In the Supreme Court of Georgia


                                                      Decided: February 16, 2015


                          S14A1685. CLARK v. THE STATE.

       NAHMIAS, Justice.

       Appellant Constance Clark was convicted of malice murder and a firearm

offense as a party to the shooting death of her husband, William Eric Clark. On

appeal, she argues that the evidence presented at trial was insufficient to support

her convictions and that the trial court erred in allowing the prosecutor to offer

unsworn testimony during the State’s opening argument, in admitting testimony

by a medical examiner who did not perform the victim’s autopsy, and in

permitting a witness’s videotaped statement to be played for the jury multiple

times in alleged violation of the continuing witness rule. We affirm.1


       1
           The victim was killed on December 13, 2005. On May 29, 2009, after the police had
reinitiated the investigation as a “cold case” in 2008, a Fulton County grand jury indicted Appellant,
Jean Pierre DeVaughn, and Christopher Tumlin for malice murder, two counts of felony murder,
aggravated assault with a deadly weapon, hijacking a motor vehicle, and possession of a firearm
during the commission of a felony; Appellant and DeVaughn were also charged with conspiracy to
commit murder. Appellant was tried separately from August 8 to 16, 2011, and the jury found her
not guilty of hijacking and felony murder based on hijacking but guilty of the other charges. The
trial court sentenced Appellant to life in prison for malice murder and a consecutive term of five
years for the firearm conviction. The remaining felony murder verdict was vacated by operation of
law, and the aggravated assault and conspiracy counts merged. Appellant filed a timely motion for
new trial, which she amended with the assistance of new counsel on August 31, 2012. After a
hearing, the trial court denied the motion on April 24, 2013. Appellant filed a timely notice of
       1.      (a)   Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. Appellant and the victim were married

in 1999; they lived in Bessemer, Alabama. In June 2000, the victim obtained a

$100,000 life insurance policy. In June 2005, less than six months before he

was killed, the victim obtained another policy in the amount of $500,000.

Appellant was named as the primary beneficiary on both policies. At some

point during their relationship, Appellant and the victim began having financial

difficulties, and they argued about whether Appellant should spend their money

on illegal drugs. The couple borrowed money from the victim’s mother, and

they eventually filed for bankruptcy. In the late spring or early summer of 2005,

Appellant pulled a gun on the victim during a heated argument. That fall, one

of Appellant’s friends saw her in a barber shop and asked how the victim was

doing. Appellant replied, “F**k Eric. I need to collect some insurance money

on his ass.”


appeal, and the case was docketed in this Court for the September 2014 term and submitted for
decision on the briefs.
        DeVaughn was tried before Appellant and convicted on all charges; this Court recently
affirmed his convictions on appeal. See DeVaughn v. State, Case No. S14A1722 (decided Feb. 2,
2015). Tumlin testified at Appellant’s trial under a grant of use immunity; the record does not
indicate how the charges against him were resolved. The record does not indicate whether Khorey
Branch, who was with DeVaughn and Tumlin at the time of the crimes, was ever charged.

                                              2
      The victim worked a side job as a bartender, and he planned to drive to

Atlanta on December 13, 2005, to buy liquor at a discounted rate for an event.

Appellant called her cousin Jean Pierre DeVaughn, who lived in Atlanta, telling

him that the victim was an abusive husband and asking him to kill the victim.

Appellant then gave the victim DeVaughn’s cell phone number and told the

victim that she had arranged for him to meet with DeVaughn, who could help

him find the discount liquor store. Meanwhile, DeVaughn called his friend

Khorey Branch to ask if Branch knew where he could buy a gun, and Branch

contacted Christopher Tumlin, who agreed to sell DeVaughn a handgun. On the

evening of December 13, DeVaughn and Branch went to Tumlin’s home in

southwest Atlanta, where Tumlin sold DeVaughn a handgun for $125.

DeVaughn then drove with Tumlin and Branch to a gas station near Six Flags,

where they met up with the victim around 9:00 p.m.

      Under the impression that he was being led to the liquor store, the victim

then followed DeVaughn to Waterford Edge, an unfinished subdivision near

College Park where DeVaughn had previously delivered construction materials

for a job. DeVaughn and the victim pulled their cars into the driveway of an

unfinished house, got out, and began to talk while Tumlin and Branch remained

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in DeVaughn’s car. During what appeared to be a casual conversation,

DeVaughn suddenly pulled out his gun and shot the victim four or five times,

including twice in the head, killing him.         Tumlin then jumped out of

DeVaughn’s car and got into the victim’s car, and both cars sped out of the

subdivision. Tumlin abandoned the victim’s car about a mile from his home.

DeVaughn drove Branch home before returning home himself.

