HUNSTEIN, Justice.
On retrial following a reversal of his original convictions, see
Viewed in a light most favorable to the jury's verdict, the evidence at trial established as follows. In January 2010, Appellant killed his wife. Thereafter, he wrapped her body in a packing blanket and placed it in the bed of his pickup truck; he then used that truck to transport his children to Virginia, the home state of his brother and sister-in-law. During the trip, Appellant admitted to his children and later his sister-in-law that he had killed his wife. According to Appellant's sister-in-law, Appellant admitted that "he had a cloth with ether on it, [which] he put [] over [the victim's] mouth, and the cloth went too far down her throat and choked [her]." The sister-in-law further testified that Appellant stated that he used the ether "so [the victim] could go to sleep" because he just "wanted to talk to her." After dropping off his children in Virginia, Appellant returned to Georgia and proceeded to the home of Jon Kevin Crane. Once there, Appellant stated that he needed an attorney, admitted that his wife was dead in the bed of his truck, and, eventually, surrendered to authorities. The victim's body, clothed only in a t-shirt and underwear, was found frozen in the bed of Appellant's truck.
An autopsy revealed that the victim was legally intoxicated, that she had a higher-than-therapeutic level of Benadryl in her system at the time of death, and that ether, an anesthetic, was also found in her system. According to the medical examiner, the victim's chin and neck area evidenced signs of injury, and the victim's face showed innumerable petechial hemorrhages, indicating that the blood flow from the head was interrupted. There was no evidence that she had choked on a foreign object, such as a rag. Further, though the victim bore obvious signs of strangulation, the medical examiner testified that there were no signs of a struggle — i.e., none of the victim's nails were broken, she had no scratches on her throat, and she had no skin under her nails. Based on the foregoing, the medical examiner opined that the victim was possibly incapacitated prior to her death.
The medical examiner concluded that the victim was strangled to death using a "carotid sleeper hold." While the precise medical basis for the victim's death could have been caused by either jugular vein occlusion or the over stimulation of baroreceptors in the carotid artery — or some combination thereof — the medical examiner testified that the exact mechanism of the victim's death was immaterial to his conclusion that she was strangled. He also agreed that death is an expected consequence of strangulation.
1. Appellant contends that the evidence presented at trial was insufficient to support his conviction. Relying on testimony from the medical examiner that a sleeper hold, generally speaking, is unlikely to cause death, Appellant argues that the State failed to exclude all reasonable hypotheses except that of his guilt, namely, that he used the sleeper hold only to subdue the victim and did not intend to kill her. This argument is without merit.
As an initial matter, appellate court decisions in this State suggest that the prosecution is only required to exclude all reasonable hypotheses except that of guilt where its case is based exclusively on circumstantial
While the jury heard testimony from the medical examiner that a sleeper hold does not usually result in death, the medical examiner was unequivocal that the use of a sleeper hold on an individual may — and in this case did — result in death. The mere fact that the jury heard testimony that a sleeper hold does not usually result in death did not prevent the jury from concluding that Appellant utilized this maneuver with intent to effectuate his wife's death. Moreover, the jury heard evidence that the victim: was only partially clothed; showed no signs of having defended herself; and was affected by substances that could have rendered her incapacitated prior to her death. The jury also heard testimony that Appellant utilized a sleeper hold long enough to kill the victim and leave innumerable hemorrhages on her face.
Accordingly, the evidence was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of malice murder. See
2. During the State's case-in-chief, Crane testified on direct examination concerning various portions of his extensive post-incident conversation with Appellant. Namely, Crane testified that Appellant unexpectedly arrived at his house in the early morning hours of January 5, 2010, and claimed to need an attorney because he had his dead wife in the bed of his truck. During cross-examination, however, the trial court prohibited the defense from eliciting testimony from Crane that, during this lengthy conversation, Appellant stated that his wife had been unfaithful and "that he didn't mean for [her death] to happen, that he loved her so much and [her death] was not what he wanted." Appellant argues on appeal, as he did below, that this testimony was admissible under the rule of completeness. We agree.
"When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence." OCGA § 24-8-822. This "rule of completeness" is a "universal rule, [applicable] in both civil and criminal cases, that, if part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted."
Id. at 569, 37 S.E.2d 799. However, OCGA § 24-8-822 "does not make admissible parts of a statement that are irrelevant to the case and to the parts of the statement introduced into evidence by the opposing party."
