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Death sentence upheld for man who slit three-year-old's neck

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SUMMARIES OF OPINIONS

Published Thursday, October 31, 2019

 

Please note: Opinion summaries are prepared by the Public Information Office for the general public and news media. Summaries are not prepared for every opinion released by the Court, but only for those cases considered of great public interest. Opinion summaries are not to be considered as official opinions of the Court. The full opinions are available on the Supreme Court website at www.gasupreme.us .

 

FORD, WARDEN V. TATE (S19A0825) and TATE V. FORD, WARDEN (S19X0826)

In an opinion today, the Supreme Court of Georgia has reinstated two death sentences that were given to a young man for his role in shooting to death a woman in Paulding County and fatally slitting the throat of her 3-year-old daughter.

According to the evidence at trial, the morning of Dec. 11, 2001, 21-year-old Nicholas Cody Tate and two of his brothers, Dustin Tate, then age 18, and Chad Tate, age 15, left the home where they lived with their mother and went to a local sporting

goods store to purchase ammunition, duct tape, and knives before driving to the home of Chrissie Williams. Williams’s husband had previously sold methamphetamines to Nicholas Tate, and the brothers devised a plan to burglarize the Williams’s home, steal drugs and money, and rape Chrissie, knowing she would be at home. When they arrived, Katelyn Williams, the Williams’s 3-year-old daughter, answered the door, and upon seeing the three armed men, ran through the house screaming. Dustin Tate found Chrissie Williams sleeping in a bedroom with her 2-year-old son in a crib beside her, and he shocked her with a stun gun, believing it would render her unconscious. When it did not, Dustin Tate forced her to the room across the hallway. The three brothers taped Williams’s mouth and eyes with duct tape, handcuffed her hands to the headboard, and taped her legs to the footboard of the bed. Nicholas Tate threatened to beat Williams with his handgun if she did not “shut up,” then he and Chad Tate ransacked the home searching for drugs and money. They also undressed the 3-year-old for their sexual gratification. The little girl would not stop crying, and Nicholas Tate directed his younger brother, Chad, to silence her. When Chad Tate’s attempt to strangle the child with a phone cord did not succeed, Nicholas Tate gave him his knife. Chad Tate slit the child’s throat; she bled to death. Nicholas Tate then entered the room where Chrissie Williams was crying hysterically, placed a cushion over her head, shoved his pistol into it, and fired one shot through the pillow, killing her. After seeing that Chad Tate had slit the little girl’s throat, Dustin Tate became so upset that Nicholas Tate instructed him to wait outside. The three brothers fled Georgia, and in Mississippi, kidnapped a woman and stole her vehicle. Eventually, at their father’s suggestion, they surrendered to authorities in Oklahoma.

A year after the murders, Dustin and Chad Tate each pleaded guilty in Paulding County in exchange for life prison sentences with the possibility of parole. In November 2005, Nicholas Tate pleaded guilty to malice murder, kidnaping with bodily injury, conspiracy to commit armed robbery, child molestation, possession of a firearm during the commission of a felony, and cruelty to children. Tate waived his right to a jury trial for his sentencing, and following a bench trial (before a judge with no jury), the judge sentenced him to death for each of the two murders plus multiple consecutive prison terms for the remaining counts. In June 2010, the Supreme Court of Georgia upheld Tate’s convictions and death sentences. On Jan. 31, 2012, hours before his execution, Tate filed a state petition for a writ of habeas corpus and his motion for a stay of execution was granted. (Habeas corpus is a civil proceeding that allows already convicted prisoners to challenge their conviction on constitutional grounds in the county where they’re incarcerated. They generally file the action against the prison warden, who in this case was Benjamin Ford.) Following a hearing, in 2018, the habeas court vacated Tate’s death sentences after finding that Tate had received “ineffective assistance of counsel” at his sentencing trial in violation of his constitutional rights, but the habeas court left his convictions intact. The warden/State then appealed the vacating of the death sentences to the state Supreme Court, while Tate’s attorneys appealed the habeas court’s denial of relief for Tate’s other claims.

In today’s 138-page opinion, “we reverse and reinstate Tate’s death sentences,” Justice Robert Benham writes for a unanimous Court. “In Tate’s cross-appeal, we affirm” the habeas court’s denial of several of his claims, including that his constitutional right to a speedy trial was violated.

