Preview:

Final Copy 290 Ga. 743 S12A0459. ALLEN v. THE STATE.

THOMPSON, Justice. Appellant Mario Norval Allen was convicted for the malice murder of Kayleigh Henderson and other related crimes and sentenced to life in prison.1 The trial court denied his motion for new trial, and he appeals. For the reasons that follow, we affirm. 1. The jury was authorized to find that on the day of the crimes appellant and the victim, who were romantically involved, argued on the telephone about the need for formula for their young child. The victim drove to appellant's
The crimes occurred on April 28, 2009. Appellant was indicted by an Elbert County grand jury on June 17, 2009, on charges of malice murder, felony murder, aggravated assault, aggravated battery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. After a March 29 - April 2, 2010 jury trial, he was found guilty of all charges. Appellant was sentenced on April 14, 2010, to life in prison on the malice murder count, life in prison for felony murder, 20 years in prison for the aggravated battery count, to run concurrent to the life sentence, 20 years in prison for the aggravated assault count, to run concurrent to the life sentence, five years consecutive for the count of possession of a firearm during the commission of a felony, and five years to run concurrent for the count of possession of a firearm by a convicted felon. Appellant filed a motion for a new trial on April 21, 2010, which he amended on January 27, 2011, March 23, 2011, and May 16, 2011. The trial court denied the motion for new trial on August 15, 2011, and in the same order, the court vacated the sentences imposed on the counts of felony murder, aggravated assault, and aggravated battery. See Gresham v. State, 289 Ga. 103 (6) (709 SE2d 780) (2011); Malcolm v. State, 263 Ga. 369, 373-374 (434 SE2d 479) (1993). Appellant filed a notice of appeal on September 14, 2011. The appeal was docketed to the January 2012 term of this Court and submitted for a decision on the briefs.
1

house to drop off the formula, and when she arrived, appellant shot her in the face at close range. The victim, who later died as a result of the single gunshot to the head, told a hospital nurse she was "shot by her boyfriend, Mario." Appellant, who testified at trial, admitted he shot the victim but claimed she was shot accidentally as he tried to defend himself. He testified the victim arrived at his house with an unidentified man who pushed his way into the home and pointed a gun at him. Appellant claimed he ran outside to retrieve his gun, he and the man started arguing in the front yard, and as the victim and the man backed away, the man pointed a gun. Appellant stated he ducked down and shot, missing the man and shooting the victim instead. Construed in the light most favorable to the verdicts, we find the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although appellant testified he acted in selfdefense, the jury was authorized to disbelieve his testimony and credit the testimony of the State's witnesses. See Delanoval v. State, 280 Ga. 36, 37 (622 SE2d 811) (2005). 2. Appellant contends the trial court erred by admitting his written 2

statement into evidence because it was not given freely and voluntarily.2 See Mincey v. Arizona, 437 U. S. 385, 398 (II) (98 SC 2408, 57 LE2d 290) (1978) (use of involuntary statement in criminal trial is denial of due process). He also contends his subsequent videotaped statement, given several hours later, should have been suppressed as illegal fruit of the first statement. The record reveals, however, that defense counsel affirmatively stated he had no objection to the admission of these statements at trial and he has waived review of this issue on appeal. Starks v. State, 283 Ga. 164 (3) (656 SE2d 518) (2008) (absent objection at trial, defendant will not be heard to complain that his statement should have been suppressed because involuntarily made); Mallory v. State, 230 Ga. 657 (2) (198 SE2d 677) (1973) (defendant will not be heard to complain of admissibility made for first time in appellate court). 3. Appellant asserts the trial court erred by failing to give jury charges on

Evidence from the court's Jackson-Denno hearing established that on the day of the crime, appellant was taken into custody and transported to the police station for questioning. There, he was read his Miranda rights, which he waived verbally and by signing a waiver of rights form. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Appellant did not ask for counsel and agreed to give a statement to investigators. He proceeded to write out a four-page statement in which he admitted, among other things, that he shot the victim. Before giving the statement to investigators, however, he asked to use the restroom. He took his statement with him, and while in the restroom, appellant began tearing it. Officers who were observing appellant seized the written statement, which was introduced at trial.

2

3

transferred justification and transferred intent. He concedes, however, that his counsel did not request either of these charges at trial and did not object to the court's failure to include such charges before the jury retired to deliberate. Accordingly, pursuant to our recent decision in State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011) and OCGA

Download S12A0459. ALLEN v. THE STATE.pdf

Georgia Law