295 Ga. 96
FINAL COPY



                      S14A0235. THOMPSON v. THE STATE.


       NAHMIAS, Justice.

       Appellant Rodney Thompson was convicted of the felony murder of his

mother, Marjorie Lynch. On appeal, he contends that the evidence presented at

trial was insufficient to support his conviction and that the trial court erred in

excluding expert evidence regarding his low IQ and in admitting evidence of his

prior difficulties with the victim and of certain statements he made while in

police custody. As explained below, we find no merit to these contentions, and

we therefore affirm.1

       1.      (a)     Viewed in the light most favorable to the verdict, the evidence

presented at trial showed the following. Appellant, who was then 39 years old,



       1
          The victim was killed on June 5, 2008. On August 12, 2008, Appellant was indicted on
charges of malice murder, felony murder, and aggravated assault. After trial on August 17-20, 2009,
the jury found Appellant not guilty of malice murder but guilty of the other two charges. The trial
court sentenced him to serve life in prison for felony murder; the aggravated assault verdict merged
into that conviction. Appellant filed a motion for a new trial on September 16, 2009, which the trial
court denied on February 15, 2013. Appellant filed a timely notice of appeal to the Court of Appeals,
which properly transferred the appeal to this Court on October 8, 2013. The case was docketed here
for the January 2014 term and submitted for decision on the briefs.
was living with Ms. Lynch and other family members in Barrow County. About

a week before she was killed, Ms. Lynch told Appellant that if he did not start

helping with the household bills, he would have to move out.

      On the morning of June 5, 2008, Ms. Lynch called 911 and said that her

son had just stabbed her in the back and run out of the house. Sheriff’s deputies

arrived at the house five minutes later, finding Appellant on the porch smoking

a cigarette. When they asked who he was, Appellant said “I’m her son” and

motioned toward the house. When the deputies asked if Appellant had stabbed

his mother, he first said no, but when asked again, he said that he had; he was

then handcuffed and put in a police car.

      Inside the house, the deputies found Ms. Lynch lying on the floor of her

bedroom with a crossbow bolt sticking out of her back. She was still alive, and

she told one of the deputies that she had been asleep when she was shot. She

also told a paramedic who arrived at the scene that “he shot me.” Ms. Lynch

was taken to a hospital, where she died on the operating table. The cause of

death was a crossbow bolt wound to the back. The bolt that killed Ms. Lynch

had a “field tip,” which is fairly blunt and generally used for practice, rather than

a “broad tip,” which is used for hunting.

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      When investigators searched Appellant’s bedroom, they found a crossbow

and a bolt; the crossbow was in “fire” mode. A sales associate from the Bass

Pro Shop testified at trial that Appellant had purchased the crossbow two weeks

to two months before he killed his mother. The associate explained that he

generally would explain to customers how to use the crossbow and that

customers could also get demonstrations of how to use the crossbow at an in-

store archery range. The associate had examined Appellant’s crossbow and

found that it took 150 pounds of force to cock the bow. He explained that to

make the crossbow fire, it had to be manually switched to fire mode, because it

could not be cocked while in safe mode. Although the associate acknowledged

that crossbows can malfunction, he tested the safety mechanism of Appellant’s

crossbow and was unable to shoot the bow when it was in safe mode, even when

he tried to make it malfunction.

      Appellant was taken from the house to the sheriff’s office, where he was

interviewed after waiving his rights under Miranda v. Arizona, 384 U. S. 436

(86 SCt 1602, 16 LE2d 694) (1966). Appellant claimed that he had gone up to

his mother’s room to show her his crossbow, even though she was asleep, and

when he walked in, the crossbow, which was loaded, accidentally went off and

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the bolt hit her in the back. He said that this was the first time he had ever used

the crossbow, which he bought to use for hunting (although he later admitted

that he did not have a hunting license). Appellant admitted that his mother

sometimes asked him to pay rent, which made him mad, but he claimed that he

was not mad at her at the time of the incident. When asked why he did not help

his mother after shooting her, Appellant said that he had heard her calling 911,

so he went outside to smoke a cigarette.