The habeas court’s finding that Tate did not want his trial attorney to present mitigating evidence at his sentencing hearing and that he wanted to receive the death penalty “are pivotal here,” the opinion says. “The Warden is correct that there is a conflict between the habeas court’s factual findings and its legal analysis.” The habeas court found that the record “shows that following trial counsel’s attempts to negotiate a plea, [Tate] expressed a desire to plead guilty, did not want trial counsel to present mitigation evidence, and wanted to receive the death penalty.” Despite those findings, the opinion says, the habeas court applied the U.S. Supreme Court’s 1984 decision in Strickland v. Washington in concluding that his trial attorneys performed so deficiently that they prejudiced – or damaged – his case by failing to investigate and present mitigating evidence. Specifically, the habeas court faulted trial counsel for failing to present evidence that Tate’s childhood “was characterized by poverty, neglect, incest, and physical, sexual, and emotional abuse.” But the habeas court failed to consider the U.S. Supreme Court’s 2007 decision in Schriro, Warden v. Landrigan, which stated that a defendant who “interferes with counsel’s efforts to present mitigating evidence to a sentencing court” cannot prove prejudice under Strickland based on counsel’s failure to conduct an adequate investigation or to present such evidence. For Landrigan to apply to Tate’s case, “the record must establish that the defendant clearly and unequivocally expressed an intention not to present any mitigating evidence or to limit the mitigation evidence.” Here, the record “clearly” supports Tate’s intention, today’s opinion says.

During the habeas proceedings, Tate’s trial attorneys testified that they “were exasperated because we felt like we had a very strong mitigating case.” One attorney said the problem was that Tate “took the position that he had committed a crime worthy of death, according to…the Bible.” The lead counsel for Tate testified that Tate “wanted to go straight to death row” and didn’t want his attorneys “to even try to save his life.” Tate himself stated at his plea hearing: “I do realize that I have done wrong, and I believe that the punishment should fit the crime, life for life.” He told the judge that he had read the Bible several times while incarcerated and he believed “that if you committed a crime worthy of death [you] refuse not to die.” Then he said, “That’s how I am. I’m refusing not to die. I’m given the opportunity that I have taken from the family. I’ve taken two lives from the family – I have taken one life and I have been a party to taking another. And I believe that they should have the same opportunity.” 

“Thus, Tate clearly stated that…he wanted what he felt was the appropriate sentence for his crimes, which was the death penalty,” the opinion says. “Accordingly, in light of the evidence in the trial and habeas records, we conclude that the habeas court’s factual findings that, ‘following trial counsel’s attempts to negotiate a plea, [Tate] expressed a desire to plead guilty, did not want trial counsel to present mitigation evidence, and wanted to receive the death penalty’ are not clearly erroneous.” However, in addition, “we are convinced that a proper analysis of Tate’s case requires” determining whether his decision not to present mitigating evidence was an “informed and knowing” one. 

In today’s opinion, the high court has concluded that, “Tate was competent and made an informed and knowing decision not to present mitigating evidence at his sentencing trial.” Therefore, “his ineffective assistance of counsel claim must fail.”  

In a nine-page concurrence, Justice Keith R. Blackwell writes that he agrees with the Court’s opinion, “which identifies several reasons to reject the various claims for relief that have been asserted by habeas counsel on behalf of Nicholas Cody Tate. I write separately to note another – Tate apparently didn’t want any relief.” The morning of the habeas hearing, Tate gave one of his lawyers a handwritten statement “in which he said unequivocally that he wished to withdraw his habeas petition, forego further judicial review of his death sentence, and permit the State to carry out the sentence ‘without any further protests on my behalf,’” the concurrence says. Tate’s attorneys gave the statement to the judge “under protest.” Four-and-a-half years later, the habeas court issued its final order, granting Tate habeas relief and vacating his death sentences. “A competent adult generally gets to decide for himself whether to seek relief from the courts, and that principle holds even when applied to an inmate under sentence of death who wishes to forego the opportunity to pursue habeas relief,” the concurrence says. The record in this case shows only “an unequivocal request by Tate to withdraw his habeas petition and no sufficient basis for concluding that his request is the product of anything other than the free, voluntary, and intelligent decision of a competent adult. To deny him the right to choose for himself whether to continue his habeas proceedings on this limited record was wrong,” the concurrence says. The concurrence also underscores the obligations of attorneys. “When a habeas petitioner represented by counsel indicates that he wishes to withdraw his petition and discontinue the proceedings, his lawyer certainly may take some time to fully advise the petitioner about his legal options, to take care that the petitioner has not made his decision under any misapprehension of the law, and to ensure that the decision is a sincere, voluntary, and unequivocal one. And if the lawyer doubts that the petitioner is competent to make the decision, the lawyer has an obligation to raise the question of competence with the court,” the concurrence says. “But once the lawyer has discharged these responsibilities, the lawyer ultimately must honor the decision of a competent client.” Justices Michael P. Boggs, Nels S.D. Peterson, and Charles J. Bethel have joined in the concurrence.

