Justia.com Opinion Summary: Appellant, a 15-year-old, was convicted of murdering her mother and sentenced to life imprisonment plus a consecutive five-year term for firearm possession. At issue was whether the trial court committed reversible error by allowing the State to introduce, over defense counsel's objections, various items of evidence seized from appellant's bedroom during the police investigation, including photographs of her with dyed black hair and dark make-up; a document bearing the words of a "curse;" and seven different inscriptions of song lyrics and quotations attributed to various singers and other artists bearing themes of anguish, enslavement, atheism, and violence. The court held that the evidence was improper prejudicial character evidence where the nature of the evidence was highly inflammatory and evidence of appellant's guilt was entirely circumstantial and not overwhelming. Accordingly, the court could not say that it was highly probable that the error did not contribute to the jury's verdict and therefore, reversed appellant's conviction.
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In the Supreme Court of Georgia
Decided: May 31, 2011
S11A0536. BORING v. STATE.
HUNSTEIN, Chief Justice.
Appellant Courtney Boring was convicted of murdering her mother, Debra
Boring, and sentenced to life imprisonment plus a consecutive five-year term
for firearm possession.1 Because the trial court allowed the State to introduce
improper and prejudicial character evidence at trial, appellant’s conviction must
be reversed.
Construed in the light most favorable to the verdict, the evidence adduced
at trial established as follows. On the evening of December 23, 2005, Rodney
Boring, the victim’s husband, placed a 911 call to report the shooting of his
On June 27, 2006, appellant was indicted by a Gilmer County grand jury on
one count of malice murder and one count of firearm possession in connection
therewith. Following a jury trial held January 29 through February 8, 2007,
appellant was convicted on both counts and sentenced to life imprisonment plus
five years to be served consecutively. Appellant’s timely motion for new trial, as
amended, was heard on May 13, 2010 and June 21, 2010 and was denied on
September 3, 2010. Appellant filed her notice of appeal on September 10, 2010,
whereupon the case was docketed in this Court to the January 2011 term and
thereafter submitted for decision on the briefs.
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wife. Rodney told police that he had been at a catfish pond approximately onequarter of a mile away from their home, where he typically went after work to
drink liquor, when he heard what he recognized as a gunshot from a large
caliber gun. He reported that, a few minutes later, he received a phone call from
appellant, his 15-year-old daughter, who was in hysterics and mostly
unintelligible but managed to communicate that “momma shot herself.” Rodney
immediately went to their home, where he found appellant sobbing and his wife
lying dead in the doorway of the front door on top of her purse and some WalMart shopping bags, with a gaping gunshot wound to the back of the head and
his .270 bolt-action rifle on the floor nearby.
Appellant told police that late that afternoon she had been at home taking
a shower while her mother went to Wal-Mart; that she was getting dressed after
her shower when she heard her mother call out her name, which she ignored;
and that, a short time later, she heard a loud noise and walked into the living
room to find her mother lying in the doorway with the rifle beside her.
Appellant stated that she did not attempt to render aid to her mother or call 911
but rather immediately grabbed the phone, ran outside, and called her father. She
reported neither seeing nor hearing any other person in or around her house
2
before, during, or after the shooting; a police search of the home found no one
else present. The investigator who interviewed appellant at the scene described
her demeanor as “very unusual” for one experiencing such a traumatic event, in
that appellant was calm, seemed “agitated with me like it was a bother,” and did
not exhibit sadness.
The State’s firearms expert determined through testing that Rodney’s rifle
was in fact the murder weapon. Rodney told investigators that he had cleaned
the rifle that morning in preparation for a hunting trip and had left it in the house
on a love seat with live rounds of ammunition on an adjacent table. Though
fingerprints were lifted from the rifle, they were of insufficient quality to use for
identification. Gunshot residue was found on the victim’s hands, which,
according to one of the State’s forensics experts, was consistent with the theory
either that she had fired the weapon or that she was less than eight to ten feet
from the weapon when it was fired. However, the State’s forensic pathologist,
who performed the autopsy, opined that the manner of death was homicide, not
suicide. Two other expert witnesses agreed with the conclusion that the fatal
wound was not self-inflicted: the State’s crime scene specialist testified to his
conclusion that the gun had been fired from a particular area inside the house
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near the front door; the State’s firearms expert likewise opined that the shot had
been fired from inside the house, by someone other than the victim, from a
distance of four to nine feet away.
The condition of the Borings’ home, as observed by responding
investigators and documented in photographs admitted at trial, was filthy and,
according to the testimony of one investigator, not fit for a child to inhabit. A
neighbor of the Borings testified that he had on previous occasions heard
arguments coming from their home and had seen patrol cars at the house. There
was also evidence that Rodney was an alcoholic who was verbally abusive to
both his wife and daughter.