The trial court concluded that the excluded portion of Crane's conversation with Appellant "was not necessary to explain" Crane's testimony on direct examination. This conclusion is problematic for two reasons. First, the trial court's ruling was based largely on the narrow testimony elicited by the State on direct examination, rather than the substance of Crane's entire conversation with Appellant.
The defense's proffer of Crane's expected testimony demonstrates that the remainder of the conversation between the two men was, in fact, relevant to both Crane's direct testimony and the charges for which Appellant was on trial. Specifically, it explained both the impetus for Appellant's actions towards his wife as well as his intent at the time of the incident. See OCGA § 24-4-401 ("[T]he term `relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Indeed, Appellant's intent with respect to the use of the ether and sleeper hold — whether he intended to kill his wife or merely subdue her — was the central, and perhaps only disputed issue at trial, and evidence on that point was sparse. Further, the excluded portion of Crane's testimony supported Appellant's defense that the victim's death was unintentional. In light of the significant question of intent here, the exclusion of this testimony was not harmless though it represented only a small portion of Crane's testimony. Accordingly, the trial court abused its discretion when it excluded Crane's testimony, and this ruling constitutes reversible error.
3. Though we have reversed Appellant's murder conviction, there are a number of remaining enumerations of error that are likely to occur on retrial; therefore, we will address them.
(a) Appellant contends that the trial court erred by refusing to instruct the jury on simple battery, see OCGA § 16-5-23 (a), and reckless conduct, see OCGA § 16-5-60 (b), as lesser-included offenses of malice murder. We agree.
"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 and punctuation omitted).
OCGA § 16-5-60 (b). Here, the medical examiner testified that the purpose of a sleeper hold is to subdue an individual, yet the risk of death associated with it is significant enough that many police jurisdictions around the nation have prohibited such a maneuver. The jury also heard evidence that, in addition to her death, the victim was left with bruises and hemorrhages on her neck and face. We find this evidence to be sufficient to warrant instructions on both simple battery and reckless conduct as lesser-included offenses of malice murder.
(b) Appellant also contends that the trial court erred in failing to instruct the jury on simple assault, see OCGA § 16-5-20, and reckless conduct as lesser-included offenses of felony murder. For the reasons discussed above, we agree that the jury should have been instructed on reckless conduct as a lesser-included offense of felony murder. See
Simple assault is accomplished when an individual "attempts to commit a violent injury to the person of another" or "commits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a) (1) and (2). The evidence at trial showed that Appellant utilized the sleeper hold to either subdue or kill his wife; either way, there was evidence authorizing the jury to consider whether Appellant "attempted to commit a violent injury" on his wife or placed her "in reasonable apprehension of immediately receiving a violent injury." Accordingly, Appellant was entitled to an instruction on OCGA § 16-5-20 (a) (1) and (2).
(c) Appellant also contends that the trial court erred when it refused to instruct the jury on involuntary manslaughter on the grounds that he was previously acquitted of that offense in his first trial. We agree.
"No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial." Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII. See also
(d) Appellant asserts that the trial court erred in failing to instruct the jury on a definition of the term "abandoned and malignant heart." See OCGA § 16-5-1 (b). Specifically, Appellant requested the following charge:
We find no error.
"In reviewing a challenge to the trial court's jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case." (Citations omitted.)
(e) Appellant faults the trial court for failing to instruct the jury on a definition of the word "likely" as used in OCGA § 16-5-21 (b) (2). We disagree. "A `trial court is not required to instruct on the meaning of all words used in the charge, particularly words of common understanding.'" (Citations omitted.)
(f) Finally, Appellant contends that the trial court erroneously admitted two post-incision autopsy photos even though the medical examiner stated that either photo would "sufficiently" explain the victim's injury. This argument is without merit.
While the medical examiner stated that either photo would be "sufficient" to explain the victim's injuries to the jury, he also explained that the two photos provided different perspectives of the injury. As the medical examiner testified at trial, one photo provided an "overview" of the anatomical structure at issue, while the other, which is a close up, details injuries discovered during the autopsy. The medical examiner utilized both photos to discuss the nature of the victim's injuries, which were the subject of intense and lengthy questioning by both parties. Consequently, the photos were relevant under OCGA § 24-4-401, and were not more prejudicial than probative. See OCGA § 24-4-403. Accordingly, trial court's decision to admit both photos was sound. See
For the foregoing reasons, Appellant's conviction for malice murder is reversed, and this case is remanded for proceedings consistent with this opinion.
All the Justices concur.