Attorneys for State: Christopher Carr, Attorney General, Beth Burton, Dep. A.G., Sabrina Graham, Sr. Asst. A.G.

Attorneys for Tate: Vanessa Carroll, Mark Olive 

 

MARTIN ET AL. V. FULTON COUNTY BOARD OF REGISTRATION AND ELECTIONS ET AL. (S19A0769)

The Supreme Court of Georgia has upheld a Fulton County court’s dismissal of a lawsuit challenging the 2018 election for Georgia’s lieutenant governor.

“Because the evidence Petitioners presented at trial ‘failed to carry the burden of demonstrating the election results should be invalidated by establishing a sufficient number of specific irregular or invalid votes to change or place in doubt the results, or by establishing sufficient irregularities in the election process to cast doubt upon the results,’ we affirm the trial court’s ruling involuntarily dismissing Petitioners’ petition at the conclusion of trial,” Justice Sarah Warren writes for a unanimous court.

Following the Nov. 6, 2018 general election, the Coalition for Good Governance, a non-profit organization, Rhonda J. Martin, an “aggrieved elector,” Jeanne Dufort, an “aggrieved elector,” and Smythe DuVal, the Libertarian candidate for Secretary of State, filed a petition in Fulton County Superior Court contesting the 2018 election between Geoff Duncan and Sarah Riggs Amico for lieutenant governor. Of the 3,780,304 ballots counted in that election, Duncan received 1,951,738 votes and Amico received 1,828,566 with Duncan winning by a margin of 123,172 votes. In a lawsuit against the Secretary of State of Georgia, Duncan, and the registrations and elections boards of Fulton, Gwinnett, and DeKalb counties, the petitioners argued that the electronic voting machines used were so defective that the result of the election for lieutenant governor was placed in doubt, and they requested that the lieutenant governor election be declared invalid and a new election ordered using paper ballots instead of the “direct-recording electronic” (DRE) voting system.

In January 2019, following a bench trial (i.e. before a judge with no jury), the judge found that the petitioners “presented evidence that the DRE system of voting used in Georgia has many problems and irregularities and is regarded as an outdated and inaccurate system of conducting a vote.” In the race for Lieutenant Governor specifically, the trial court found that there were five instances of problems with voting at two precincts and that there were 4.5 percent fewer votes in the Lieutenant Governor’s race than in the Governor’s race (what petitioners call the “undervote.”) However, the trial court also found: “There was no evidence of misconduct, fraud, or irregularity by any primary or election official or officials,” and it concluded that the petitioners had not “shown any evidence that illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result in the race for lieutenant governor.” It also concluded that the vote totals, margin of victory, and undervote “do not show any irregularity or illegality in themselves.” The trial court went on to find that “the most votes that the Plaintiff has shown that could be in any way arguably considered irregular or illegal is approximately 32,000 votes.” Even assuming that all those votes went to Amico, the number could not overcome the 123,172 vote difference between Duncan and Amico. The trial court concluded that the petitioners failed to place in doubt the result of the election for lieutenant governor and dismissed the plaintiffs’ petition.

The petitioners then appealed to the Georgia Supreme Court, arguing that the trial court erred in dismissing their petition. On appeal, they claimed that historical voting patterns in the last four general elections show less than a 1 percent average undervote between elections for lieutenant governor and governor. The “extreme undervote” in this election, the plaintiffs argued, combined with the “proven vulnerability” of Georgia’s electronic voting machines as well as specific instances of machine malfunction place in doubt the result of the election for lieutenant governor and require a new election under Georgia Code § 21-2-527 (d).

Today’s opinion lays out in detail the events and arguments the Supreme Court has considered in reaching its conclusions. “In light of that record, the relevant statutes, and case law interpreting those statutes, and given our review of the trial court’s factual findings and legal conclusions in this case, we affirm the dismissal of Petitioners’ petition,” the opinion says.

“This Court has long held that ‘the party contesting the election has the burden of showing an irregularity or illegality sufficient to change or place in doubt the result of the election.’ To prevail on such a claim, a party contesting an election must therefore offer evidence – not merely theories or conjecture – that places in doubt the result of an election. And although the technology our State has used to conduct elections has changed over time, the burden a party carries when challenging the result of an election has not.”

