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Defendant was convicted of the malice murder and aggravated assault of his wife and sentenced to life in prison. Defendant appealed the denial of his motion for a new trial, asserting that the trial court erred by admitting similar transaction evidence and evidence of statements made by the victim regarding prior difficulties. The court concluded that any prejudice from the age of the similar transactions evidence at issue was outweighed by the probative value of the evidence. The court also concluded that there was no error in admitting the testimony of defendant's cell-mate because the evidence was sufficient to establish the required similarity between the charged crimes and the attack on the cellmate and was probative of defendant's bent of mind and course of conduct. The court did not err in permitting several witnesses to testify about the statements the victim made pertaining to prior difficulties between defendant and the victim where the hearsay testimony was either admissible under the necessity exception to the hearsay rule or its admission constituted harmless error. Accordingly, the court affirmed the judgment.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: April 24, 2012
S12A0322. McNAUGHTON v. THE STATE.
Appellant Alec McNaughton was convicted of the malice murder and
aggravated assault of his wife, Cathy McNaughton, and sentenced to life in
prison.1 He appeals from the denial of his motion for new trial asserting the trial
court erred by admitting similar transaction evidence and evidence of statements
made by the victim regarding prior difficulties. Finding no error, we affirm.
1. Viewed in the light most favorable to the verdict, the jury was
authorized to find that appellant fatally stabbed his wife in the torso, arms and
The crimes occurred on February 15, 2009. Appellant was indicted by a Coweta
County grand jury on July 16, 2009, on charges of malice murder, felony murder, and
family violence aggravated assault. He was tried on August 2-10, 2010 and found guilty
of all counts. Appellant was sentenced to life in prison on the malice murder count. The
felony murder and aggravated assault convictions were merged and vacated by operation
of law. See Gresham v. State, 289 Ga. 103 (6) (709 SE2d 780) (2011); Malcolm v. State,
263 Ga. 369, 373-374 (434 SE2d 479) (1993). A motion for new trial was filed on
August 31, 2010 and amended on August 19, 2011 and August 23, 2011. The trial court
denied the motion for new trial on August 30, 2011. Appellant filed a notice of appeal on
September 9, 2011. The appeal was docketed to the January 2012 term of this Court and
orally argued on February 6, 2012.
legs 31 times as she sat in the office of their Coweta County home. The State
presented evidence that appellant and the victim had been experiencing financial
and marital difficulties, and on at least one prior occasion appellant physically
abused the victim. The victim created a written statement documenting the
details of that event and she told a co-worker she had taken photographs of her
physical injuries which she kept in a “safe place.” In the months leading up to
her death, the victim told appellant, family members, and friends she was
On the day of the crimes, appellant called 911 at approximately 7:30 p.m.
He told the operator he found his wife on the floor bleeding. When police
arrived, the victim was already dead, rigor mortis and lividity already having set
in. There was no evidence of a burglary or forced entry. Police discovered
evidence of the victim’s blood on tissues from the office and a towel found in
the victim’s bathroom near a bottle of bleach. Although there was a significant
amount of blood on the carpet and splattered on the walls of the victim’s office,
other than the trace elements on the towel and tissues, no blood evidence was
found outside the victim’s office or leading into other parts of the home.
Appellant told officers he last saw the victim at 11:00 a.m. when he left
home to meet his mother in Sandy Springs, Georgia. He also claimed he was in
Sandy Springs until he returned home to Coweta County that evening and found
his wife dead. Evidence established, however, that appellant called his home
telephone at 2:33 p.m. from his cellular telephone. Experts testified the call was
routed through a cellular tower only two miles from appellant’s home and could
not have originated anywhere near Sandy Springs. In addition, a neighbor
testified he saw a vehicle matching the description of appellant’s vehicle leaving
the victim’s home between 2:00 and 3:00 p.m. on the day of the crimes.