The lead investigator in the case, GBI special agent Natalie Brunner,
testified that appellant became the target of the investigation based on “mostly
a matter of elimination, simply the fact that we could not put a third party there
and both the rifle and ammunition came from inside the Boring residence, and
to the best that we could establish, there were no other parties present.” There
was no evidence of forced entry into the house, and both the Borings’ neighbor
and Rodney’s brother, Ricky, who had driven past the Boring home between
6:15 and 6:30 p.m. that day, told police they did not recall seeing any activity
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or vehicles at the Boring home around the time of the shooting. Though
appellant told police she had the light on in her bedroom at the time of the
shooting, Ricky reported having noticed that no lights were on in the residence
when he drove by. There was evidence that appellant knew how to operate
small caliber rifles but that she had had no instruction with respect to large
caliber weapons such as the gun used in the shooting.
The State adduced evidence that, seven to ten days before the shooting,
appellant had had a dispute with her parents after having been caught sneaking
out of the house to meet up with her boyfriend, 19-year-old Joel Linville. After
this incident, appellant, with the victim’s approval, arranged to live with her
aunt, Anita Ingle, though within a few days of the move Ingle and the victim
agreed that appellant would return home because Ingle had discovered the
teenager had again left the house with Linville without permission.
Appellant has at all times denied shooting her mother. In several
interviews with police during an approximately two-month period after the
murder, she consistently denied any involvement, albeit with minor variances
in certain details, and likened her conflicts with her parents to those of the
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typical teenager. Though police interviewed 20 to 30 people, including
appellant’s friends as well as teachers and school officials, these efforts yielded
no evidence implicating appellant in the shooting or any other act of violence.
Police also enlisted Linville’s assistance in questioning appellant about the
shooting, but Linville conveyed nothing that incriminated her. Appellant did
not testify at trial, but the jury viewed videotapes of two of her lengthy
interviews with police, in which she resisted investigators’ repeated efforts to
elicit a confession.
Linville was considered as a suspect by investigators and ruled out, as
there was evidence corroborating his testimony that he had been at work at a
nearby fast food restaurant at the time of the shooting. Cell phone records
confirmed Rodney’s testimony that a phone call was placed to his cell phone
from the Borings’ home phone around the time that the shooting occurred,
followed a few minutes later by a call from Rodney’s cell phone to 911.
1. We find that the evidence, while far from overwhelming, was sufficient
to enable a rational trier of fact to conclude beyond a reasonable doubt that
appellant was guilty of the crimes of which she was convicted. Jackson v.
Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also OCGA §
6
24-4-6 (evidence must be sufficient to exclude all reasonable hypotheses save
that of defendant’s guilt to warrant conviction on circumstantial evidence).
2. Appellant contends that the trial court committed reversible error by
allowing the State to present irrelevant and highly prejudicial character
evidence. We agree. At the conclusion of Agent Brunner’s direct examination,
the State introduced, over defense objections, various items of evidence seized
from the 15-year-old’s bedroom during the police investigation, including
photographs of appellant with dyed black hair and dark make-up; a document
bearing the words of a “curse” to be recited “while burning the letter over a
black candle”; and seven different inscriptions, one typewritten and the rest
handwritten on the bedroom walls, of song lyrics and quotations attributed to
various singers and other artists, bearing themes of anguish, enslavement,
atheism, and violence.2 Though the State elicited no elaboration from any of its
witnesses regarding the import of these items, the State explicitly sought in both
opening and closing to link these items with the so-called “gothic lifestyle” and
2
Two of the quoted song lyrics, for example, read as follows:
“I am not a slave – to a god who doesn’t exist”;
“if I had it my way the f***in’ sun would be GONE.”
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to characterize them as evidence of “satanic influences.”
Specifically, in opening, the prosecutor stated:
We want to show you, and it will be extremely important, this
Defendant’s what we call state of mind in law. We all have some
state of mind. We have a bent of mind, things that we think about
that make us what we are, our thoughts. We believe there even is
a depravity of mind here.
You will see certain things about [appellant’s] lifestyle. I, in
voir dire, mentioned some things about gothic lifestyle. . . . We’re
attempting to show you by these things what’s going on in this
Defendant’s mind at the time of this killing.
We will show you also that she had there inscriptions on the
wall. I won’t go through all of them. You will see them. Pay close
attention to writings that this 15-year-old has on her wall. We . . .
believe you will see some inkling of satanic influences here.3
In his closing argument, the prosecutor’s recitation of the evidence both began
and ended with references to these items. After displaying the photographs and
reading aloud the inscriptions, the prosecutor acknowledged that these items do
not “prove” that appellant killed her mother but went on to state: “It’s not the
point. The point is . . . that these are pieces of a puzzle, and you have to consider
Though defense counsel immediately objected on foundation grounds to
the prosecutor’s reference to “satanic influences” and the trial court sustained the
objection, no curative instruction was given, and the prosecutor went on to state,
“[w]e will show you certain verses and things that she had in her possession out
there. You will make a decision about what those things mean about her state of
mind, her bent of mind, and her depravity of mind.”
3
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all of the evidence together.” The prosecutor further contended in closing that
some of the inscriptions were quotations from the “founder of the Satanic
Church” – despite the absence of any evidence of record to support this claim
– and again emphasized that these items “must be taken as pieces of a puzzle.”
