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Tessmer v. State11/30/2000
Ethel Elizabeth Tessmer was convicted of felony murder, predicated on the underlying felony of aggravated assault, in connection with the shooting death of her husband, David Newton. This appeal follows the denial of her motion for a new trial.
1. Viewing the evidence in a light to uphold the verdict, we find the following: Tessmer, a Barnesville police officer, was head of the Domestic Violence Task Force; she had never been married until she married Newton in September 1997.
Newton was an alcoholic and convicted felon. Tessmer's marriage to Newton was punctuated by Newton's alcoholic outbursts, and his verbal, physical and sexual abuse. Early in January 1998, the abuse escalated to the point that Tessmer left home to live in a motel . However, she returned after only a few hours because she felt that Newton needed her help and that he could be rehabilitated.
On January 9, 1998, Tessmer's mobile home burned to the ground; Tessmer and Newton lost all of their possessions. After a brief stay at the home of Tessmer's parents and a motel , the couple went to live in an apartment. They had two twin mattresses which were placed together on the floor.
From the time the couple moved into the apartment, until Newton's death five days later, Newton was intoxicated and belligerent. He put his fist through a wall in the apartment; he physically abused Tessmer and gave her a bloody nose.
On the night in question, the abuse escalated even more. Newton forced Tessmer to have sex with him. Then he physically abused Tessmer by putting her in several "wrestling holds": he wrenched her arm, bent her fingers, and squeezed her until she could hardly breathe.
Later, when the situation calmed down, Tessmer moved to the floor next to her mattress, and Newton sat on his mattress. Although she did not consider Newton to be a threat at that time, Tessmer removed her .40 caliber service pistol from under her mattress. She pointed it at Newton and put her finger on the trigger because she wanted to scare him, and was just "tired of all of it." The pistol discharged and Newton was shot in the chest.
According to Tessmer, Newton grabbed her hands as she held her pistol, and he put his thumb in the trigger well, causing the pistol to fire. However, no gunshot residue was found on Newton's hands. Moreover, the medical examiner opined that, since Newton was so intoxicated, it was highly unlikely that he would have been able to place his thumb in the trigger well.
The evidence was sufficient to enable any rational trier of fact to find Tessmer guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stiles v. State, 264 Ga. 446 (448 SE2d 172) (1994).
2. The trial court charged the jury on the law of aggravated assault, and, in that regard, it included instructions on the defenses of accident and justification. See Turner v. State, 262 Ga. 359 (418 SE2d 52) (1992) (jury charges on both accident and justification authorized when defendant asserts his weapon discharged accidentally while he was defending himself). The trial court went on to define felony murder and to instruct the jury that the underlying felony in this case was aggravated assault. However, the trial court charged that accident was not a defense to felony murder:
If it is shown by the evidence beyond a reasonable doubt that the injury to the alleged victim occurred by the discharge of a gun held by the accused and used in an attempt to place the alleged victim in reasonable apprehension of immediately receiving a violent injury, the accused would not be able to claim the defense of acc
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