Construed in the light most favorable to the verdicts, we find the evidence
was sufficient to enable a rational trier of fact to find appellant guilty beyond a
reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant contends the trial court erred by admitting similar transaction
evidence which, he argues, was inadmissible because the incidents were not
sufficiently similar or were too remote in time to be admissible at trial. See
Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991). The trial
court determined the challenged evidence was admissible for the purpose of
showing appellant’s course of conduct and bent of mind. We review the trial
court's decision to admit similar transaction evidence under an abuse of
discretion standard and review the court’s factual findings as to the similarity
of the incidents under a clearly erroneous standard. Pareja v. State, 286 Ga. 117,
121 (686 SE2d 232) (2009); Tatum v. State, 297 Ga. App. 550 (1) (677 SE2d
(a) Three of the challenged similar transactions involved incidents in
which appellant perpetrated acts of violence against his then-wives. As in the
present case, each of these similar transactions involved unprovoked acts of
violence by appellant against his spouse during times of marital difficulty and
at times when the women sought to separate or divorce.2 “[I]n cases of domestic
violence, prior incidents of abuse against family members or sexual partners are
more generally permitted because there is a logical connection between violent
Appellant’s first wife, Linda Jones, testified that at the end of her marriage to
appellant he slapped, badgered and threatened her, and demanded she have intimate
relations with him. When she refused, appellant beat her severely with his fist and a
bottle. Appellant’s second wife, Linda McCasland, testified that after they separated,
appellant came to where she was staying to retrieve personal items. When she refused to
allow him to look through the home, he grabbed her and threw her over a glass table,
causing bruises. Susan Knox, appellant’s third wife, testified that while they were
separated, appellant became very angry over their daughter’s phone bill. In the middle of
the night, appellant disconnected the home’s phone line, loaded a shot gun, and when
confronted by Knox said he was going to kill their daughter, kill Knox, and then kill
himself. The daughter called police from her cell phone.
acts against  different persons with whom the accused had a similar emotional
or intimate attachment. (Footnote omitted.) [Cit.]” Hall v. State, 287 Ga. 755,
757 (699 SE2d 321) (2010). Based on the evidence establishing the similarity
between the crimes charged and the violent acts perpetrated by appellant against
his former spouses, we find no abuse of the trial court’s discretion by admitting
evidence of these similar transactions.
We are not persuaded by appellant’s argument that the lapse in time
between the similar transactions and the charged crimes required exclusion of
this evidence. As a general rule, the lapse in time goes to the weight and
credibility of the evidence, not to its admissibility at trial. Hinton v. State, 280
Ga. 811 (6) (631 SE2d 365) (2006). When the lapse in time is especially great,
however, courts must consider whether evidence of the similar transaction is so
remote in time that any value it might have had cannot overcome the prejudice
to the defendant. Although in such cases the passage of time is “one of the more
important factors to weigh in considering the admissibility of the evidence in
question, it is not wholly determinative." (Citation omitted.) Mullins v. State,
269 Ga. 157, 158 (2) (496 SE2d 252) (1998).
Given the strong similarities in this case between the charged crimes and
the incidents at issue, the purpose for which the evidence was offered, the fact
that there was no break in the course of conduct which the State argues the
evidence establishes, and the presence of sufficient evidence corroborating the
similar transactions, including police reports, 911 audiotapes, and appellant’s
own admissions, we conclude any prejudice from the age of these similar
transactions was outweighed by the probative value of the evidence. See Pareja,
supra, 286 Ga. at 119-121. See also Hall, supra, 287 Ga. 755 (2) (evidence of
13- and 15-year-old similar transactions admissible); Phillips v. State, 287 Ga.
560 (4) (697 SE2d 818) (2010) (evidence of 18-year-old similar transaction
admissible); Wright v. State, 259 Ga. App. 74 (1) (576 SE2d 64) (2003)
(34-year-old similar transaction evidence admissible); Bryson v. State, 210 Ga.
App. 642 (2) (437 SE2d 352) (1993) (31-year-old similar transaction evidence
admissible). Compare Slakman v. State, 272 Ga. 662, 669 (533 SE2d 383)
(2000) (absence of evidence that defendant abused second wife created
“significant break in the ‘course of criminal conduct’” affecting admissibility
of similar transaction evidence).
(b) Appellant also contends the court erred by admitting the testimony of
Jose Cruz-Hernandez, appellant’s cell-mate while awaiting trial in this case,
regarding an incident in which appellant stabbed Cruz-Hernandez in the neck
with a pencil. Appellant contends this prior transaction was not sufficiently
similar because it involved a different weapon used against an individual
appellant barely knew.
The record demonstrates that while incarcerated and awaiting trial in
Coweta County, appellant crept behind Cruz-Hernandez and stabbed him in the
neck. This incident, like the attack on the victim in this case, involved an
unprovoked, surprise attack with a sharp instrument. Although it may have
involved an attack on a cell-mate rather than a family member and a pencil
rather than a knife or other sharp instrument as in the crimes before us, “[w]hen
considering the admissibility of similar transaction evidence, the proper focus
is on the similarities, not the differences, between the separate crime and the
crime in question. [Cits.]” (Punctuation omitted.) Phillips, supra, 287 Ga. at
564. Because the evidence was sufficient to establish the required similarity
between the charged crimes and the attack on Cruz-Hernandez and was
probative of appellant’s bent of mind and course of conduct, the trial court did
not abuse its discretion by admitting evidence of this similar transaction.
