Justice Nahmias Questions Court's Precedent that Sets Aside Mutually Exclusive Criminal Verdicts
Justice joins high court decision tossing murder conviction, but questions precedent
Georgia Supreme Court Justice David Nahmias once again is questioning the court's prior case law. This time, he expressed misgivings about precedents that set out when criminal verdicts are so logically inconsistent as to be void.
Nahmias joined the court's unanimous Nov. 25 decision to grant a new trial to a man who was convicted by a DeKalb County jury of murdering his wife. Last week, Nahmias added his own opinion, saying that, when the right case came along, the court should re-examine its precedents on the subject of mutually exclusive verdicts.
According to the Supreme Court opinion, evidence in the DeKalb case showed that in January 2010 Dennis Allaben killed his wife, then rolled up her body in blankets and placed it in the back of his pickup truck. After driving his two young children to his brother's house in Virginia, Allaben returned with his wife's body to Atlanta, where he surrendered to a police officer known to a friend.
Allaben told the friend and his sister-in-law that he didn't mean to kill his wife but merely to sedate her so that he could tie her up and talk to her about some strange behavior he perceived on her part, such as adulterating his food. A cloth soaked in ether that he held to her face went too far down her throat, choking her, Allaben said.
The medical examiner testified, however, that Allaben's wife was placed in a choke hold and strangled to death. The medical examiner testified there was no evidence of a rag on or in her body.
After a 2011 trial before DeKalb County Superior Court Judge Linda Hunter, a jury found Allaben not guilty of involuntary manslaughter but guilty of other offenses, including malice murder, aggravated assault with intent to murder, battery and reckless conduct. Hunter sentenced Allaben to life in prison.
On appeal, Allaben sought reversal of the murder charge, pointing to testimony given by the medical examiner at a post-trial hearing the defense said supported its theory of an accidental killing. Allaben also contended that the guilty verdict on the reckless conduct charge was mutually exclusive of the remaining verdicts and thus all of the verdicts were void. By a unanimous 7-0 vote, the Georgia Supreme Court agreed in a Nov. 25 opinion by Justice Carol Hunstein that the verdicts were mutually exclusive.
Drawing on the state high court's decisions in Jackson v. State, 276 Ga. 408, decided in 2003, and Walker v. State, No. S13A0861, decided in October, Hunstein explained that two guilty verdicts are mutually exclusive when a guilty verdict on one count is logically inconsistent with a finding of guilt on the other count. Specifically, she said, verdicts are mutually exclusive when a jury returns verdicts of guilt as to both a "criminal intent" offense and a "criminal negligence" offense if the offenses involve the same act by the accused as to the same victim at the same point in time.
Hunstein wrote that the verdicts finding Allaben guilty of malice murder and reckless conduct were mutually exclusive because the jury found that Allaben acted with criminal negligence in strangling his wife when it returned its guilty verdict on reckless conduct, while the malice murder guilty verdict required a finding that the defendant acted with an intent to kill. She wrote that because the other guilty verdicts also required a finding of intent to kill or intent to cause substantial physical harm or visible bodily harm, those verdicts also were mutually exclusive with the reckless conduct offense and therefore must be set aside.
Hunstein's opinion rejected the state's contentions that the verdicts shouldn't be set aside, including the state's argument that the jury's verdict of not guilty on the lesser included offense of involuntary manslaughter showed that the jury found that Allaben did not act with recklessness when he killed his wife. Hunstein wrote that the court would not speculate why a jury acquitted on one offense and convicted on another, as the jury's verdicts could be based on error, compromise or lenience.