Shields v. State

A jury found Michael S. Shields guilty of malice murder, felony murder, aggravated assault, aggravated battery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, all in connection with the fatal shooting of Denise Hill. Shields challenges his. convictions and the denial of a new trial on the grounds that the evidence was insufficient that he caused the victim’s death, the trial court erred by giving certain instructions to the jury, and trial counsel rendered ineffective assistance. Finding the challenges to be without merit, we affirm the judgments of conviction and the denial of a new trial.1

The evidence construed in favor of the verdicts showed that *373Shields and Hill were involved in an ongoing romantic relationship that began in 1992 and produced two children. In 2000, however, Hill met a police officer, Lindo, and engaged in a sexual relationship with him. Shields became aware of Hill’s relationship with Lindo and was jealous. Hill’s friend, Davis, heard Shields threaten the victim on several occasions, telling Hill that he “was going to cut up her face where no man would want her” and that he “would put her in a grave beside her mother.” The day before Hill was shot, Shields told Davis that he was “tired” of Hill’s relationship with Lindo and “he couldn’t take it anymore.” He told Davis to warn Hill that he was “going to put a shot in her to burn her whole body.”

On September 23, 2002, Shields and Hill argued over her relationship with Lindo. The argument and ensuing violence was witnessed by Hill’s nephew, Walker, who resided with her. During the argument, Hill attempted to leave the house, but Shields followed her out the door. Hill returned to the house and Shields entered behind her. Hill retreated to her bedroom. Shields again followed her. The argument continued, and Shields pushed Hill and she fell to the floor. Shields then shot Hill multiple times in the back. Following the shooting, Shields dragged Hill out of the bedroom to show her children that their mother was dead. Hill, however, was still alive. A gunshot wound to Hill’s neck injured her spinal cord, resulting in her immediate paralysis; she was quadriplegic.

When police arrived at the house, Shields told them, “I did it.” Shields was arrested and interviewed. He explained that he was tired of Hill’s affair, and that at some point during the argument, Hill telephoned Lindo and left a voicemail message requesting that he call her back immediately. Shields decided that if Lindo returned Hill’s call, he would shoot her. Lindo returned Hill’s call. Shields told the police that after Lindo called Hill back, he shot her several times.

Hill lived for approximately six months after the shooting. An autopsy revealed that Hill died as a result of swelling of the brain caused by an intracerebral hemorrhage. The pathologist who performed the autopsy concluded that the most likely cause of the hemorrhage was the anticoagulant drug Coumadin, which Hill was taking to treat deep vein thrombosis, a dangerous condition in which there are blood clots in the lower extremities of the body. The thrombosis occurred as a result of the immobilization caused by *374Hill’s paralysis. The pathologist testified that if Hill had not been shot, she would not have been paralyzed, would not have developed the deep vein thrombosis, would not have needed the Coumadin, and thus, would not have suffered the intracerebral hemorrhage that killed her.

1. Shields contends that the State’s evidence was insufficient to support the murder verdicts because it did not establish with certainty that his actions caused the brain hemorrhage which led to the victim’s death. He argues that the State relied on medical evidence which was circumstantial, which could not exclude other reasonable hypotheses, such as an unexplained hemorrhage that was unrelated to the gunshot wounds, and therefore, that there was a reasonable hypothesis of innocence. But, such argument is unavailing.