“The Petitioners in this case have not carried that burden,” today’s opinion says.

As to specific numbers of illegal or irregular votes, the trial court found “five instances of problems with voting at two precincts” and “no evidence of misconduct, fraud, or irregularities” by officials. “Given these factual findings and the small number of irregularities involved, we cannot say that the trial court erred as a matter of law when it concluded that the Petitioners had ‘not shown any evidence that illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result in the race for Lieutenant Governor,’” the high court concludes.

As to claims of systemic irregularities, today’s opinion states that the heart of petitioners’ case “is best summarized by their contention on appeal that they ‘established to a near metaphysical certainty that’ Georgia’s ‘profoundly vulnerable machines caused thousands of voters using electronic machines to either not vote for Lieutenant Governor or for those votes to not be counted.’ But because that assertion is wholly unsupported by the record Petitioners created below, the trial court did not err when it concluded that Petitioners failed to meet their burden of showing an irregularity in Georgia’s electronic voting system sufficient to cast doubt on the 2018 election.”

Attorney for Appellants (Martin et al.): Bruce Brown

Attorneys for Appellees (Fulton Board et al.): Edward Lindsey, Jr., Bryan Tyson, Frank Strickland, Bryan Jacoutot, Richard Carothers, Brian Dempsey, Patrise Perkins-Hooker, Kaye Burwell, Cheryl Ringer, David Lowman

 

 

 

DADDARIO V. THE STATE (S19A0684)

The Supreme Court of Georgia has upheld a man’s aggravated child molestation conviction and life prison sentence for having sex with his 14-year-old daughter, which resulted in a “very painful and potentially life-threatening childbirth.”

At issue in today’s 35-page opinion is whether evidence of such a traumatic childbirth constitutes the “physical injury” Georgia statutory law requires for the crime of aggravated child molestation.  

In August 2015, a Hall County grand jury indicted Lawrence Daddario with aggravated child molestation, incest, statutory rape, and two counts of cruelty to children in the second degree. The primary allegation was that Daddario had sexual intercourse with his 14-year-old daughter, S.D., and she became pregnant, giving birth when she was 15.

According to the evidence at trial, by the time S.D. was in the eighth grade at school, she could not remember how long her father had been having sexual intercourse with her, but she said it seemed as if it had been every day for her “whole life.” He did not wear condoms and told her it was right for them to have sex, and that she should do it because she was too “ugly” to have a boyfriend. After she missed several periods in 2014 when she was 14, she told her father she was pregnant. He threatened to kill her if she told anyone that he was the father. The girl told him she wanted to have an abortion. But he said no and took her to a faith-based pregnancy resource center that did not perform abortions. Due to the girl’s age, the resource center contacted the sheriff’s office. The local Department of Family and Children Services took custody of S.D. and her brothers, and the juvenile court appointed a Court Appointed Special Advocate (CASA) volunteer for the siblings.

S.D. was placed in a foster care home where she eventually told the foster mother that her father was the baby’s father. The CASA volunteer talked to S.D. about the disclosure, but the girl had trouble talking about what had happened to her. In June 2015, the CASA visited Daddario in jail to get more information. During the conversation, which the jail recorded, Daddario admitted to the CASA that he had had sex with his daughter more than once.

In August 2015, while lying on a recliner at her foster home, S.D. delivered a baby that was still enclosed in an intact amniotic sac. The foster mother described the scene as “traumatic” and said she “had never seen so much blood.” DNA samples taken from the baby later confirmed that Daddario was the father. 

The indictment stated Daddario had committed aggravated child molestation by engaging in sexual intercourse with his daughter, “resulting in physical injury to said child by impregnating her causing said child to endure childbirth….” Georgia Code § 16-6-4 (c) states, “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” One commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person….” Prior to trial, Daddario’s attorney filed a motion to dismiss the aggravated child molestation count, arguing that “the injury element of aggravated child molestation cannot be proven through pregnancy and childbirth.” The defense also argued that the statute was “unconstitutionally vague” as applied to Daddario. The trial court denied the motion. 

Following an August 2016 trial, the jury found Daddario guilty on all counts, and he was sentenced to life plus 20 years in prison. Daddario then appealed to the Georgia Supreme Court, challenging the constitutionality of the aggravated child molestation statute.

Today’s opinion, written by Justice Michael P. Boggs, points out that on the one hand, Daddario “asks this Court to hold that evidence related to a resulting pregnancy or childbirth is never legally sufficient under Georgia law to support a jury finding that an act of child molestation caused physical injury to the child.” On the other hand, “the State asks us to hold that evidence of a pregnancy or childbirth alone is always sufficient to support such a standing.”

