Preview:

Final Copy 290 Ga. 609

S11A1979. ALVELO v. THE STATE.

BENHAM, Justice. Appellant Stephen Alvelo was convicted of the malice murder of Walter Cooper, the aggravated assaults and false imprisonments of Melissa Williams and Joey Freitag, possession of a knife during the commission of a crime, and concealing a death.1 He brings this appeal from the trial court's denial of his amended motion for new trial, following this Court's remand of the case to the

The crimes occurred on August 11, 2006. In January 2009, a Chatham County grand jury returned a true bill of indictment against appellant, charging him with malice murder, felony murder (aggravated assault), three counts of aggravated assault, concealing the death of another, false imprisonment, and possession of a knife during the commission of a crime. Appellant's trial took place August 17-20, 2009, and appellant was found guilty of all charges. Appellant was sentenced to life imprisonment on August 24 for malice murder, and received sentences of 20 years for the aggravated assault of the murder victim, ten years for concealing the death of the murder victim, and ten years for each of the false imprisonments of Williams and Freitag, with these sentences to be served concurrently with the life sentence. Appellant was sentenced to 20 years for each of the aggravated assaults of Williams and Freitag, and five years for possessing a knife during the commission of a crime, with these sentences to be served consecutively to the sentence of life imprisonment. The felony murder conviction was vacated by operation of law. Following the denial on March 30, 2010, of appellant's timely-filed and amended motion for new trial, this Court vacated the judgment of conviction and remanded the case to the trial court for application of "the proper standard in assessing the weight of the evidence as requested by Alvelo in his motion for new trial." Alvelo v. State, 288 Ga. 437 (1) (704 SE2d 787) (2011). Following a hearing, the trial court issued an order denying appellant's motion for new trial on July 14, 2011. A timely notice of appeal was filed on August 11, 2011, and the appeal was docketed in this Court to the September 2011 term of court and submitted for decision on the briefs.

1

trial court. See Alvelo v. State, 288 Ga. 437 (704 SE2d 787) (2011). Walter Cooper's body was found wrapped in a comforter under a mattress on the front porch of a house he shared with appellant and fellow victims Melissa Williams and Joey Freitag. The forensic pathologist who conducted the autopsy on Cooper testified that he died as a result of "multiple sharp force injuries," some of which were consistent with having been inflicted with a knife found in the kitchen and some with having been inflicted with an object like the hatchet found at the scene. Ms. Williams testified that she and Freitag returned to the residence on August 11, 2006, to find appellant, with a "crazy" look in his eyes, cleaning up blood in the kitchen. Appellant grabbed a hatchet from a kitchen countertop and ordered Freitag and Williams to kneel on the floor. Armed with the hatchet, appellant approached Freitag and Williams and struck Williams on her head and her spine with the hatchet before she was able to wrest the weapon from him and flee the house. Freitag, whom Williams described as frozen with fear, testified that appellant grabbed him and yanked him down to the floor when Freitag did not obey the order to kneel. Freitag escaped from the house by jumping through a screened window during the struggle between Williams and appellant for control of the hatchet. Both Freitag and Williams
2

testified that appellant was shirtless, and neither of them noticed any wounds on his exposed torso. Police and paramedics who responded to calls for emergency help discovered Cooper's body, and Ms. Williams identified the comforter in which Cooper's body was found as one that was kept in the laundry room. Appellant told police in a recorded interview played for the jury that Cooper attacked him with appellant's ax and that appellant stabbed Cooper several times with a knife and, upon gaining control of the ax, used it to strike Cooper several times. A forensic specialist for the Savannah-Chatham

Metropolitan Police Department testified and surmised, based on the bloodspatter patterns in the house, that the two men fought in the kitchen, where blood from both men was found; that, due to the large amount of blood found under the refrigerator, Cooper was incapacitated near the refrigerator; that, in light of a bloody transfer pattern on a cabinet in the laundry room adjacent to the kitchen, appellant had used a bloodied hand to open the cabinet and retrieve his hatchet which he then used to strike Cooper several times; that, due to bloody drag marks and the saturated blood in the comforter in which appellant was found, that appellant dragged Cooper's body on the comforter to the front porch and there placed the comforter and body under a mattress.
3

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the malice murder of Cooper, the concealment of Cooper's death, the aggravated assaults and false imprisonments of Williams and Freitag, and the possession of a knife during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Appellant argues that his conviction and sentence for the aggravated assault of Cooper should be vacated because the conviction merged as a matter of fact into the conviction for the malice murder of Cooper. The indictment charged appellant with assaulting Cooper with a knife and a hatchet, objects likely to result in serious bodily injury when used offensively against another. The malice murder count of the indictment charged appellant with causing Cooper's death with malice aforethought by use of a knife and a hatchet. As stated earlier, the forensic pathologist found the cause of death to be "multiple sharp force injuries." The State argues the separate conviction for aggravated assault can survive because the forensic pathologist noted that the victim sustained both lethal and non-lethal injuries and the numerous wounds suffered by the victim were not inflicted in quick succession because the blood-spatter
4

evidence established the victim suffered his injuries in several rooms of the house. OCGA

Download S11A1979. ALVELO v. THE STATE.pdf

Georgia Law