Certainly, the cause of death in a homicide case may be proven by circumstantial evidence. Sorrells v. State, 267 Ga. 236, 238 (1) (a) (476 SE2d 571) (1996). However, contrary to Shields’ contention, the pathologist’s testimony about the autopsy findings and his opinion regarding the cause of the victim’s death constituted direct, not circumstantial, evidence. Kirk v. State, 289 Ga. App. 125, 126 (656 SE2d 251) (2008); see also Jones v. State, 243 Ga. 584, 585 (1) (255 SE2d 702) (1979). The trial court in this case charged the jury on circumstantial evidence as well as direct evidence, and correctly instructed it that to warrant a conviction based upon circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but also must exclude every other reasonable theory save that of the guilt of the accused. Smith v. State, 284 Ga. 304, 306 (2) (667 SE2d 65) (2008). Whether every reasonable hypothesis except that of the guilt of the defendant has been excluded is a question for the jury. Lindsey v. State, 271 Ga. 657, 658 (1) (522 SE2d 459) (1999). This is so because “the factfinder has heard the witnesses and observed them testify,” and therefore, “is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.” (Footnote omitted.) Boyd v. State, 291 Ga. App. 528, 530 (662 SE2d 295) (2008). Here, the jury resolved the issue of causation of the victim’s death adversely to Shields, and understandably so. The only cause of the victim’s death supported by the evidence was that it was the result of an intracerebral hemorrhage caused by the anticoagulant drug Coumadin. The pathologist testified that intracerebral hemorrhages such as the one that resulted in the victim’s death are “commonly well known to be associated with anticoagulation [medication].” The defense extensively questioned the pathologist about other possible causes of the brain hemorrhage, and the pathologist rejected each as unlikely. While the pathologist *375acknowledged that it was “possible” that the hemorrhage was caused by something other than the Coumadin, he found no medical evidence to support such possibilities. Even if the evidence of causation was circumstantial, the jury was authorized to reject as unreasonable possibilities which were only theoretical, as those now offered by Shields. Walker v. State, 282 Ga. 406, 408 (1) (651 SE2d 12) (2007).

The evidence was sufficient to enable a rational trier of fact to find Shields guilty beyond a reasonable doubt of malice murder and the related crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Shields contends that the trial court committed reversible error regarding his conviction for malice murder2 when it charged the jury:

And if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which the weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill. Whether or not you make any such inference is a matter solely within the discretion of the jury.

He argues that the charge was harmful to him because there was direct and circumstantial evidence that he intended only to seriously injure, but not kill, the victim. But, the argument is unavailing. While the giving of this charge was error, see Harris v. State, 273 Ga. 608, 609-610 (543 SE2d 716) (2001), the evidence of Shields’s intent to kill the victim, i.e., malice, was overwhelming; therefore, it is highly probable that it did not contribute to the verdict. Flanders v. State, 279 Ga. 35, 40 (8) (609 SE2d 346) (2005).

3. Shields next contends that the trial court erred by charging the jury that,

[t]o kill another person for past acts of adulterous behavior or to prevent apparent commission or the completion of adulterous behavior between them, nothing else appearing is murder

without also giving the jury the language which follows from the pattern charge, that reiterates that adultery can amount to provo*376cation.3 He argues that such omission misled the jury by implying that adultery can never provide the necessary provocation to mitigate a killing from murder to manslaughter.

On the contrary, the charge as given “[left] the door open for the jury to consider whether such killing was committed in circumstances which would constitute voluntary manslaughter.” Ricketts v. State, 276 Ga. 466, 472-473 (6) (579 SE2d 205) (2003). Moreover, the instruction must be considered in the context of the totality of the court’s charge.4 Id. In the context of the court’s charge as a whole, the instruction in no way misled the jury or hindered Shields’s ability to attempt a defense of voluntary manslaughter. Id.

4. Lastly, Shields contends that his trial counsel was ineffective because he did not request a jury charge that would have clearly informed the jury that adultery can constitute legal provocation. He urges that it was possible that his defense would have been stronger with such an instruction, and that the failure to obtain it was prejudicial because there is a reasonable probability that the jury believed his voluntary manslaughter argument was barred as a matter of law, and that the jury would have found sufficient provocation to reduce the homicide from murder to voluntary manslaughter. But, that is hardly the case.

In order

[t]o prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been *377different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Allen v. State, 284 Ga. 310, 315 (4) (667 SE2d 54) (2008). As noted, the trial court’s instruction to the jury plainly permitted the jury to consider whether Shields killed the victim under circumstances which would constitute voluntary manslaughter. See Division 3, supra. Consequently, trial counsel’s failure to request additional instruction in that regard “cannot constitute the deficient performance necessary to satisfy the first prong of the ineffective assistance of counsel test.” Miller v. State, 283 Ga. 412, 416 (4) (b) (658 SE2d 765) (2008). Moreover, Shields cannot show a reasonable probability that the outcome of his trial would have been different had his attorney requested it. Id. The evidence that Shields acted with malice was overwhelming. See Division 2, supra.

Judgments affirmed.