      About two weeks after the murder, Appellant called the detective assigned

to the case. She did not seem concerned with the progress of the investigation,

instead asking why the insurance company had not paid her the death benefit on

her husband. Derrick Henry, who dated Appellant after the murder, told

investigators that Appellant had paid her cousin Pierre $5,000 to kill the victim.

At trial, Tumlin testified that he overheard DeVaughn say “he knew this lady

that wanted her husband killed” in the car on the way to the gas station where

they met the victim. And Branch testified that on the car ride home after the

shooting, DeVaughn said that his cousin had wanted her husband killed because

he was being abusive. Cell phone records showed four calls between DeVaughn

and Appellant on the night the victim was killed, two calls within the two hours

before the shooting and two calls about two hours afterward.

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            (b)   Contrary to Appellant’s initial argument, the evidence

presented at trial and summarized above was sufficient to authorize a rational

jury to find Appellant guilty beyond a reasonable doubt as a party to the crimes

for which she was convicted. Her convictions therefore survive due process

review under the federal constitution. See Jackson v. Virginia, 443 U.S. 307,

319 (99 SCt 2781, 61 LE2d 560) (1979). See also OCGA § 16-2-20 (defining

parties to a crime); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It

was for the jury to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.’” (citation omitted)).

            (c)   Appellant also contends that the evidence was insufficient to

support her convictions under Georgia statutory law because the evidence was

entirely circumstantial and did not exclude every reasonable explanation except

that of her guilt. Under former OCGA § 24-4-6 (§ 24-14-6 in the new Evidence

Code), to warrant a conviction on circumstantial evidence alone, the proven

facts must not only be consistent with the hypothesis of guilt, but also must

exclude every reasonable theory other than the guilt of the accused.

      The evidence against Appellant, most particularly the evidence from

Derrick Henry, was not entirely circumstantial, so her argument rests on an

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incorrect premise.2 Moreover, the circumstantial evidence the State presented

was sufficient to support Appellant’s convictions. As this Court has explained,

       [w]hether every reasonable hypothesis except that of the guilt of the
       defendant has been excluded is a question for the jury. Where the
       jury determines the evidence excluded every reasonable hypothesis
       save that of guilt, such a finding will not be disturbed unless the
       verdict of guilty is unsupportable as a matter of law.

Merritt v. State, 285 Ga. 778, 779 (683 SE2d 855) (2009) (citations omitted).

       The evidence in this case showed that Appellant and the victim were in

financial distress, their relationship was strained, Appellant pulled a gun on the

victim months before his death, and Appellant stood to gain $600,000 from the

victim’s death as the primary beneficiary of his life insurance policies. In

addition, shortly before the victim’s death, Appellant told a friend that she

needed to collect insurance money on the victim, and two weeks after the

killing, Appellant contacted the police to ask why she had not received the

insurance money rather than asking about the progress of the investigation into


       2
            Appellant asserts that the trial court struck Henry’s testimony, causing the hearsay
testimony offered by Detective Wilson to impeach Henry to have no probative value. Actually,
Henry’s testimony was not struck, only his mention on direct examination of a rumor about the
murder that he had heard “in the street.” Henry then testified on cross-examination that Appellant
was upset by the rumor that she had killed her husband. Detective Wilson later testified without
objection that Henry “told us that [Appellant] had paid her cousin Pierre $5,000 to kill [the
victim]. . . . He didn’t say anything about he heard. He told us as if he knew.”

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the murder of her husband. See id. at 780 (explaining that the defendant’s

difficult financial situation, the fact that she stood to gain from her husband’s

death as the beneficiary of his life insurance policies, and her threats and violent

actions toward the victim were relevant in establishing her guilt based entirely

on circumstantial evidence). Tumlin and Branch testified that DeVaughn

indicated that he killed the victim for Appellant. And four calls were placed

between Appellant and DeVaughn in the hours preceding and following the

shooting. See Crawford v. State, 294 Ga. 898, 901-902 (757 SE2d 102) (2014)

(phone records reflecting four calls between the parties to a murder on the day

of the crime sufficiently corroborated accomplice’s testimony). Taken as a

whole, this evidence was sufficient for the jury to exclude every reasonable

explanation save that of Appellant’s guilt. See Merritt, 285 Ga. at 779 (“[The

circumstantial evidence] need not exclude every conceivable inference or

hypothesis – only those that are reasonable.”).

            (d)    Appellant further contends that the evidence was insufficient

because she was convicted based upon the testimony of a single accomplice,

Christopher Tumlin. Under former OCGA § 24-4-8 (§ 24-14-8 in the new

Evidence Code):

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      The testimony of a single witness is generally sufficient to establish
      a fact. However, in certain cases, including . . . felony cases where
      the only witness is an accomplice, the testimony of a single witness
      is not sufficient. Nevertheless, corroborating circumstances may
      dispense with the necessity for the testimony of a second witness,
      except in prosecutions for treason.

