the same reasons that we concluded
that Catherine’s enumerations of error were without merit, we conclude that
these two enumerations of appellant are without merit. See O’Connell, 294 Ga.
at 380-383.
3. Appellant argues that the trial court erred in failing to give her
requested charge on felony involuntary manslaughter. See OCGA § 16-5-3 (a).
We disagree.
OCGA § 16-5-3 (a) provides that “[a] person commits the offense of
2
Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).
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involuntary manslaughter in the commission of an unlawful act when he causes
the death of another human being without any intention to do so by the
commission of an unlawful act other than a felony.” Appellant requested that
the trial court charge the jury on unlawful act involuntary manslaughter based
on the underlying misdemeanor of battery. See OCGA § 16-5-23.1 (a) (“A
person commits the offense of battery when he or she intentionally causes
substantial physical harm or visible bodily harm to another.”). The trial court
declined to give the charge, and appellant now contends that Catherine’s
testimony that she strangled her mother in an attempt to pull her off appellant,
without any intent to kill her, was evidence of the misdemeanors of reckless
conduct and simple battery, requiring the trial court to give the requested charge
on unlawful act involuntary manslaughter.3 See Rogers v. State, 289 Ga. 675,
677 (2) (715 SE2d 68) (2011) (saying that a “‘written request to charge a lesser
included offense must always be given if there is any evidence that the
defendant is guilty of the lesser included offense’” (citation omitted)).
3
Appellant did not file a written request to charge on involuntary manslaughter
based on the misdemeanor of reckless conduct, see OCGA § 16-5-60, did not orally
request such a charge during the charge conference, and did not object to the trial
court’s failure to give the charge. We will assume, however, for purposes of this
appeal that she properly requested the charge.
4
We conclude, however, that even if the trial court erred in failing to charge
on felony involuntary manslaughter, with battery and reckless conduct as the
underlying misdemeanors, the error was harmless, because there was
overwhelming evidence that was inconsistent with the co-defendants’ version
of events that they caused their mother’s death unintentionally. This included
evidence that the co-defendants did not have any injuries consistent with their
version about the victim’s death; appellant initially denied staging the crime
scene, but later admitted that she placed the knife in the victim’s hand after she
died; the victim had multiple bruises on her head that were inflicted while she
was alive; the victim had abrasions on her arms and hands that were consistent
with defensive injuries; the victim did not have any injuries consistent with a
struggle over a knife; the victim died from a sustained strangulation of at least
two minutes; and the victim would have lost consciousness within 15 to 30
seconds of the beginning of the strangulation. Given the overwhelming
evidence that is inconsistent with appellant’s version of events and supports the
State’s case that the co-defendants acted with malice in killing their mother, any
error in failing to charge on involuntary manslaughter was harmless. See
Rogers, 289 Ga. at 677 (holding that the trial court erred in failing to charge on
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involuntary manslaughter but that the error was harmless because “there was
overwhelming evidence inconsistent with [the appellant's] version of events, but
supportive of the jury’s finding him guilty of malice murder”).4
Judgment affirmed. All the Justices concur.
Decided June 29, 2015.
Murder. Gwinnett Superior Court. Before Judge T. Davis.
Edwin J. Wilson, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Dan W.
Mayfield, Assistant District Attorneys; Samuel S. Olens, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for
appellee.
4
Moreover, for these same reasons, even if appellant did not preserve the issue
of the trial court's failure to charge on involuntary manslaughter based on the
misdemeanor of reckless conduct, see footnote 3, supra, under the plain error
doctrine, we conclude that such an instruction would not likely have affected the
outcome of the proceedings. See Allen v. State, 290 Ga. 743 (3) (723 SE2d 684)
(2012); State v. Kelly, 290 Ga. 29 (2) (718 SE2d 232) (2011).
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