      After the interview ended, Appellant was moved to a conference room,

where he was guarded by Investigator Matt Guthas. Although Guthas did not

question him, Appellant began talking. Guthas testified at trial that Appellant

said: “got into this thing with my mom this morning”; “gun”; “shot her in the

back”; “good thing it wasn’t steel”; and “not bad.” At trial the State also

presented evidence that in 1994, Appellant had pled guilty in New Jersey to

threatening to kill his mother.

      (b)   Appellant contends that the evidence pointed to an accidental

shooting and thus was legally insufficient to support his conviction. However,

“‘[i]t was for the jury to determine the credibility of the witnesses and to resolve

any conflicts or inconsistencies in the evidence.’” Vega v. State, 285 Ga. 32, 33

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(673 SE2d 223) (2009) (citation omitted). When viewed in the light most

favorable to the verdict, the evidence presented at trial and summarized above

was sufficient to authorize a rational jury to reject Appellant’s accident defense

and find him guilty beyond a reasonable doubt of felony murder based on

aggravated assault. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781,

61 LE2d 560) (1979); Smith v. State, 292 Ga. 620, 621 (740 SE2d 158) (2013);

Brown v. State, 292 Ga. 454, 456 (738 SE2d 591) (2013).

      2.    The trial court ruled that Appellant would not be permitted to

introduce expert testimony that he has an IQ of 67, which, his counsel argued,

was relevant to his defense that the shooting was accidental because his mental

disability prevented him from understanding how to use the crossbow properly.

Appellant enumerates error in this ruling, but the trial court decided the issue in

accordance with settled Georgia law.

      Evidence of a criminal defendant’s mental disability may be presented in

support of a defense of insanity or delusional compulsion (see OCGA §§ 16-3-2

and 16-3-3); a claim of incompetency to stand trial (see OCGA § 17-7-130); or,

since such pleas were authorized, a plea of guilty but mentally ill or guilty but

mentally retarded (see OCGA § 17-7-131) — none of which Appellant raised

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in this case.2 For more than 150 years, however, this Court has consistently

upheld the exclusion of evidence of a defendant’s diminished mental condition

when offered to support other defenses or to negate the intent element of a

crime. See, e.g., State v. Abernathy, 289 Ga. 603, 607-608 (715 SE2d 48)

(2011) (‘“[M]ental abnormality, unless it amounts to insanity, is not a defense

to a crime.’”) (quoting Wallace v. State, 248 Ga. 255, 262 (282 SE2d 325)

(1981)); Paul v. State, 274 Ga. 601, 603 (555 SE2d 716) (2001) (rejecting the

defendant’s argument that “he was entitled to introduce expert evidence of his

mental impairment tending to show his lack of intent to kill,” because “the

expert evidence was irrelevant to the state of mind necessary to determine guilt

in light of the defendant’s refusal to assert an insanity defense or that he was

mentally ill at the time of the conduct in question”); Selman v. State, 267 Ga.

198, 200 (475 SE2d 892) (1996) (same); Reece v. State, 212 Ga. 609, 609-610

(94 SE2d 723) (1956) (“Weak-mindedness alone is no defense to crime. The


       2
          In addition, OCGA § 16-3-21 (d) (2), which was enacted in 1993, authorizes relevant
expert testimony regarding the defendant’s condition of mind at the time of the offense, including
relevant facts and circumstances relating to the family violence or child abuse that are the bases of
the expert’s opinion, to support a justification defense in a prosecution for murder or manslaughter.
See also Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (holding that expert testimony in
support of a justification defense based on battered spouse syndrome would not be an improper
opinion on an “ultimate fact”).

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evidence in the record that the defendant had the mentality of a child nine or ten

years old does not relieve him from responsibility for crime.” (citation omitted));

McKethan v. State, 201 Ga. 23, 38 (39 SE2d 15) (1946) (“That the accused,

though able to distinguish between right and wrong, might be unable to evaluate

the quality and consequences of his act to the same degree as a normal or

average individual, is no defense.”); Goosby v. State, 153 Ga. 496 [1] (112 SE

467) (1922) (holding that the trial court did not err in prohibiting a witness from

testifying that the defendant was “weak-minded,” because “the answer would

have been immaterial, as weakness of mind would not have constituted a

defense nor excused the crime”); Rogers v. State, 128 Ga. 67, 68 (57 SE 227)