3. During trial, the court permitted several witnesses to testify about
statements the victim made pertaining to prior difficulties between appellant and
the victim.3 Appellant argues this hearsay evidence was inadmissible both
because its admission violated his rights under the Confrontation Clause and
because it did not fall within Georgia’s necessity exception to the hearsay rule.
See OCGA § 24-3-1 (b).
(a) None of the hearsay statements challenged by appellant were
testimonial in nature in that they were made by the victim to a family member,
friend, or co-worker before the commission of the crimes with no expectation
that they would be used in a trial. See Crawford. v. Washington, 541 U. S. 36
(124 SC 1354, 158 LE2d 177) (2004); Bell v. State, 278 Ga. 69 (2) (597 SE2d
350) (2004). Because the challenged evidence was non-testimonial, appellant’s
right to confrontation was not implicated.
(b) Appellant also argues hearsay evidence of the victim’s statements was
improperly admitted under the necessity exception to the hearsay rule. See
The trial court allowed the State to present this evidence through the testimony
of eight witnesses: Michelle and Heather Mendenhall, the victim’s daughters; Linda
Mascarenhas, the victim’s sister; Jerome Langford, a co-worker of the victim; Dan
Mayer, the victim’s work supervisor; Sonya Lawrence, the victim’s hairdresser; Leigh
McNaughton, appellant’s sister; and Sandra Harmon, a mental health nurse who treated
OCGA § 24-3-1 (b). There are three basic requirements for non-testimonial
hearsay evidence to be admissible under the necessity exception: (1) the
declarant is unavailable; (2) the declarant’s statement is relevant to a material
fact and is more probative as to that fact than other evidence that may be
procured and offered; and (3) the statement exhibits particularized guarantees
of trustworthiness. Evans v. State, 288 Ga. 571, 572 (2) (707 SE2d 353) (2011).
The first and second requirements for admissibility, unavailability of the
declarant and materiality and probativeness, were met with respect to the
hearsay testimony of each of the challenged witnesses. Unavailability was met
because the declarant, the victim, was deceased. Watson v. State, 278 Ga. 763
(2) (a) (604 SE2d 804) (2004). Materiality and probativeness were met because
the statements were relevant to show appellant’s motive, intent, and bent of
mind, as well as the relationship between appellant and the victim. Id.
Whether a trial court abused its discretion by finding the third
requirement, particularized guarantees of trustworthiness, has been met demands
consideration of the totality of the circumstances surrounding the making of the
Culmer v. State, 282 Ga. 330 (2) (647 SE2d 30) (2007).
Accordingly, we review this requirement separately as to each of the challenged
Michelle and Heather Mendenhall. Michelle Mendenhall testified her
mother, the victim, told her appellant had choked her on a previous occasion and
she planned to seek a divorce. Michelle stated she was very close with her
mother, who had been her primary care giver. Heather Mendenhall similarly
testified her mother told her she had been injured in an altercation with appellant
during which he pulled her by the hair and dragged her out of her car. Like her
sister, Heather testified she was good friends with her mother, her mother
confided in her regularly, they spoke daily, and they discussed personal matters.
We conclude the hearsay testimony of Michelle and Heather Mendenhall
was admissible. The uncontradicted statements exhibited particularized
guarantees of trustworthiness because the evidence showed these witnesses had
a close familial relationship with the victim and she regularly confided in them
about personal matters. A trial court does not abuse its discretion by finding
guarantees of trustworthiness where the declarant made statements to a close
family member, placed confidence in the witness, and turned to the witness for
help with personal problems. See Tuff v. State, 278 Ga. 91 (2) (597 SE2d 328)
Linda Mascarenhas. Mascarenhas, the victim’s sister, testified the victim
told her that during an argument, appellant pulled her out of her car by her hair,
hit her, and dragged her across their driveway into their garage. The victim also
stated she feared appellant was going to kill her, and she planned to divorce him.
