FINAL COPY
294 Ga. 392


                        S13A1445. CURRIER v. THE STATE.


       BENHAM, Justice.
       Appellant Shawn Hollis Currier seeks appellate review of his convictions

for felony murder and related crimes stemming from the death of David

Buriles.1 For the reasons set forth below, we affirm.

       1. Appellant alleges the evidence at trial was insufficient to support his

convictions.

       The relevant inquiry on appeal challenging the sufficiency of the

       evidence is whether the evidence, viewed in a light most favorable

       to the verdict, would authorize a rational trier of fact to find


       1
         The crimes occurred on December 21, 2006. On June 6, 2007, the Oglethorpe County grand
jury returned a true bill of indictment charging appellant and his co-defendant Jasmine Jermine
Hillsman with malice murder, felony murder, aggravated assault, concealing the death of another,
and theft by taking of a motor vehicle. Appellant and the co-defendant were tried before a jury from
September 22 to September 26, 2008. The trial court directed a verdict of acquittal on the charge
of malice murder. The jury found appellant guilty of all remaining charges and found Hillsman
guilty only of aggravated assault. The trial court sentenced appellant to life in prison for felony
murder, ten years to serve consecutively for concealing the death of another, and ten years to serve
concurrently for theft of a motor vehicle. The charge of aggravated assault merged with the count
of felony murder. Appellant filed a motion for new trial on October 8, 2008, and an amended motion
on December 29, 2012. The trial court held a motion for new trial hearing on January 9, 2013, and
denied the motion on March 18, 2013. Appellant timely filed a notice of appeal on April 1, 2013.
The case was docketed to the September 2013 term of this Court and was orally argued on
September 9, 2013.
      appellant guilty beyond a reasonable doubt of the crimes for which

      [he] is charged. Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt

      2781, 61 LE2d 560) (1979); Cutrer v. State, 287 Ga. 272, 274 (695

      SE2d 597) (2010).

Lowe v. State, 288 Ga. 662 (1) (706 SE2d 449) (2011). Here, the evidence

viewed in a light most favorable to the verdict shows that about a week prior to

the incident, appellant and his co-defendant Jasmine Jermine Hillsman were

overheard by the co-defendant’s brother Kendrick Hillsman (Kendrick) talking

about the victim and saying “something bad might happen” if “people” did not

keep their mouths closed. On December 21, 2006, the victim, appellant, the co-

defendant, and Kendrick were at appellant’s trailer home talking and drinking

alcohol. At trial, Kendrick testified the victim hit appellant and, in response,

appellant put the victim in a “full Nelson” wrestling hold, keeping the victim in

place while the co-defendant punched the victim in the face. Kendrick says he

yelled at appellant to break the fight up and, when appellant did not do so, he

left the trailer because he thought the fight was “too rough.” When Kendrick

returned about twenty minutes later, the co-defendant was standing outside the

trailer, appellant was gone, and the victim was inside the trailer lying

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unconscious on the floor with blood coming out of his nose. The co-defendant’s

written statement to police, which was admitted into evidence at trial and read

aloud to the jury, confirmed that appellant and the co-defendant fought with the

victim and that a punch co-defendant landed to the victim’s nose caused the

victim to pass out. Two female acquaintances of the Hillsman brothers arrived

at appellant’s trailer. One of the women requested that the victim be sat upright.

When Kendrick and the co-defendant sat the victim upright, the woman testified

that she listened to the victim’s chest and noted that he was breathing, although

she heard a rattle in his chest. She stated the victim was also making noises and

mumbling. Deciding the victim did not need medical attention, Kendrick, the

co-defendant, and the two women left the trailer. Later on, appellant called the

co-defendant and told him the victim was dead. Appellant’s neighbor testified

that appellant called and asked him to come over. When the neighbor arrived,

appellant told him he had killed the victim, showed him the victim’s body, asked

him what should be done with the body, and the neighbor told appellant to call

the police. Appellant then asked the neighbor to help him dispose of the body.

The neighbor declined and, as he was leaving, again told appellant to call the

police. Rather than contact the authorities, appellant dumped the victim’s body

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into a well and had the victim’s car towed to a junk yard where he sold it for

scrap. A few days later, appellant told the neighbor what he had done with the

body and the car.

       The victim’s family reported him missing on December 24, 2006. When

one of the women who had been at the trailer on the night of the fight saw the

victim’s missing person poster, she came forward with the information which

eventually led to the arrests of appellant and his co-defendant. Authorities

found the victim’s blood on carpet samples taken from appellant’s trailer. When

questioned by a sheriff, appellant initially denied knowing anything about the

victim’s whereabouts, but he eventually admitted to disposing of the body.

