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Birdow v. State

Supreme Court of Georgia

February 4, 2019

BIRDOW
v.
THE STATE.

          BETHEL, JUSTICE.

         Mark Birdow appeals from his convictions for malice murder and other crimes in connection with the 2010 death of Angela Woods.[1] He argues that the State failed to produce sufficient evidence at trial to overcome his claim of self-defense, that the trial court erred by excluding the testimony of an expert psychologist Birdow planned to call to testify about his behavior following Woods' death, that the trial court failed to provide him with appropriate technology that would have allowed him to hear the trial proceedings, and that his trial counsel was ineffective in several regards. For the reasons set forth below, we affirm.

         1. Construed in the light most favorable to the verdict, the evidence presented at trial showed that, on July 30, 2010, Angela Woods was reported missing by her family. On August 28, 2010, two teenagers found her dead and decomposing body wrapped in a blanket and lying under a blue plastic container across the street from a Hapeville apartment complex. Her autopsy revealed that the cause of her death was homicide, likely caused by blunt force trauma to the head. The condition of Woods' body when the autopsy was performed was consistent with death occurring around July 30, 2010.

         After Woods' body was discovered, law enforcement officers questioned residents of the apartment complex across the street. The residents who were interviewed reported that Birdow had lived there but had recently moved away. Multiple witnesses recalled that, while Birdow lived in the complex, they smelled a bad odor in the apartment building. One resident also recalled seeing flies gathered near Birdow's bathroom window but noted that the flies were not present once Birdow was no longer living at the apartment. The neighbors and another witness also recalled seeing Birdow with extensive bandaging on both hands and both arms. At that time, Birdow had told one of the neighbors that he had injured his hand by "fooling with a bicycle." He also told a former co-worker whom he encountered that he injured his hands by "cutting some meat with a chainsaw."

         Law enforcement officers obtained a search warrant for Birdow's former apartment. The officers conducting the search located large amounts of blood in various places in the apartment as well as a bloodstain on the exterior door. The officers swabbed several samples of the blood and collected several knives during their search of the apartment.

         The officers then visited Birdow at his mother's home in Atlanta, where he had moved. The officers did not mention that he was a suspect in Woods' death and instead questioned him about the blood they had found in his apartment. At that time, the officers observed that Birdow had thick bandages on both of his hands, which Birdow explained were covering wounds he suffered while trying to cut frozen chicken a month earlier. Birdow had also told his mother that this was how he sustained the wounds to his hands. The officers confirmed that Birdow had called for an ambulance on or about July 31, 2010, and that he was admitted to the hospital for a short time thereafter to treat the wounds to his hands.

         The next day, Birdow went to the police station and admitted that he had lied to the officers about the cause of his injuries. He told the officers that, on the date Woods was killed, he had solicited sex from her. When Birdow and Woods went to his apartment, the victim asked him for a glass of water. Birdow claimed that, when he returned with the water she had requested, she attacked him with a knife-slicing his hands-and tried to rob him. He stated that he then grabbed a metal broom handle and struck her head with it at least twice. She then fell to the bed where he hit her head with the broom handle one additional time and then stabbed her once with a knife. He told police that when he was sure Woods was dead, he placed her in his bathtub, called an ambulance, and went to the hospital so the injuries to his hands could be treated. When he returned from the hospital, he placed Woods' body in a plastic container which he then left across the street from the apartment.

         At trial, the medical examiner testified that Woods suffered ten blunt force injuries to her head, which resulted in multiple skull fractures. She also suffered three sharp force injuries to her torso, likely as the result of stabbing. The medical examiner determined the cause of death to be homicide resulting from multiple head traumas.

         The State also presented testimony from Dr. Pravin Reddy, the plastic and reconstructive surgeon who treated the lacerations to Birdow's fingers on July 31, 2010. Dr. Reddy testified that Birdow's injuries were not characteristic of defensive wounds and that, upon sustaining those injuries, Birdow would have been unable to grip anything. When Dr. Reddy was treating Birdow, Birdow informed him that he had sustained the cuts while cutting a frozen chicken. Dr. Reddy stated that it was "improbable" that Birdow could have suffered those injuries from that act and that such injuries were "incongruous" with what Birdow described.

         Birdow argues that the evidence presented by the State was insufficient to overcome his claim of justification pursuant to OCGA § 16-3-21 (a). We disagree.

         A person is justified in using deadly force only if he "reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . . or to prevent the commission of a forcible felony." OCGA § 16-3-21 (a). When a defendant presents evidence that he was justified in using deadly force, the State bears the burden of disproving the defense beyond a reasonable doubt. Andrews v. State, 267 Ga. 473, 474 (1) (480 S.E.2d 29) (1997). Although statements made by Birdow to law enforcement suggested that he acted in self-defense when he hit and stabbed Woods, evidence presented by the State contradicted this account and called his credibility into question. Because it was for the jury to determine the credibility of witnesses as well as whether the use of deadly force was necessary under the circumstances of the case, the evidence presented by the State was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Birdow did not act in self-defense in attacking Woods. See Russell v. State, 267 Ga. 865, 866 (1) (485 S.E.2d 717) (1997). Moreover, our review of the record shows that the evidence presented by the State was sufficient to authorize the jury to find beyond a reasonable doubt that Birdow was guilty of each 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. Birdow argues that his trial counsel was ineffective for failing to call an expert witness to testify regarding the allegedly defensive nature of the wounds to Birdow's hands. We disagree.

         At the first hearing on Birdow's motion for new trial, Birdow called a hand injury expert, Dr. Burton, to the stand. Dr. Burton testified that in his opinion, the wounds on Birdow's hands "could have been" defensive wounds. He also disagreed with Dr. Reddy's conclusion that the wounds to Birdow's hands did not have the characteristics of defensive wounds. Dr. Burton did state, however, that, once such wounds occurred, Birdow would have been unable to hold anything in the wounded hand.

         At the second hearing on the motion for new trial, Birdow's trial counsel testified that, before trial, she retained Dr. Burton to look into the injuries that Birdow sustained during the altercation to elicit his opinion as to the cause of those injuries, specifically whether the injuries were defensive in nature. Counsel noted that Dr. Burton had not been able to "definitively" state that the wounds were defensive. After interviewing Dr. Reddy before trial, trial counsel determined that the two experts' anticipated testimony was essentially the same-that it was not clear whether the wounds were defensive. Following that interview, trial counsel elected not to call Dr. Burton to testify. At the hearing on the motion for new trial, counsel stated that she believed the jury would be able to understand through ...


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