“We instead hold that whether an act of molestation proximately caused physical injury to the child victim is a question of fact to be decided by the jury based on the evidence presented at trial and is not dictated by per se rules like the ones sought by Appellant [Daddario] and the State, which do not appear in the text of the aggravated child molestation statute,” the opinion says. “And we hold that the evidence here – which showed that Appellant’s act of child molestation proximately caused his daughter to endure a very painful and physically traumatic childbirth nine months later – is legally sufficient to support a jury finding of the physical injury element of aggravated child molestation.” 

The Court finds that Daddario’s “act of unprotected sexual intercourse with his 14-year-old daughter, ‘in a natural and continuous sequence, unbroken by any efficient intervening cause, produce[d] injury’ to S.D. in the form of a childbirth with severe tearing and potentially life-threatening blood loss, as well as pain during the delivery and for the next six weeks that was serious enough to warrant treatment with prescription pain medication, none of which would have occurred but for Appellant’s immoral and indecent act of molestation,” the opinion says. The Court notes in a footnote that “we do not hold that evidence of childbirth or a pregnancy alone is always sufficient to support a jury finding that an act of child molestation proximately caused physical injury to the child as required to sustain a conviction for aggravated child molestation.”

“We also reject Appellant’s claim that the aggravated child molestation statute violates due process because it is unconstitutionally vague as applied to his conduct with his 14-year-old daughter, as well as his claim that the trial court erred in admitting at trial the incriminating statements that he made to the CASA volunteer,” the opinion says. “Accordingly, we affirm Appellant’s conviction and sentence for aggravated child molestation.”

In a special concurrence, Justice Keith R. Blackwell writes that he agrees with the Court’s judgment, but wants to note that this decision could have a “troubling consequence” that the General Assembly “likely never intended.” “To the extent that any injury sustained in childbirth is a physical injury under the statute, anyone who causes a child under the age of consent to become pregnant and experience childbirth is exposed to prosecution for aggravated child molestation, a crime that is among the most serious felonies and is punishable by imprisonment for no less than 25 years and up to life,” the special concurrence says. “No one will lose much sleep over the prospect that someone like the appellant in this case – a sexually predatory father who repeatedly had sexual intercourse with his teenaged daughter – might spend the rest of his natural life in prison. But understanding the statute as we do today, a 16-year-old high school sophomore who has intercourse – without any force or other coercion – with his 15-year-old girlfriend and causes her to become pregnant and experience childbirth also would face the prospect of imprisonment for life.” Unlike other sex offenses, the General Assembly has made no provision for more lenient treatment of teenagers in cases of aggravated child molestation that are based on physical injury. “Consequently, aggravated child molestation predicated on physical injury – which this Court now has held, may be proved by evidence of an injury sustained in childbirth – is punishable only by ‘imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life,’” the special concurrence says. “If that is a concern for the General Assembly, perhaps it will consider a further revision of Georgia Code § 16-6-4.” 

Justice Sarah H. Warren also has written a special concurrence to point out that today’s opinion “does not answer – because it need not answer in this particular case – whether evidence of pregnancy alone” can constitute physical injury and “can thus serve as a predicate for aggravated child molestation” under Georgia Code § 16-6-4. “If Georgia’s General Assembly would like to clarify definitively whether pregnancy is a predicate for aggravated child molestation – because it is (or is not) delineated as a separate statutory aggravator, because it is included in (or excluded from) [physical injury] under § 16-6-4 (c), or because of some other type of legislative revision best imagined by the legislative branch – then it should lift that determination out of the hands of prosecutors, juries, and judges and act as policymaker to amend the statute,” the special concurrence says. “Absent further guidance from the General Assembly, however, Georgia courts may be faced with a more complicated line-drawing exercise than this Court has had to engage in today.”  

Attorneys for Appellant (Daddario): H. Bradford Morris, Circuit Public Defender, Matthew Leipold, Asst. P.D., Brett Willis, Asst. P.D.

Attorneys for Appellee (State): Lee Darragh, District Attorney, Wanda Vance, Asst. D.A. 

 

EBERHART V. THE STATE (S19A0803)

The Supreme Court of Georgia has upheld the felony murder conviction and life prison sentence given to a former City of East Point police sergeant for the tasing death of a suspect following a domestic abuse call.

