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Tessmer v. State11/30/2000
guilty of felony murder, I must dissent. The evidence overwhelmingly demonstrates that Tessmer and Newton were involved in an emotionally, physically and sexually abusive relationship caused in large part by Newton's alcoholism. In the course of their abbreviated four month marriage, Newton, who drank heavily, was arrested three times for driving under the influence, appeared late for his court date where he then registered a .29 on the alco-sensor test, was held in contempt of court and incarcerated for more than twenty days. Newton exhibited controlling and erratic behavior during the marriage. He made numerous calls to Tessmer's place of employment to check on her and monitored her phone calls. There were constant demands for sexual intercourse and continual disregard of Tessmer's refusals of sex. By January 1998, the physical abuse escalated to the point that Tessmer left for a short time. In the days before his death, Newton remained extremely intoxicated, combatant, and incoherent. As their home was burning to the ground, Newton argued with firefighters, demanding that they go into the burning home to retrieve his alcohol. He punched a hole in the wall of the apartment they moved into after the fire. During an argument the night before the shooting, Newton hit Tessmer, pushed her against a night stand, bloodied her nose and wrenched her elbow. The following day, when Tessmer refused to have sex with Newton, he raped her. After the rape, he continued the abuse by forcing her already injured elbow behind her back, bending her fingers until they were almost broken, and wrapped his legs around her midsection in a wrestling hold until she could barely breathe. At the end of the assault, Tessmer lay on the floor afraid. She admits that she thereafter pulled out the gun which she had hidden away from Newton and held it cradled in her hand in order to scare Newton and prevent him from coming at her again. In numerous statements to police, Tessmer stated Newton then diverted her attention, reached for the gun, and during the struggle pushed her hand against the trigger causing it to fire.
Based on this evidence of record, the trial court charged the jury on the indictment, defined malice murder, felony murder, and aggravated assault, and instructed the jury on the defenses of accident and justification. The court then instructed the jury that accident is not a defense to the offense of felony murder and could not be considered by the jury in deciding the guilt of the defendant as to the felony murder count of the indictment. Under the law of this State, however, accident can be a defense to felony murder and I believe the trial court erred in instructing the jury otherwise.
Under Georgia law, a person commits malice murder when he acts with the unlawful intention to kill without justification or mitigation. OCGA §16-5-1 (a) and (b). A person commits the crime of felony murder "when, in the commission of a felony, he causes the death of another human being irrespective of malice." OCGA § 16-5-1 (c). While I agree with the majority that proof of felony murder does not require proving malice or the intent to kill, Maj. Op. at 5, felony murder does require "that the defendant possess the requisite criminal intent to commit the underlying felony." Holliman v. State, 257 Ga. 209, 210 (1) (356 SE2d 886) (1987). See Lattimore v. State, 265 Ga. 102 (3) (454 SE2d 474) (1995). Accord Edge v. State, 261 Ga. 865-866 (2) (414 SE2d 463 (1992) (felony murder depends on transfer or imputation of malice from mens rea of felony to the killing). By definition, then, a defendant found guilty of felony murder based on the underlying felony of aggravated assault must be found to possess the requisite intent to commit aggravat
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