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McKelvin v. State

Supreme Court of Georgia

February 4, 2019


          BENHAM, JUSTICE.

         Appellant Joshua McKelvin was convicted of murdering Marilyn Patterson and assaulting Myra Youngblood, Belinda Hines, and Zeddie Holley. On appeal, Appellant contends that the trial court erred by concluding that the defense of involuntary intoxication necessitated pretrial notice to the State; by requiring him to provide the State with a copy of his pretrial mental evaluation; by refusing to excuse a juror and declare a mistrial; by admitting certain rap lyrics into evidence; and by denying a mistrial after, he says, evidence placed his character at issue.[1] Finding no reversible error, we affirm.

         In June 2013, Appellant and Patterson were staying together in a room at the Ashburn Inn in Turner County, Georgia, and found work at a nearby watermelon farm. On the day in question, Appellant became frustrated with the pace of work on his watermelon-packing line and hit Youngblood with a watermelon; a verbal altercation ensued between Appellant and Youngblood's fiancé, but it was settled without escalation. Later that evening at the motel - where other workers from the watermelon farm were also staying - Appellant tried to reignite the feud, but he was ignored. That same night, Patterson announced that she was checking out of the motel, taking the refund from her pre-payment of the room, and heading home.

         In preparation for leaving, Patterson returned to her room, and, shortly thereafter, called the front desk asking for help; the clerk then heard at least three gunshots and gasps from Patterson. Holley, who was also staying at the motel and was acquainted with Appellant, heard the gunshots and observed Appellant leave Patterson's motel room with something silver in his hand; Appellant then aimed the firearm at Holley and fired three times. Appellant then shot both Youngblood and another co-worker, Hines, before fleeing the scene. Appellant later contacted law enforcement to turn himself in and was taken to the hospital as a precaution. Numerous witnesses identified Appellant as the shooter. At trial, Appellant admitted that he was the shooter, but claimed that he had no recollection of the events after having had two sips of an odd-tasting beer.

         1. Though not raised by Appellant as error, in accordance with this Court's standard practice in appeals of murder cases, we have reviewed the record and find that the evidence, as stated above, 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 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. In July 2013, the defense moved the trial court for a psychiatric evaluation to explore Appellant's fitness to stand trial, as well as to assess his mental condition at the time of the crime; this motion was served on the State. The order granting the motion - which was drafted by the defense - was also provided to the State, and the order dictated that the State was to receive a copy of the evaluation. During the subsequent evaluation, Appellant reported that, on the evening in question, he had been given a beer with an "odd" taste to it and that he had an "incomplete memory" of subsequent events. The evaluating psychologist opined in his report that Appellant was competent to stand trial, that there was insufficient evidence to suggest that Appellant could not appreciate right from wrong at the time of the shootings, that Appellant's actions were not the product of a delusional compulsion, and that there was no apparent evidence of involuntary intoxication or misapprehension of fact. Despite the trial court's original order, the psychologist's report was apparently filed under seal and provided to defense counsel, but it was not immediately provided to the State.

         Months later, the defense produced a witness list that included medical personnel who had treated Appellant on the night in question. The State - apparently concerned with a possible insanity defense - moved the trial court to compel Appellant to turn over the report and provide written notice of "any mental defect or condition that would bear upon his competency to stand trial or his lack of criminal responsibility for his actions." Following an ex parte hearing with the defense - during which the defense affirmed its intention to pursue the theory of involuntary intoxication - the trial court granted the State's motion, concluding that, under Uniform Superior Court Rule 31.5, the defense was required to give notice of its intent to pursue involuntary intoxication and turn over the report. Following the trial court's ruling, the defense retained an expert witness, who testified at trial in support of Appellant's theory of involuntary intoxication.

         On appeal, Appellant contends that it was error to require him to give notice of his defense and turn over the psychologist's report to the State.

         (a) Appellant first contends that the trial court erred in concluding that, under Rule 31.5, the defense was required to provide written, pre-trial notice of its intent to pursue a theory of involuntary intoxication. We disagree.

