Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

March 13, 2023.

Behl v. State, No. S23A0377, 2023 WL 2374181 (Ga. Mar. 7, 2023)
#felony murder #homeless encampment #access to discovery #sigmuend freud
Edward Behl appeals convictions for felony murder and a weapons charge stemming from the death of Joseph Billings, a fellow resident of a homeless encampment.

Behl argues for a new trial on the grounds that

  • (1) the trial court plainly erred in not charging the jury on voluntary manslaughter, and

  • (2) Behl was unable to view digital discovery while incarcerated and while exercising the right to self-representation.

We conclude that the trial court did not plainly err in failing to charge the jury on voluntary manslaughter, and that Behl did not preserve the issue of access to discovery. Accordingly, we affirm.

The evidence at trial showed that Behl moved into a homeless encampment in Chatham County in January 2017. On the evening of January 9, 2017, Behl, Billings, and other residents of the camp were drinking beer by a campfire. Later that night, Behl was observed touching Billings's penis and kissing him, while Billings was passed out.

The next morning, another encampment resident informed Billings about what had happened the previous night. Billings and Behl engaged in a physical altercation as a result, but other residents were able to separate the two. Behl moved to another location nearby.

Billings and another resident twice left the camp and went to the store that day. When Billings and the other resident returned to the camp the second time, they encountered Behl. Billings and Behl began to argue again about the previous evening, swearing and calling each other names. Behl convinced Billings to come to Behl's tent, then fatally stabbed Billings in the neck.

1. Behl argues that the trial court plainly erred in failing to instruct the jury on voluntary manslaughter. We disagree.

Behl requested a jury charge on voluntary manslaughter. At the charge conference, the trial court indicated it was disinclined to give such an instruction, citing “a substantial cooling-off period.” The trial court ultimately did not give the voluntary manslaughter charge, although it did give instructions on justification and self-defense. Behl's only objection to the jury charge at the time that it was given was “the failure to charge my involuntary.”

Behl concedes on appeal that failure to object to the omission of an instruction on voluntary manslaughter from the charge as given means that we review that omission from the instruction only for plain error. Behl's claim fails because there was no obvious error in failing to charge on voluntary manslaughter.

“Even slight evidence showing that the victim seriously provoked the defendant requires the trial court to give a requested charge on voluntary manslaughter.” Dugger v. State, 297 Ga. 120, 124 (7) (2015). Behl argues that a voluntary manslaughter instruction was justified by the “heated arguments and physical beatings” that preceded the stabbing, such that Behl “had a reasonable fear of some danger from” Billings. But “neither fear that someone is going to pull a [weapon] nor fighting are the types of provocation [that] demand a voluntary manslaughter charge.” Smith v. State, 296 Ga. 731, 737 (3) (2015). And “it is well established that words alone, regardless of the degree of their insulting nature, will not in any case justify the excitement of passion so as to reduce the crime from murder to manslaughter [when] the killing is done solely on account of the indignation aroused by use of opprobrious words.” Hudson v. State, 308 Ga. 443, 446 (2) (a) (2020). Moreover, “[t]o warrant a jury charge on voluntary manslaughter, there must be at least slight evidence that the accused was so influenced and excited that he reacted passionately rather than simply in an attempt to defend himself.” Collins v. State, 312 Ga. 727, 739 (6) (2021). Here, Behl offers no evidence that Behl “was angry or mad or ... had any other response showing [Behl] might have reacted passionately” as opposed to acting based on fear or in self-defense. See id. at 740 (6).

Behl argues that a voluntary manslaughter instruction was required because the jury “could have inferred that the name calling, heated arguments, and physical beatings[ ] were a result of a fundamental element of ... Behl's identity — homosexuality.” But Behl points to no evidence that Billings made any particular remarks or slurs targeting Behl's sexual orientation.

It was not at all obvious that a voluntary manslaughter instruction was required on this record. Therefore, the trial court did not plainly err in failing to give one.