With regard to her relationship with the victim, Mascarenhas testified they were
very close and they discussed life events with each other. These statements
exhibited particularized guarantees of trustworthiness because the victim and
Mascarenhas were close family members, and they frequently discussed
personal matters. See Tuff, supra, 278 Ga. at 93. In addition, Mascarenhas’
testimony regarding the victim’s altercation with appellant in the driveway was
cumulative of other legally admissible evidence, and therefore, any error in the
admission of this testimony was harmless. See Brooks v. State, 281 Ga. 514 (4)
(640 SE2d 280) (2007).
Sonya Lawrence. Sonya Lawrence testified the victim told her she
intended and was making arrangements to separate from appellant and force him
to move out of their home. Lawrence further stated she had been the victim’s
hairstylist and friend for three years, they spoke on the telephone and in person
on a regular basis, and they were confidantes who frequently spoke about
personal events. This Court consistently has held that hearsay testimony by
close, personal friends of the declarant with whom the declarant shared personal
confidences is admissible under the necessity exception. See Watson, supra,
278 Ga. at (2) (a). Based on the evidence in this case, we conclude Lawrence’s
testimony concerning the victim’s statements was admissible. See Tuff, supra,
278 Ga. at 93.
Sandra Harmon and Dan Myer. Sandra Harmon is a certified mental
health nurse who provided employee counseling services. She testified the
victim came to see her to complain of a domestic violence incident involving
appellant. The victim stated appellant grabbed her, threw her onto their
driveway pavement, kicked and hit her, and threatened to kill her. After
recounting this incident, the victim asked Harmon to take photographs to
document her injuries, which Harmon did. Dan Myer, the victim’s work
supervisor, testified that on one occasion, after missing five days of work, the
victim returned and described how appellant beat her in their driveway and
garage. She also told Myer she took pictures of her injuries after the beating.
With respect to his relationship with the victim, Myer stated he was the victim’s
supervisor and he spoke with the victim regularly.
Although the record does not show the victim was particularly close with
either Harmon or Myer, the victim’s statements about which these witnesses
testified exhibited particularized guarantees of trustworthiness. The statements
were part of spontaneous exchanges between the victim and the witnesses, the
victim had no reason to lie to the witnesses, and the victim’s statements about
the altercation were corroborated by her visible injuries. See Cawthon v. State,
289 Ga. 507, 509 (2) (c) (713 SE2d 388) (2011). Considering the totality of the
circumstances, we find no abuse of discretion in admitting this hearsay
testimony under the necessity exception.
Leigh McNaughton. Leigh McNaughton, appellant’s sister, testified the
victim told her appellant was draining her finances and she intended to divorce
him if it continued. She also stated the victim showed her photographs of
herself with bruises and swelling. Leigh did not testify as to her relationship
with the victim, other than to state that she knew the victim because she was her
brother’s wife and had spent holidays with the family. Even assuming the lack
of evidence pertaining to this witness’ relationship with the victim failed to
provide the necessary guarantees of trustworthiness, we conclude admission of
this evidence was harmless because Leigh’s testimony was cumulative of other,
legally admissible evidence. See Brooks, supra, 281 Ga. at 518 (4); Myers v.
State, 275 Ga. 709, 713 (2) (572 SE2d 606) (2002). Specifically, the victim’s
adult daughters and sister testified the victim stated she intended to divorce
appellant, and Lawrence testified the victim told her she intended to force the
appellant to move out of their home. In addition, Harmon testified regarding the
photographs of the victim’s injuries and appellant admitted he had an altercation
with the victim that caused the injuries exhibited in the photographs.
Jerome Langford. We similarly conclude there was no harmful error in
the admission of Langford’s testimony. Langford, who worked with the victim,
testified the victim told him she intended to divorce appellant and would ensure
appellant would not receive any more money from her. He offered testimony
establishing that he had worked with the victim for almost two years, their
cubicles were side by side, they were close friends, and he remained in contact
with the victim after they stopped working together. While the admission of this
witness’ hearsay testimony may present a close question as to admissibility, we
need not address this issue because, like the testimony of Leigh McNaughton,
Langford’s testimony was cumulative of other properly admitted evidence. See
Brooks, supra, 281 Ga. at 518; Myers, supra, 275 Ga. at 713.
For the specific reasons stated above, we find all of the hearsay testimony
challenged in this enumeration of error was either admissible under the necessity
exception to the hearsay rule or its admission constituted harmless error.
Judgment affirmed. All the Justices concur, except Hunstein, C. J., who
concurs in Divisions 1, 2 (a), 3, and in the judgment.