         Rule 31.5 requires written, pre-trial notice to the State where an accused intends "to raise the issue that [he] was insane, mentally ill or mentally retarded at the time of the act or acts charged against the accused." Though involuntary intoxication is not specifically referenced in the rule, that defense "is one involving issues of mental competence, in effect, temporary insanity." Crossley v. State, 261 Ga.App. 250, 251 (582 S.E.2d 204) (2003). Indeed, the involuntary intoxication statute, OCGA § 16-3-4 (a), tracks the language of the insanity statute, providing that involuntary intoxication is only a defense where an accused can demonstrate that he "did not have sufficient mental capacity to distinguish between right and wrong in relation to such act." Compare OCGA § 16-3-2 ("A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence." (Emphasis supplied.)). Georgia courts have understood for decades that the defense of involuntary intoxication is coextensive with the defense of insanity, recognizing that "[t]he law of intoxication contained in OCGA § 16-3-4 must be read in light of OCGA § 16-3-2." Foster v. State, 258 Ga. 736, 743-744 (374 S.E.2d 188) (1988). See also Carter v. State, 248 Ga.App. 139 (2) (546 S.E.2d 5) (2001) (discussing the relationship between involuntary intoxication and insanity); Rauschenberg v. State, 161 Ga.App. 331, 331 (291 S.E.2d 58) (1982) (recognizing that, "Georgia law presumes the sanity of a defendant" and that the defense of involuntary intoxication requires an accused to "establish he did not have sufficient mental capacity to distinguish between right and wrong in relation to such act").[2]Accordingly, though involuntary intoxication is not specifically referenced in Rule 31.5, the trial court correctly concluded that pre-trial notice of that defense is required since it is a subset of an insanity defense.

         (b) Appellant further asserts that he was not required to give pre-trial notice of his intent to pursue involuntary intoxication because he sought to present the defense solely through lay witnesses. While Appellant is correct that, under the version of Rule 31.5 in effect at the time of trial, [3] there was no pre-trial notice requirement where an insanity-type defense was to be pursued exclusively through lay witnesses, see Abernathy v. State, 265 Ga. 754, 755 (462 S.E.2d 615) (1995), the trial court clearly concluded - and the record supports - that Appellant's defense depended on more than lay-witness testimony. As his witness list indicated, Appellant intended to call emergency medical technicians and an emergency-department physician who treated Appellant on the night of his arrest. At the ex parte hearing on the State's motion to compel, the defense acknowledged that it would seek to elicit testimony from the those medical personnel regarding their observations and treatments of the defendant on the night in question. That, alone, could constitute lay-witness testimony. See United States v. Henderson, 409 F.3d 1293, 1300 (3) (11th Cir. 2005) (recognizing that "[a] treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party." (Quotation marks and citations omitted.)).[4] However, the defense also sought to explore other avenues of testimony, namely the results and implications of Appellant's drug and alcohol tests on the night in question, both of which were negative.

         The transcript from the hearing reflects that trial counsel explained that he planned to ask "the doctor about the drug test, what it did test for and what it did not test for to show there are certainly other types of drugs that are out there that were not tested for. Certainly, there could have been one that he was under the influence of." Thus, the anticipated purpose of the physician's testimony was not in simply reporting that the drug and alcohol screen was negative - indeed, that would have been of no benefit to the defense - but in exploring what testing the physician ordered, what substances he did not test for, and whether Appellant could have been on those substances. Such testimony and inferences by the physician require scientific or specialized knowledge, see OCGA § 24-7-701 (a) (3), and veer into the realm of expert-witness testimony, see Henderson, 409 F.3d at 1300 (noting that "the ability to answer hypothetical questions is the essential difference between expert and lay witnesses" (Quotation marks and punctuation omitted.)). As such, Appellant was not, as he suggested, supporting his defense solely with lay-witness testimony. Accordingly, the trial court did not err when it decided that, under Rule 31.5, Appellant was required to provide written, pre-trial notice of his intention to pursue the defense of involuntary intoxication.

         (c) Appellant also contends, relying on Neuman v. State, 297 Ga. 501 (773 S.E.2d 716) (2015), that the trial court erroneously required him to turn over the psychologist's report to the State. There is no error.

         In Neuman, the trial court required the defendant to turn over records from two psychologists, who had been retained by trial counsel for the purpose of exploring an insanity defense, even though those experts would have neither testified at trial nor contributed to the opinion of the expert who would ultimately testify. 297 Ga. at 505-506. This Court reversed, concluding that "the attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation" and, further, that the privilege remains intact so long as ...

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