Authorities recovered the body on January 21, 2007. The medical examiner

testified that the victim’s body was too decomposed to determine the actual

manner of death,2 but he concluded the official cause of death was “homicidal

violence of undetermined etiology.” He noted the victim had a broken nose

which was consistent with blunt force trauma, but he said that such injury was

not life threatening.


       2
        For example, the victim’s brain was in a liquefied state, precluding the medical examiner
from being able to examine it for any signs of blunt force trauma.

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       Appellant argues that because the medical examiner could not specifically

identify the cause of the victim’s death and because the medical examiner stated

the victim’s broken nose was not a fatal injury, the State failed to show that the

aggravated assault underlying the felony murder charge3 caused the victim’s

death and the evidence is therefore insufficient to sustain his conviction of

felony murder. We disagree. When construing Georgia’s felony murder

statute,4 this Court has held that causing the death of another human being

means proximate causation. State v. Jackson, 287 Ga. 646 (2) (697 SE2d 757)

(2010). “Proximate causation imposes liability for the reasonably foreseeable

results of criminal . . . conduct if there is no sufficient, independent, and

unforeseen intervening cause.” Id. at 654. We consider the elements of the

felony not in the abstract, but in the actual circumstances in which the felony

was committed. Davis v. State, 290 Ga. 757, 760 (4) (725 SE2d 280) (2012).

Here it was reasonable to foresee that the victim could be fatally wounded upon

       3
          In the indictment, the charge on felony murder reads as follows: “. . . defendants . . . did
unlawfully while in the commission of a felony, to wit: aggravated assault, did cause the death of
[the victim] by using their hands and fist[s] as a deadly weapon bludgeoning said victim with hands
and fist[s]. . . .”
       4
          OCGA § 16-5-1 (c) provides in pertinent part: “[a] person also commits the offense of
murder when, in the commission of a felony, he causes the death of another human being,
irrespective of malice.”

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receiving a beating from which he could not extricate himself because he was

being held in place by appellant. The medical examiner’s testimony was only

one aspect of the State’s case and could not be considered in isolation.

“Pretermitting whether the doctor's expert opinion itself would support a

conviction, it is not the doctor's expert opinion . . . alone, but the totality of the

evidence that must be sufficient to convince the trier of fact ‘beyond a

reasonable doubt.’” Irby v. State, 260 Ga. 401, 403 (1) (396 SE2d 210) (1990).

Here, based on the total factual circumstances of this case — namely that

appellant and his co-defendant made threatening remarks about the victim days

before his death, that appellant participated in the aggravated assault which

rendered the victim unconscious at one point, that the victim died within a short

time after the assault, that appellant made admissions to two people that he had

killed the victim, and that appellant admittedly concealed the body — a rational

trier of fact was authorized to find appellant guilty beyond a reasonable doubt

of felony murder in spite of the fact that the medical cause of death was

undeterminable due to the body’s decomposition. See State v. Jackson, supra,

287 Ga. at 649-650, n. 2. Cf. Richardson v. State, 276 Ga. 548 (1) (580 SE2d

224) (2003) (evidence sufficient to convict the defendant of murder even in the

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absence of the victim’s body). Accordingly, this enumeration of error cannot

be sustained.

      2.   Appellant alleges counsel rendered constitutionally ineffective

assistance when he failed to object to an allegedly erroneous jury charge. In

order to prevail on a claim of ineffective assistance of counsel, appellant

      must show counsel's performance was deficient and that the
      deficient performance prejudiced him to the point that a reasonable
      probability exists that, but for counsel's errors, the outcome of the
      trial would have been different. A strong presumption exists that
      counsel's conduct falls within the broad range of professional
      conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644

SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the

two-prong test, then the other prong need not be reviewed by the Court. Wright

v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

      Pursuant to the request of appellant, the trial court gave the following

charge on involuntary manslaughter:

            I charge you that if you do not believe beyond a reasonable
      doubt that [defendants] are guilty of the offense of felony murder as
      outlined in [the] indictment but do believe that they are guilty,
      either/or [sic] both of them are guilty of the lesser included offense
      of involuntary manslaughter, I will charge you as to that. . . . [A]
      person commits the offense of involuntary manslaughter in the

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       commission of an unlawful act when he causes the death of another
       human being without any intention to do so by the commission of
       an unlawful act other than a felony, in other words a
       misdemeanor.[5]
                                       ...
             If you find and believe beyond a reasonable doubt that [either
       defendant is] guilty of the offense of involuntary manslaughter as
       I have just defined for you, the form of your verdict would be we,
       the jury, find the [d]efendants guilty of the offense of involuntary
       manslaughter. . . . [Y]ou would only be authorized to consider that
       if you believe that they are not guilty of the offense of felony
       murder. You have to consider the felony murder charge first. If
       you find them not guilty, then you would be authorized to consider
       the charge on involuntary manslaughter. If you do so – do consider
       that and find that under all the evidence and testimony along with
       the instruction of [t]he [c]ourt that there is a reasonable doubt or if
       you do not believe they are guilty or there is a reasonable doubt as
       to their guilt to the offense of involuntary manslaughter, the form
       of your verdict would be . . . we, the jury, find the [d]efendants not
       guilty of the offense of involuntary manslaughter.