We have explained that under this statute,

      sufficient corroborating evidence may be circumstantial, it may be
      slight, and it need not of itself be sufficient to warrant a conviction
      of the crime charged. It must, however, be independent of the
      accomplice testimony and must directly connect the defendant with
      the crime, or lead to the inference that he is guilty. Slight evidence
      from an extraneous source identifying the accused as a participant
      in the criminal act is sufficient corroboration of the accomplice to
      support a verdict.

Threatt v. State, 293 Ga. 549, 551 (748 SE2d 400) (2013) (citations and

punctuation omitted). The corroborating evidence may be testimony from

another accomplice. See Hanifa v. State, 269 Ga. 797, 808 (505 SE2d 731)

(1998).

      Appellant’s argument is meritless. Tumlin’s testimony was not the sole

basis for a finding of any element of the offenses of which Appellant was

convicted, and in any event his testimony was adequately corroborated by other

evidence, including Branch’s testimony.

      2.    Appellant argues that her convictions should be reversed because

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the trial court allowed the prosecutor to offer unsworn testimony about his role

in the investigation during his opening statement. Appellant did not object to

the prosecutor’s opening statement, however, and she therefore failed to

preserve this issue for appeal. See Johnson v. State, 293 Ga. 641, 643 (748

SE2d 896) (2013); Hall v. State, 292 Ga. 701, 702 (743 SE2d 6) (2013).

Moreover, Appellant has not shown any harm from the only aspect of the

prosecutor’s opening statement that was not supported by the evidence the State

then presented to the jury – a brief reference to when the prosecutor had been

assigned the case. See Burgeson v. State, 267 Ga. 102, 107 (475 SE2d 580)

(1996). We note in this respect that prior to opening statements, the trial court

instructed the jury that “[t]his opening statement is not evidence. Remember

that what the lawyers say is not evidence but it is a preview or an outline of what

they expect the evidence to be.”

      3.    Appellant contends that the trial court erred by allowing a medical

examiner who did not perform the victim’s autopsy to testify that the victim’s

cause of death was gunshot wounds to the head and torso. Again, however,

Appellant did not object to the medical examiner’s testimony at trial and

therefore failed to preserve this issue for appeal. See Whitehead v. State, 287

                                        9
Ga. 242, 246 (695 SE2d 255) (2010).

         In any event, this Court has held, as a matter of Georgia evidence law in

effect at the time of this trial, that “[a]n expert may base her opinions on data

gathered by others.” Watkins v. State, 285 Ga. 355, 358 (676 SE2d 196)

(2009).3 The medical examiner who testified was not a “mere conduit” for the

findings of the medical examiner who performed the autopsy, who had moved

out of state by the time of trial and was unavailable to testify. Id. Instead, the

testifying expert reviewed the x-rays and photographs taken during the autopsy

as well as the autopsy report and reached her own opinion. See Rector v. State,

285 Ga. 714, 715-716 (681 SE2d 157) (2009). Moreover, the admission of this

expert testimony was harmless, because the fact that the victim had been shot to

death was never disputed at trial, where eyewitness evidence established that the

victim had been shot multiple times at close range and left lying in a deserted

driveway. See id. at 716.

         4.       Finally, Appellant contends that the trial court violated the

continuing witness rule by allowing Tumlin’s videotaped statement to the


         3
             The new Evidence Code addresses this issue in OCGA § 24-7-703. See also OCGA § 24-
7-705.

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police, which Appellant had admitted into evidence during Tumlin’s cross-

examination, to be replayed to the jury multiple times – during the subsequent

testimony of a detective who took the statement, during the State’s closing

argument, and in the courtroom at the jury’s request during its deliberations.

Yet again, Appellant did not object at trial, and thus she failed to preserve this

claim for appeal. See Whitehead, 287 Ga. at 246. But in any event, objections

based on the continuing witness rule would have been meritless. That rule of

Georgia law regulates which documents or recordings go into the jury room

with the jury during deliberations and which ones do not. See Paul S. Milich,

Ga. Rules of Evidence § 19:8 (2014-2015 ed.). The rule has no application to

the replaying of recorded statements during the examination of witnesses, during

closing arguments, or in the courtroom at the jury’s request during deliberations.

See Lopez v. State, 291 Ga. App. 210. 214 (661 SE2d 618) (2008) (“[T]he

continuing witness rule does not apply where, as here, the videotape was

replayed to the jury a single time ‘in a controlled environment, the courtroom,

with all parties and the trial judge present.’” (citation omitted)).

      Judgment affirmed. All the Justices concur.



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