2. Behl also argues that the Georgia constitutional right to due process was violated when, while acting pro se, Behl was prevented from viewing discovery due to being incarcerated. We conclude that this claim of error was not preserved.

Charged with malice murder and other offenses, Behl was represented by the public defender's office until about two months before trial, when counsel successfully moved to withdraw and Behl was given permission by the court to self-represent.

The record indicates that, prior to counsel withdrawing, the State provided to Behl's counsel a number of discs containing digital evidence, including photographs, police body-worn camera footage, and audio-and/or video-recorded statements, filing those items with the trial court. At the August 6, 2019, hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the trial court warned Behl that Behl was “not going to get any extra time to prepare” and would “have less of a chance to investigate things and research [Behl's] case in advance” by proceeding pro se. During a discussion about a prior case of Behl's that the State planned to introduce for sentencing purposes, the public defender represented that “[i]f it's a question as to prior representation, I believe I have that information and I can provide that to [Behl] through discovery[.]” The public defender then represented that he would give Behl “all of the discovery,” upon which the trial court asked Behl whether Behl was “comfortable knowing you're going to get all of that information and have access to it through all of the discovery materials,” and Behl responded, “Yeah, once I get the replacement copy.” When Behl asked about what options might be available in the event that Behl were not provided necessary resources, the trial court responded, “If you feel like you're being denied resources that you're constitutionally entitled to, then you can file a motion in that respect.” In an order entered on September 20, 2019, the trial court directed the sheriff, his deputies, and the staff at the Chatham County Detention Center to give Behl “priority access to the law library and legal research materials at the jail” so that Behl could prepare for trial.

A brief in support of the amended motion for new trial filed by appellate counsel claimed that, after electing self-representation, Behl was unable to review any of the discs provided in discovery. The brief also represented that “[t]he Chatham County Detention Center does not permit pro se inmates to review discovery contained on DVDs and CDs.” For this proposition, the brief cited an attached document purportedly approved by the Chatham County sheriff that does not appear to address whether pro se defendants may examine such materials. A hearing on the motion was held, but Behl introduced no evidence.

The trial court denied the motion for new trial, finding that “the bulk of” the State's discovery was disclosed to Behl on August 16, 2017, nearly two years before Behl elected self-representation, such that Behl was able to review the materials with prior counsel. The trial court noted that Behl acknowledged awareness of the discovery at the Faretta hearing. The trial court stated that the Chatham County jail “does not allow inmates to review discovery contained on DVDs or CDs” but noted that in other cases the court had permitted pro se defendants to view video recordings provided in discovery in open court as part of their trial preparation. The court also wrote that the paper discovery materials in Behl's possession referenced the digital materials, yet Behl did not ask the court for assistance in reviewing them.

Behl claims that the inability to review all of the discovery materials while self-represented and incarcerated amounted to a due process violation. The State argues that this claim fails for various reasons, including that the claim is untimely, that Behl has not shown that any state action caused any inability to review discovery materials, and that Behl has not demonstrated prejudice from any such inability. Without reaching the merits of Behl's claim, we agree that this claim was waived.

The Georgia Constitution provides that “[n]o person shall be deprived of life, liberty, or property except by due process of law.” Ga. Const. of 1983, Art. I, Sec. I, Para. I. But a due process claim such as this must be asserted in a timely fashion. 

Here, Behl points to no instance prior to or during trial in which Behl raised with the State or the trial court any issue with the ability to access the materials in question, and we have found none in the record. Behl filed no motion seeking access to the materials — despite the trial court having explained to Behl that filing a motion was an option if Behl were denied necessary resources. Behl did not seek a continuance to review the materials in the courtroom. Behl did not object to the admission of any testimony or other evidence — including photographs and the one digital recording, body-worn camera footage, that was admitted at trial — on the basis that Behl had not been able to review any digital materials. And Behl does not contest the trial court's finding that Behl was aware that the materials had been provided in discovery. Indeed, the record shows that the State filed a list of “all discoverable material,” including references to audio and video recordings, with the trial court on August 16, 2017, nearly two years before Behl was granted the ability to proceed pro se.