Several charges later, the trial court gave the following instruction on rendering

a unanimous verdict:

            Whatever your verdict is, it must be unanimous; that is, it
       must be agreed by all twelve of you.

After the jury had deliberated for a while, it asked a few questions and the trial

court gave the following recharge on involuntary manslaughter:


       5
      The jury was also instructed on simple battery and battery which are both misdemeanors.
OCGA §§ 16-5-23 and 16-5-23.1.

                                             8
            A person commits the offense of involuntary manslaughter in
      the commission of an unlawful act when he causes the death of
      another human being without any intention to do so by the
      commission of an unlawful act other than a felony. Other than a
      felony means a misdemeanor. And in that regard, both simple
      battery and battery are misdemeanor charges.
            Now, before you can consider involuntary manslaughter in
      this case, you have to first address the felony murder charge, and
      you have to make a decision as to the felony murder charge. If you
      were to find there’s a reasonable doubt as to the felony murder or
      if you find that either or both of the [d]efendants not guilty of the
      felony murder, then you’d be authorized to consider involuntary
      manslaughter. . . . [I]f you were to find the [d]efendants guilty of
      the felony murder charge, you wouldn’t even consider the
      involuntary manslaughter at all. That’s only if you find them not
      guilty or if there’s a reasonable doubt as to their guilt, then you
      would consider the involuntary manslaughter.

When the jury later asked whether someone could be convicted of aggravated

assault coupled with involuntary manslaughter, the trial court stated they could

not. The trial court further clarified:

            The felony murder [charge] is predicated upon an underlying
      felony, and in this case an aggravated assault. Now, aggravated
      assault is charged as a separate count in this indictment in Count
      Three. So conceivably you could find somebody guilty of
      aggravated assault and nothing else, but you cannot find somebody
      guilty of felony murder without the underlying aggravated assault
      having been found.
            Also as to the involuntary manslaughter, just like felony
      murder is predicated on an underlying felony, the involuntary
      manslaughter is predicated upon a misdemeanor. In this case ...it
      was either battery or simple battery would give rise to the

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      involuntary manslaughter charge. But, once again, you don’t
      consider that until you’ve reached a decision as far as the felony
      murder charge is concerned. If you have found somebody guilty of
      felony murder, then you don’t go any further with the involuntary
      manslaughter because it doesn’t apply. That is what we call a lesser
      included offense. You can’t find them guilty of both; it would have
      to be one or the other or neither.
      Appellant argues counsel was deficient for failing to object to the

instructions on involuntary manslaughter followed by the instruction on a

unanimous verdict because he contends the jurors would have believed they had

to be unanimous that appellant was not guilty of felony murder before they

considered the issue of involuntary manslaughter during their deliberations. On

appeal, this Court reviews jury charges as a whole to determine whether there

is any error. DeLeon v. State, 289 Ga. 782 (3) (716 SE2d 173) (2011). Here,

the instruction on unanimity spoke only to the jury’s final verdict and did not

concern its deliberations. The instructions merely prevented the jury from

rendering a verdict that included both felony murder and involuntary

manslaughter. Since the jury instructions were not erroneous, counsel was not

deficient for failing to make an objection that lacked merit. Duvall v. State, 290

Ga. 475 (2) (b) (722 SE2d 62) (2012) (counsel not deficient for making



                                       10
objections that would have lacked merit).             As such, the trial court properly

denied appellant’s ineffective assistance claim.

      3. Finally, appellant contends the trial court erred when it determined that

his in-custody statement to police was voluntary and not induced by a hope of

benefit.6 The record shows appellant made a video-recorded statement to

Madison County Sheriff Clayton Lowe during the investigation of the victim’s

disappearance. During the pre-trial Jackson-Denno7 hearing, the trial court

heard testimony from Sheriff Lowe and heard the audio track of the interview.

Based on that evidence, the trial court ruled that the statement was admissible.

Appellant contends the trial court erred because Sheriff Lowe gave him a hope

of benefit when he told appellant “by not confessing” he would be letting

himself get charged for murder and when he told appellant that all he could be

charged with was concealing a dead body.