(1907) (affirming the exclusion of evidence that “the defendant, from the time

of his childhood, had been of feeble intellect and weak intelligence,” because the

defense was not that he “was either an idiot or an insane person, or that he

labored, at the time of the homicide, under any form of delusional insanity”);

Studstill v. State, 7 Ga. 2, 3 [6] (1849) (“It is not competent to prove that the

defendant is of weak mind, where it is admitted that he is neither idiot, lunatic

nor insane.”), overruled on other grounds in Armistead v. State, 18 Ga. 704, 707



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(1855).3 See also Bryant v. State, 271 Ga. 99, 101 (515 SE2d 836) (1999)

(affirming the exclusion of expert testimony that the defendant suffered from

post-traumatic stress disorder stemming from childhood sexual abuse because

that mental state was “not relevant to Bryant’s defense of accident” in shooting

the victim).

       It should be noted that Georgia takes a more restrictive position on this

issue than many other jurisdictions, where the admission of evidence relating to

a defendant’s deficient mental condition to support defenses other than those

based on diminished mental capacity or to negate a required element of a crime

has been authorized by statute or judicial decision in at least some

circumstances. See generally Paul H. Robinson et al., Criminal Law Defenses,

Vol. 1, § 64 (a) (2013). Georgia, however, is not such a jurisdiction, and if the

law established by our longstanding precedent is to change, it would be better

done as a matter of public policy legislated by the General Assembly.

       3.      Appellant next contends that the trial court erred when it admitted,

as evidence of prior difficulties between him and his mother, records showing


       3
          We recognize that the descriptions of mental-condition defenses in these older cases may
be jarring to modern ears.

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that he had previously threatened to kill his mother. We disagree.

      After voir dire, the trial court addressed the State’s request to present

evidence that Appellant had pled guilty in New Jersey in 1994 to making

terroristic threats against his mother; the proffered evidence was certified

records including a police report, copies of which had been provided to

Appellant’s counsel in pre-trial discovery. At that point, the court ruled that the

evidence would be admissible, but during trial, the court decided to exclude the

evidence on the ground that the officer who had written the police report was

not available to testify and the other records did not appear to be of the type

required to prove a conviction.

      Subsequently, on the second day of trial, the State had the district

attorney’s office in New Jersey send by fax and overnight delivery certified

copies of Appellant’s 1994 accusation, guilty plea form, conviction, and

sentence. The prosecutor showed the faxed documents to Appellant’s counsel

that day; the next day, after receiving the overnight delivery, the State advised

the court of the newly obtained records and moved for their admission into

evidence to prove prior difficulties between Appellant and the victim. The trial

court admitted the certified records over Appellant’s objection that the State had

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not provided him the documents ten days before trial as required by OCGA §

17-16-4 and that the prior difficulties occurred too long ago to be admissible.

He raises those two arguments again on appeal.4

       (a)     Under OCGA § 17-16-4 (a) (3) (A), the prosecuting attorney

generally must allow the defendant to inspect and copy, no later than ten days

prior to trial, all documents that the State has within its possession, custody, or

control and intends to use as evidence at trial in its case-in-chief or in rebuttal.

Even assuming the State did not meet that requirement with respect to the

records actually admitted to show the prior difficulties, the failure to comply

with OCGA § 17-16-4 does not automatically result in exclusion of the

documents at issue. Instead, the State may be prohibited from introducing

evidence that was not timely disclosed only upon a showing of both prejudice

to the defendant and bad faith by the State. See OCGA § 17-16-6; Bryant v.



       4
          Appellant also argues on appeal that the admission of these documents violated his rights
under the Confrontation Clause, see U. S. Const. amend. VI, but he did not preserve that argument
for appellate review. During the discussion of the documents that the State initially proffered to
prove the prior difficulties, Appellant expressed concern that there would be no witness to cross-
examine about the documents. However, when the State offered the certified records that were
actually admitted into evidence, Appellant made no mention of his right to confrontation and instead
made clear that his objections were based on OCGA § 17-16-4 and the lapse of time between the
New Jersey conviction and his mother’s death. Accordingly, Appellant waived review of any
Confrontation Clause claim. See Sanders v. State, 290 Ga. 445, 448 (721 SE2d 834) (2012).