According to the facts at trial, the afternoon of April 11, 2014, 24-year-old Gregory Towns Jr. died after East Point officers Marcus Lecarl Eberhart and Howard J. Weems, Jr. applied a TASER device to his body. Earlier that day, police had received a call regarding a report of domestic disturbance at the town house complex of Towns’ girlfriend in Fulton County. Officer Nicole Allen was the first to arrive and, after identifying Towns at the entrance of the complex, called out to him. Towns ignored Officer Allen and walked past her. Allen’s partner, Officer Irvin Johnson, arrived moments later and informed Towns they were going to detain him until they could sort out the domestic disturbance issue. But when he placed his hand on Towns’ forearm to handcuff him, Towns slapped it away and took off running into nearby woods. After running about a quarter of a mile, Towns tripped and Johnson was able to catch up. Johnson handcuffed and arrested Towns, who said, “OK, you got me.” From that point on, Towns did not attempt to flee, struggle, or resist. Both Towns and Johnson were exhausted from the run. Towns was 6’ 6” tall and weighed 281 pounds. At 3:22 p.m., Johnson radioed that he had the suspect in custody and requested an ambulance for Towns, who was breathing heavily and kept saying he was tired. Eberhart, who was the highest ranking officer in the group, heard the radio call and canceled the ambulance, instructing the officers to wait until he arrived and assessed the situation. While waiting for Eberhart, the officers instructed Towns to get up and make his way out of the woods. They helped Towns to his feet, but after walking a few steps, Towns fell to the ground and said he was too tired to proceed. The officers helped him to his feet a second time, but after taking a few steps, he again fell back down in a seated position. By then, Towns was lethargic and breathing heavily, although he was able to talk. After Eberhart arrived on the scene, he instructed Towns to walk toward the patrol cars, but Towns said he was too tired. Eberhart then ordered Weems to “tase his a**” if Towns did not get up. With the TASER in “drive-stun” mode, Weems tased Johnson on his stomach. Weems and Eberhart were both equipped with a TASER X26. Towns, still in handcuffs, said he would get up and the officers helped him to his feet, but after taking a few steps, he fell again. Eberhart then approached Towns as he sat near the creek and ordered Towns to get up. When Towns said he was too tired, Eberhart tased Towns in the leg. Records indicate that Eberhart and Weems repeatedly tased Towns with the device in drive-stun mode to get Towns to comply with their orders to get up and walk out of the woods. Data from their TASERs showed that Weems pulled his trigger four times and Eberhart pulled his 10 times. At one point after being threatened with being tased again, Towns said, “Give me a second, I’m tired,” then he again tried with assistance to stand and walk. This time when he fell, he rolled down the embankment and into the creek. By then, Towns had stopped talking and, according to a neighbor who went down to the creek to assist Towns, appeared to be “asleep with his eyes open.” After additional efforts to help Towns get up failed, Eberhart called at 3:43 for an ambulance to do a “welfare check” on Towns.

Fire and rescue arrived at 3:55 p.m. After determining that Towns was not breathing and had no pulse, the paramedic immediately requested that Towns’ handcuffs be removed so they could perform CPR. The fire and rescue teams were able to get Towns on a backboard and carry him up to the ambulance. Towns was transported to the emergency room where he was pronounced dead at 4:33 p.m.                                                                                                                                                                                                                                                                                                                 

The medical examiner determined that Towns died due to hypertensive cardiovascular disease exacerbated by physical exertion and “conducted electrical stimulation” from the application of the TASERs in drive-stun mode. A cardiac electrophysiologist later testified that the repeated tasing accelerated Towns’ death, and a forensic pathologist testified that the tasing exacerbated his pre-existing heart condition and caused his death. An expert witness for the defense testified that the TASER did not contribute to Towns’ death.

In August 2015, Eberhart and Weems were indicted for felony murder, aggravated assault with a deadly weapon, involuntary manslaughter, reckless conduct, and violation of oath by a public officer. Several law enforcement officers testified at trial that Eberhart had violated the standard operating procedures of the East Point Police Department and general guidelines for the use of a TASER in “drive-stun” mode. The use of a TASER while a suspect is handcuffed is not authorized unless “exigent circumstances exist.” Eyewitness testimony at trial indicated that, after the victim was handcuffed and placed under arrest, he did not kick, scream, or curse or present a threat to himself or anybody else. A number of officers testified that Towns was passively resistant when Eberhart ordered Weems to tase him. East Point Police Chief Woodrow Blue and two captains testified they did not find any evidence of “exigent circumstances” and that repeatedly “drive-stunning” the victim with the TASER, in an effort to get the victim to walk, was not authorized by the East Point standard operating procedures. Blue said Eberhart was terminated as a result.

