Preview:

SUPREME COURT OF GEORGIA Case No. S11A1663

Atlanta

February 27, 2012

The Honorable Supreme Court met pursuant to adjournment. The following order was passed: EUGENE NEAL v. THE STATE

On February 6, 2012, the Court issued its opinion in this case, with a concurring opinion by Justice Nahmias. The attached concurring opinion by Justice Nahmias is hereby substituted for the one originally filed, and the attached concurring opinion by Chief Justice Hunstein is hereby added. The time for filing any motion for reconsideration is extended to March 8, 2012. Supreme Court Rule 13 (4).

SUPREME COURT OF THE STATE OF GEORGIA Clerk's Office, Atlanta I hereby certify that the above is a true extract from the minutes of the Supreme Court of Georgia Witness my signature and the seal of said court hereto affixed the day and year last above written.

In the Supreme Court of Georgia

Decided: February 27, 2012

S11A1663. NEAL v. THE STATE.

CARLEY, Presiding Justice. A jury found Eugene Neal guilty of the malice murder of his fiancee Dorothy Driskell. The trial court entered judgment of conviction on that guilty verdict and sentenced Neal to life imprisonment. After a motion for new trial was denied, Neal appealed to the Court of Appeals, which transferred the case to this Court.* See State v. Murray, 286 Ga. 258 (687 SE2d 790) (2009); State v. Thornton, 253 Ga. 524 (1) (322 SE2d 711) (1984).

The crime occurred on August 17, 2006, and the grand jury returned an indictment on March 9, 2007. The jury found Neal guilty on October 31, 2008 and, on that same day, the trial court entered the judgment of conviction and sentence. The motion for new trial was filed on November 6, 2008, amended on October 1, 2010 and December 10, 2010, and denied on February 4, 2011. Neal filed the notice of appeal on February 25, 2011, and the Court of Appeals transferred the case on July 1, 2011. The case was docketed in this Court for the September 2011 term and orally argued on January 24, 2012.

*

1. Construed most strongly in support of the verdict, the evidence shows that, in the master bedroom of his house, Neal placed the victim in a chokehold until she passed out. The medical examiner testified that the cause of death was manual strangulation with significant force for at least four minutes. In a statement at the scene and during his testimony, Neal stated that the victim attacked him out of jealousy and bit him and that he was defending himself. However, Neal admitted that he kept the victim in a chokehold until she stopped struggling and that she fell to the floor when he let go. No drugs or alcohol was found in the victim's blood. About 13 years before, Neal choked his then-wife, and there were several other instances of physical abuse by Neal during that marriage. Neal argues that the evidence was insufficient to prove beyond a reasonable doubt that the cause of the victim's death was any act or omission by Neal instead of the severing of her jugular vein by emergency medical personnel during intubation. However, the testimony shows that the emergency personnel actually punctured the jugular vein while attempting to start an I.V. line and that such a puncture was normal in the circumstances. (T. 545-547) There is no evidence that the medical treatment by emergency personnel was negligent.
3

Even if it were negligent, it would not normally constitute an intervening cause unless, unlike here, it was a gross mistreatment. Robert E. Cleary, Jr., Ga. Criminal Offenses and Defenses, Homicide (I) (D) (2011 ed.). See also Hendrick v. State, 257 Ga. 17, 18 (5) (354 SE2d 433) (1987); 1 Wayne R. LaFave, Substantive Criminal Law

Download S11A1663. NEAL v. THE STATE 2-27-12 Substitute opinion issued..pdf

Georgia Law