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State, 288 Ga. 876, 888-889 (708 SE2d 362) (2011).

      Here, although the State did not provide Appellant with timely notice of

the particular certified records that were ultimately admitted, he was aware in

advance of trial of the prior difficulties that the State intended to present because

the State had provided him in timely fashion with the documents that it

originally planned to use to prove the 1994 terroristic threats. Thus, Appellant

has not shown any real prejudice from receiving the certified records on the day

before they were admitted, nor has he demonstrated any bad faith by the State.

We also note that Appellant did not request any of the lesser remedies, such as

a continuance, available to address discovery violations. See OCGA § 17-16-6.

Accordingly, the trial court did not abuse its discretion in declining to exclude

the prior difficulties evidence on this ground. See Bryant, 288 Ga. at 889.

      (b)    Appellant also contends that the prior difficulties evidence should

have been excluded because the New Jersey incident occurred more than 14

years before the crimes charged in this case. Evidence of prior difficulties is

admissible because “the defendant’s prior acts toward the victim, be it a prior

assault, a quarrel, or a threat, . . . are evidence of the relationship between the

victim and the defendant and may show the defendant’s motive, intent, and bent

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of mind in committing the act against the victim which results in the charges for

which the defendant is being prosecuted.” Wall v. State, 269 Ga. 506, 509 (500

SE2d 904) (1998).5 We have explained that remoteness in time between the

prior conflict and the crime now charged does not render such evidence

irrelevant; instead, “the lapse in time between prior acts and the crime at issue

bears on [the prior difficulties’] weight and credibility rather than its

admissibility.” Faircloth v. State, 293 Ga. 134, 137 (744 SE2d 52) (2013).

       In this case, the evidence of Appellant’s prior terroristic threats against his

mother was relevant to show his motive, intent, and bent of mind when he shot

his mother in the back with a crossbow, and to disprove his defense that it was

an accident. That 14 years passed between the incidents was a fact for the jury

to consider. See Rowe v. State, 276 Ga. 800, 806 (582 SE2d 119) (2003)

(upholding the admission of testimony that the defendant had fought with and

hit his wife 10 to 12 years before he shot her to death and claimed that the

shooting was unintentional). In sum, the trial court did not abuse its discretion

in admitting the evidence of Appellant’s prior difficulties with the victim.

       5
         This case was tried under Georgia’s old Evidence Code. Under the new Evidence Code,
which applies to trials beginning on or after January 1, 2013, the admissibility of this sort of
“[e]vidence of other crimes, wrongs, or acts” is governed by OCGA § 24-4-404 (b).

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       4.      About 40 minutes into his interview at the sheriff’s office, Appellant

said, “I’m not going to say anything . . . . I told you everything already.” The

investigators, however, continued to question Appellant. Conceding that

Appellant could be deemed to have invoked his right to remain silent, which

could make his statements during the remainder of the interview inadmissible

under Miranda, the State elected not to try to present that portion of the

interview at trial.6 The State did, however, present Investigator Guthas’s

testimony about what Appellant said in the conference room to which he was

moved when the interview ended. Appellant contends that the trial court erred

in admitting those statements, asserting that the violation of Miranda during the

interview tainted the statements later heard by Guthas and that the statements

were induced by the investigator’s presence in the conference room.

       In Rhode Island v. Innis, 446 U. S. 291 (100 SCt 1682, 64 LE2d 297)

(1980), the United States Supreme Court explained that “the Miranda safeguards


       6
          Because of this decision by the State, the trial court did not rule on whether Appellant’s
Miranda rights had been violated during the interview. We need not address that issue either,
because this enumeration of error fails even on the assumption that a Miranda violation occurred
during the interview. It should be noted, however, that there is no indication – and Appellant
obtained no ruling below – that whatever questioning occurred after Appellant indicated that he did
not want to say anything more rendered his subsequent statements during the interview coerced and
involuntary.