Following a joint two-week trial in December 2016, the jury found Eberhart guilty of all charges and he was sentenced to life in prison. Weems was found guilty of involuntary manslaughter, reckless conduct, and violation of oath by public officer. He received a First Offender sentence of five years with 18 months to serve in prison and the balance on probation. Eberhart then appealed to the Georgia Supreme Court, arguing that the evidence at trial was insufficient to convict him of felony murder based on aggravated assault with a deadly weapon.

“We disagree,” Justice Michael P. Boggs writes for the Court. The evidence presented at trial was “sufficient to enable a rational jury to find that Appellant [i.e. Eberhart] assaulted Towns with his TASER, which actually did result in serious bodily injury to Towns. Accordingly, the evidence was sufficient to support Appellant’s conviction for felony murder based on aggravated assault with a deadly weapon.” Furthermore, “the jury was free to reject Appellant’s claims of justification and accident,” the opinion says. 

Among other arguments, Eberhart also argued that “proof of the infliction of intense physical pain is legally insufficient, standing alone, to support a jury finding of serious bodily injury as required to support a conviction for aggravated assault with a deadly weapon,” the opinion says. However, “we need not consider the question further, because Appellant concedes, as he must, that the State presented sufficient evidence to enable a rational trier of fact to conclude beyond a reasonable doubt that the repeated tasing of Towns in drive-stun mode over a span of about 20 minutes when he was exhausted from running and handcuffed behind his back not only inflicted intense physical pain, but also materially accelerated his death minutes later.” This argument, as the others, “lacks merit,” the Court concludes.

Attorneys for Appellant (Eberhart): Sandra Michaels, John Martin

Attorneys for Appellee (State): Paul Howard, Jr., District Attorney, Lyndsey Rudder, Dep. D.A., F. McDonald Wakeford, Asst. D.A., Christopher Carr, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Katherine Emerson, Asst. A.G.  

GREEN V. THE STATE (S19A0644)

The Supreme Court of Georgia has reversed the malice murder conviction and life-without-parole prison sentence given to a man for crushing a woman with his truck. Dewey Calhoun Green argued on appeal that the trial judge improperly excluded testimony of two expert witnesses who would have presented evidence that the incident was an accident.

“Because we agree that the trial court abused its discretion in excluding the entire testimony of one of the expert witnesses, Sean Alexander, for Green’s alleged failure to comply with the requirement set forth in Georgia Code § 17-16-4 (b), we reverse,” Justice Charles J. Bethel writes for a unanimous court. 

According to the evidence at trial, on June 25, 2014, Janice Pitts was driving her burgundy Lincoln Navigator southbound on Highway 5 in Douglas County with her daughter and 4-year-old grandson in the car. As she approached the intersection at Douglas Boulevard, Pitts began moving from the left lane to the turn lane. Green, who was driving a black Chevrolet Silverado truck behind Pitts, also tried pulling into the turn lane and rear-ended Pitts’ Navigator. Pitts and her daughter got out of the SUV, and Pitts walked to the rear of the vehicle to survey the damage. When Pitts reached the back of her SUV, Green’s truck, which some witnesses said had backed up, moved forward and hit Pitts, pinning her between the rear corner of her car and the right front end of his truck. Pitts’ daughter banged on Green’s window to get him to stop his truck. When Green did not respond, Pitts’ daughter ran back to the SUV to move it and free her mother from being crushed by the truck. When that did not work, the daughter got back out of the SUV and approached the truck and her mother. Green then drove partly over a curb and ran over Pitts, who by then had fallen to the ground. The daughter had to move out of the way of the oncoming truck to avoid being hit. Green’s truck then turned in front of Pitts’ SUV, went up a grassy hill in front of a nearby business, and came to a stop. A witness to the incident approached Green’s truck and shifted it into park. Someone called police, who arrived and arrested Green. Pitts ultimately died from the multiple blunt traumatic injuries.

A number of witnesses, including police, described Green as apparently uninjured and responsive following the accident, and some described him as not being particularly emotional. However, one witness who saw Green’s vehicle go up the grassy hill said he was “slouching to the side” and “looked unconscious.” Another, who went to check on him, said she found him “just sort of flailing” and said he did not initially respond to her voice. A third witness who saw Green “shaking around” after his truck came to a stop thought he was having a seizure. Two others noted he was sweating profusely with one of them saying he had a blank face and another saying he was mumbling incoherently. After an officer helped him get out of his truck, Green said, “Oh, God, what did I do? What happened?” The officer noted Green appeared dazed and confused.