      Under Georgia law, only voluntary incriminating statements are
      admissible against the accused at trial, and the State has the burden
      of proving the voluntariness of a confession by a preponderance of
      the evidence. OCGA § 24-3-50 requires that an admissible


      6
        See former OCGA § 24-3-50 (repealed effective January 1, 2013). OCGA § 24-3-50 has
been replaced by OCGA § 24-8-824.
      7
          Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

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       confession must have been made voluntarily, without being induced
       by another by the slightest hope of benefit or remotest fear of
       injury. The promise of a hope or benefit that will render a
       confession involuntary under OCGA § 24-3-50 must relate to the
       charge or sentence facing the suspect. Generally, the “hope of
       benefit” to which the statute refers has been construed as a hope of
       lighter punishment.

 Wilson v. State, 285 Ga. 224, 227 (3) (675 SE2d 11) (2009) (citations and

punctuation omitted).

       We have reviewed appellant’s video-recorded statement to Sheriff Lowe.

At the time of the interview, appellant was in jail on an unrelated probation

violation. Sheriff Lowe read appellant his Miranda8 rights before questioning

began. Throughout the approximate 45-minute interview with Sheriff Lowe,

appellant maintained that, although there had been a fight involving the victim,

he did not kill the victim. In fact, appellant initially stated that the fight occurred

inside his trailer while he was away,9 and that the victim was not there when

appellant came back home. Sheriff Lowe advised appellant that the evidence

authorities had gathered suggested appellant was present at the scene. Sheriff


       8
           Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
       9
          According to appellant, he left his trailer door unlocked, and the victim had an open
invitation to “crash” in his trailer whenever the victim had been drinking regardless of whether
appellant was home.

                                               12
Lowe then started questioning appellant as to whether he came home, found the

body and then got rid of it in a panic, stating to appellant that he would be in

less trouble for concealing the body, and that if appellant said nothing to help

himself he was looking at more trouble because other witnesses were pointing

their fingers at him for the victim’s death. Appellant continued to deny being

involved or knowing of the victim’s whereabouts. Sheriff Lowe subsequently

made a statement to the effect that there was a difference between a charge of

concealing a death and “catching” a murder charge and that no one was going

to come after appellant for getting rid of a dead body he found in his home.

Appellant then asked Sheriff Lowe what “guarantee” he would have if he told

where “them boys” had hidden the body, and Sheriff Lowe responded that he

would tell the district attorney and the judge that appellant had cooperated.

Appellant asked what he could be charged with if he was to tell what had been

related to him about the body’s whereabouts, and the Sheriff responded the most

appellant could be charged with would be disposing of a body. Thereafter,

appellant spent several minutes describing where the Hillsman brothers

allegedly told him the body was located, and, after a while, he drew a map based

on what he purportedly had been told about the body’s location.

                                       13
      After he finished drawing the map, appellant again told Sheriff Lowe the

victim was not at his house when he came home that night. A few minutes later,

Sheriff Lowe said, “Why don’t you just tell me what happened, . . . so we can

get out of here.” In response, appellant asked for a lawyer and then said he did

not want one. Sheriff Lowe clarified that appellant did not want a lawyer.

Appellant then made the following admission: that he was at home, that the

Hillsman brothers and the victim were at his trailer drinking, that the victim got

into a fight with the co-defendant, that the co-defendant had the victim in a

headlock and that they tumbled into the other side of the trailer, that appellant

tried to break up the fight, that the victim was passed out on the floor, that the

Hillsman brothers left his trailer, and that he disposed of the body when he

realized the victim was deceased and not merely passed out.             After his

admission, appellant added more detail to the map he had previously drawn.

Sheriff Lowe again stated he would tell authorities that appellant had cooperated

and concluded the interview.

      When viewed in the totality of the circumstances, Sheriff Lowe did not

offer appellant a lighter charge or sentence in exchange for his admission to

disposing of the victim’s body. Rather, appellant voluntarily made his statement

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in direct response to Sheriff’s Lowe’s exhortation to tell the truth. Wilson v.

State, supra, 285 Ga. at 228 (“Exhortations to tell the truth are not a hope of

benefit. . . .”). Accordingly, the trial court did not err when it admitted

appellant’s statement to Sheriff Lowe at trial. Id.

      Judgment affirmed. All the Justices concur.



                          Decided January 21, 2014.

            Murder. Oglethorpe Superior Court. Before Judge Bailey.

            Michael W. Tarleton, James C. Bonner, Jr., for appellant.

            D. Parks White, District Attorney, Martin L. Melton III, Jean G.

Mangan, Geoffrey L. Fogus, Assistant District Attorneys, Samuel S. Olens,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney

General, for appellee.




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