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come into play whenever a person in custody is subjected to either express

questioning or its functional equivalent,” meaning “[a] practice that the police

should know is reasonably likely to evoke an incriminating response from a

suspect.” Id. at 300-301. This Court has explained the principle as follows:

      When a defendant makes a voluntary statement without being
      questioned or pressured by an interrogator, the statement is
      admissible even in the absence of Miranda warnings; a defendant’s
      voluntary and spontaneous outburst not made in response to
      custodial questioning or interrogation is admissible at trial. Indeed,
      law enforcement officers do not have a duty to prevent a defendant
      from talking about the criminal incident if the defendant wishes to
      do so; they must not interrogate but they need not refuse to listen.

Velazquez v. State, 282 Ga. 871, 877-878 (655 SE2d 806) (2008) (citation

omitted). Whether a statement was the result of interrogation or was instead

volunteered is a question of fact for the trial court, and the court’s ruling will not

be disturbed on appeal unless it is clearly erroneous. See id. at 877.

      After conducting a hearing pursuant to Jackson v. Denno, 378 U. S. 368

(84 SCt 1774, 12 LE2d 908) (1964), the trial court in this case found that

Appellant’s statements heard by Investigator Guthas were voluntary and not the

product of interrogation, and the record fully supports that finding. Guthas

testified that he did not discuss the case when he was guarding Appellant and


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did not even ask follow-up questions after Appellant began talking. Guthas’s

mere presence as a guard in the conference room where Appellant was detained

temporarily after he may have been improperly questioned by other officers in

another room was not coercive and did not evoke Appellant’s statements about

the crimes.

      [T]he controlling case law excludes from the “functional
      equivalent” of interrogation those police statements and actions
      normally attendant to arrest and custody. After a suspect invokes
      his rights, the police may be in a situation where they choose to, and
      appropriately and safely can, leave the suspect, but in other
      situations the police may need to transport the suspect from the
      crime or arrest scene to a detention center, or from an interrogation
      room to a detention center, or arrange for the suspect to contact his
      lawyer or family, or deal with other logistical issues.

State v. Brown, 287 Ga. 473, 479 (697 SE2d 192) (2010) (citation and

punctuation omitted). Accordingly, the trial court did not err in admitting

Investigator Guthas’s testimony about Appellant’s statements.

      Judgment affirmed. All the Justices concur, except Melton, J., who

concurs in judgment only as to Division 2.




      BENHAM, Justice, concurring.


                                       15
      I concur fully in the opinion as it is an accurate interpretation of the

current state of the law. I write only to expound on the reference in Division 2

concerning persons with diminished capacities which notes that any change in

the treatment of such persons in the criminal context is a matter of public policy

for the legislature to determine. In Georgia, a person charged with a felony may

be found guilty but mentally retarded and as such may be temporarily

hospitalized (OCGA § 17-7-131), but is otherwise treated as any other criminal

defendant. The Supreme Court of the United States has already determined that

offenders with intellectual disabilities (or, in more dated vernacular, the

“mentally retarded”) have less culpability than average criminals. Atkins v.

Virginia, 536 U. S. 304, 316-320 (122 SCt 2242, 153 LE2d 335) (2002)

(ultimately holding that mentally retarded offenders are not subject to the death

penalty). See also Nevins-Saunders, Elizabeth, Not Guilty as Charged: The

Myth of Mens Rea for Defendants with Mental Retardation, 45 U.C. Davis L.

Rev. 1419 (2012). It is therefore not a stretch to conclude that a more balanced

approach to dealing with offenders with intellectual disabilities in the criminal

justice system is warranted in today’s society. As Georgia moves forward with

various criminal justice reforms, the General Assembly should consider
expanding its treatment of offenders with intellectual disabilities and look for

ways to reform substantive laws, evidentiary rules, affirmative defenses,

sentencing, and punishment for offenders with intellectual disabilities in light

of the fact that they may be less culpable for their actions than others without

such disabilities.

      I am authorized to state that Justice Hunstein joins in this concurrence.



                           Decided April 22, 2014,

      Murder. Barrow Superior Court. Before Judge Motes.

      Kathleen J. Anderson, for appellant.

      J. Bradley Smith, District Attorney, Samuel E. Skelton, Deborah S.

Wilbanks, Assistant District Attorneys, Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Katherine L. Iannuzzi, Assistant Attorney General,

for appellee.




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