Green was indicted by a grand jury for malice murder, three counts of felony murder (for causing the death of Pitts by running her over and while in the commission of an aggravated assault against Pitts’ daughter and grandson), and three counts of aggravated assault (for assaulting Pitts, her daughter, and grandson with an automobile). At trial, the State presented evidence that Green had trace amounts of sedatives in his blood and had been up late the night before the accident. State prosecutors argued that Green intentionally killed Pitts, although his judgment was impaired. Defense attorneys argued Green suffered a concussion and amnesia from the accident and after the initial impact, was not in control of the truck.

Prior to the trial, Green’s defense attorneys emailed to the prosecutor the names of two “may call” expert witnesses: Sean Alexander, an accident reconstructionist, and Richard Franco, a neurologist. The attorneys included their contact information but did not include reports “of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report.” Under Georgia Code § 17-16-4 (b) (2), a defendant must permit the prosecutor to “inspect and copy” such reports “no later than five days prior to trial.” If the report is oral, “the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial,” the statute says. 

On July 22, the prosecutor emailed Green’s attorney and asked whether Alexander was going to testify and, if so, whether he could get a copy of his report. The defense attorney responded that day and said Alexander would be testifying and was expected to explain the vehicle damage and uphill path of the vehicle. However, the defense attorney did not submit any other written summary of Alexander’s or Franco’s opinions to the State prior to trial. 

At Green’s August 2015 trial, after it presented its case, the State made a motion asking the trial judge to exclude Alexander and Franco from testifying based on Green’s alleged failure to comply with Georgia Code § 17-16-4 (b). The trial court granted the motion, finding the defense’s failure to provide the written reports required by the statute was “intentional and prejudicial to the State,” and the trial court excluded Alexander and Franco from testifying.

Following a three-week trial, a jury found Green guilty on all counts, and he was sentenced to life without parole plus 40 years in prison. His attorneys filed a motion requesting a new trial, and at a hearing on the motion, Alexander testified that after reviewing photos from the scene of the accident and video taken following the collision, he would have testified that the vehicle damage he observed indicated that after Green initially hit Pitts’ SUV, his truck had been idling. At some point, a space between Green’s truck and Pitts’ SUV was created. While Pitts was standing in that space, the friction between the vehicles broke, and Green’s truck crushed Pitts. At the same hearing, Franco said he intended to testify that Green lost consciousness after the initial collision and may have suffered a concussion and possible seizure. The trial court denied the motion for new trial, and Green appealed to the Georgia Supreme Court.

In today’s opinion, the high court finds that the evidence was “sufficient to enable a rational trier of fact to find Green guilty beyond a reasonable doubt of the crimes of which he was convicted.” However, in response to Green’s contention that the trial court erred by excluding Alexander from testifying at his trial, “we agree.” 

“This case calls for this Court to construe a provision of [Georgia Code] § 17-16-4,” the opinion says. “Here, the parties and the trial court seem to have been operating under the assumption that a defendant’s intention to present any expert testimony required the defendant, in this case Green, to make available or to serve a report summarizing the entirety of the expert’s opinion under § 17-16-4 (b) (2).” “However, that is not what the Georgia law requires.” The statute only requires that a report be prepared and made available if the defendant intends to introduce as evidence the results of “scientific tests or experiments.” “Alexander’s opinion about the movement of Green’s vehicle was based on various sources of information, only one of which could be considered a scientific test or experiment for purposes of § 17-16-4 (b) (2),” the opinion says. His opinion was based “almost entirely upon his own observations and measurements of the available evidence, as well as application of established principles of mathematics and physics to those measurements, which did not constitute a ‘scientific test or experiment’ requiring disclosure.” “Therefore, the trial court abused its discretion in excluding Alexander’s entire testimony from trial.”

Furthermore, the opinion says, the trial court’s exclusion of Alexander’s testimony was not harmless. “Whether Green’s actions were conscious and voluntary was the critical issue at trial.” “Accordingly, we cannot say that it is highly probable that the erroneous exclusion of Alexander’s testimony did not contribute to the jury’s guilty verdicts,” the opinion concludes. “Judgment reversed.” 

Attorneys for Appellant (Green): Ashleigh Merchant, John Merchant

Attorneys for Appellee (State): Ryan Leonard, District Attorney, David Emadi, Chief Asst. D.A., Sean Garrett, Asst. D.A., Christopher Carr, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Vanessa Sassano, Asst. A.G.