The prosecutor ended his closing by reading the words of the aforementioned
“curse.” In sum, this evidence was clearly integral to the State’s strategy of
portraying appellant as a deviant capable of murdering her mother, in the
absence of any other evidence suggesting she had a violent or angry nature.
“Whether to admit evidence is a matter resting in the trial court’s sound
discretion, and evidence that is relevant and material to an issue in the case is
not rendered inadmissible because it incidentally places the defendant’s
character in issue. [Cit.]” (Emphasis added.) Wolfe v. State, 273 Ga. 670, 674
(4) (a) (544 SE2d 148) (2001). Though we have on numerous occasions
affirmed the admission of evidence regarding a defendant’s affiliation with
controversial organizations or belief in unpopular ideologies, in all such
instances this evidence was directly relevant to a contested issue in the case such
as motive, identity, or intent. See, e.g., id. at 674 (4) (trial court properly
admitted evidence of gang involvement where State adduced evidence that
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defendant committed crimes at request of fellow gang members and was
required to participate therein under gang’s code of conduct); Clark v. State, 271
Ga. 6, 9 (4) (515 SE2d 155) (1999) (evidence of defendants’ “membership in an
unsavory group,” though incidentally bearing on their character, admissible
when alleged motive for crime “directly involve[d]” such membership); Mize
v. State, 269 Ga. 646 (3) (501 SE2d 219) (1998) (trial court properly allowed
evidence of defendant’s racist beliefs and leadership role in Ku Klux Klan-like
organization because was relevant to State’s theory as to motive). In this case,
by contrast, the State theorized that appellant had committed the murder to
avenge her mother’s interference in the teenager’s relationship with Linville;
appellant’s alleged “gothic”/satanic beliefs bore no specific nexus with the
crime. Compare McIntyre v. State, 266 Ga. 7 (1), (6) (463 SE2d 476) (1995)
(evidence regarding defendant’s membership in satanic cult properly admitted
where testimony showed murder was in retaliation for victim’s refusal of
defendant’s sexual advances and where defendant performed satanic ritual over
victim’s dead body); Whitener v. State, 261 Ga. 567 (2) (407 SE2d 735) (1991)
(admission of defendant’s notebook containing references to occult proper
where defendant told witness he hoped to become a vampire and had wanted to
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drink the victim’s blood and keep his head). Agent Brunner in fact affirmatively
conceded that she had discovered no such nexus, testifying on crossexamination that she had contacted an expert on satanic rituals as part of her
investigation but was unable to link any of the evidence surrounding the murder
with any such ritual. Compare Corza v. State, 273 Ga. 164, 166 (2) (539 SE2d
149) (2000) (evidence of appellant’s gang membership admissible where
witnesses described “ritualistic gestures” believed to be gang signs appellant
made immediately after shooting); McIntyre, supra at 8 (1) (evidence of satanic
ritual performed over victim’s body).
In addition, in the numerous cases such as those cited above in which we
have upheld the admission of evidence of a defendant’s association with an
“unsavory” organization or ideology, there was actual evidence adduced at trial
affirmatively linking the defendant to the organization or ideology in question.
Here, by contrast, nothing in the evidence adduced explicitly referenced
satanism or “gothic” beliefs or subculture, and there was no testimony actually
linking the inscriptions and other evidence in question to any such ideology;
rather, that link was forged only via the State’s opening statement and closing
argument, which itself was improper. See Sumlin v. State, 283 Ga. 264, 266 (2)
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(658 SE2d 596) (2008) (prosecutor “improperly injected new evidence” during
closing argument); Alexander v. State, 270 Ga. 346 (2) (509 SE2d 56) (1998)
(prosecutor’s description of defendant’s alleged gang ties in opening statement
held reversible error where no evidence of such presented at trial).
In sum, “one is left with the feeling that the [evidence in question] was
employed simply because the jury would find these beliefs morally
reprehensible.” Dawson v. Delaware, 503 U.S. 159, 167 (112 SC 1093, 117
LE2d 309) (1992) (finding improper the admission of evidence of defendant’s
membership in organization called “the Aryan Brotherhood”). In admitting this
evidence, which bore no specific connection with the crime and operated merely
to impugn appellant’s character by suggesting she held satanic beliefs, the trial
court abused its discretion. Both because the nature of this evidence was highly
inflammatory, and because the evidence of appellant’s guilt was entirely
circumstantial and not overwhelming, “‘we cannot say that it is highly probable
that the error did not contribute to the jury’s verdict.’ [Cit.]” Lindsey v. State,
282 Ga. 447, 450 (2) (651 SE2d 66) (2007) (applying harmless error standard
12
for nonconstitutional error).4
3. We find appellant’s remaining enumerations unlikely to recur on retrial
and thus decline to address them. See Ward v. State, 288 Ga. 641 (5) (706 SE2d
430) (2011).
Judgment reversed. All the Justices concur.
“Having reversed the judgment under the nonconstitutional harmless error
test we do not reach [appellant’s contention that] the error here is of constitutional
magnitude.” Johnson v. State, 238 Ga. 59, 62 (230 SE2d 869) (1976).
4
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