Under these circumstances, we conclude that Behl waived any claim of a violation of due process based on any inability to access the materials in question. 

Walsh v. Bowen, No. A22A1590, 2023 WL 2443165 (Ga. Ct. App. Mar. 10, 2023)
#inter vivos gifts #releasing control of funds #death bed
This case concerns whether Rick Walsch, on his death bed, succesfully made inter vivos gifts of funds to educational savings accounts (the “529 accounts”) owned by his wife, Alice Walsh, for the benefit of her granddaughters. See 26 USC § 529; OCGA § 20-3-630 et seq. Court of Appeals finds it’s at least a jury question.

The only issue on appeal is whether there is evidence of a delivery of the gift during Rick Walsh's lifetime sufficient to defeat a motion for partial summary judgment filed by Kimberly Bowen, the executor of his estate. Because there is evidence that Rick Walsh took actions indicating that he renounced his dominion over the funds and transferred that dominion to Alice Walsh, a jury could find that there was a constructive delivery of the gift. So summary judgment is not appropriate, and we reverse the superior court's grant of Bowen's motion.

1. Facts and procedural history.

So viewed, the record shows that on various occasions over the course of several years, Rick Walsh stated his desire to use funds from a brokerage account he held with Raymond James & Associates to set up and fund 529 accounts for the granddaughters of his wife, Alice Walsh. After being hospitalized with several significant medical problems, Rick Walsh took steps to open the 529 accounts with Alice Walsh as the accounts’ owner. See OCGA § 20-3-632 (2) (defining the “account owner” as the person or entity who “establishes a[n educational] savings trust account ... on behalf of a beneficiary”). He spoke on the telephone with persons at Raymond James and verbally authorized the transfer of funds from his brokerage account to the 529 accounts.

But before it would transfer the funds, Raymond James also required Rick Walsh to sign a written letter of authorization. Rick Walsh, who was hospitalized at the time, expressed frustration upon learning this, as explained by Alice Walsh who testified:

I took [the letter of authorization] to Rick and told him when I got in there, I said, Rick, you've got to sign this LOA and he said, I've already told Mark [his Raymond James broker] what to do. I said, I understand that you've given him verbals all the time, but for this you've got to [sign this] LOA. So he signed the LOA and that [was] when he was complaining about Mark. He said, this ticks me off with Mark. He said, I told him to do this months ago and he should have already had this done. It should be complete.

Alice Walsh further testified that Rick Walsh was “upset with Mark because this should have been done months ago[.]”

Alice Walsh gave Rick Walsh a letter of authorization that Raymond James had sent her. That letter stated: “Please use this letter as authorization to issue a check to the American Funds for $50,000/split 50/50 FBO of [the granddaughters] from my account ...,” identifying his brokerage account by name and number. Rick Walsh signed the letter on July 21, 2015 and then gave it to Alice Walsh, who placed it in her purse.

On July 24, 2015, Alice Walsh learned that Raymond James had not yet transferred the funds because it had not received the letter of authorization. But Rick Walsh, who was mere days from death at that point, asked Alice Walsh not to leave his hospital bedside. Consequently, Alice Walsh did not send the letter to Raymond James at that time.

Rick Walsh died on July 26, 2015. The next day, Alice Walsh faxed the letter of authorization to Raymond James. Raymond James issued a check to the 529 accounts, but later reversed that transfer upon learning that Rick Walsh had died before Raymond James received the letter of authorization.

In proceedings before the probate court, Rick Walsh's executor, Bowen, petitioned for a settlement of accounts, alleging that several purported inter vivos gifts, including the transfer of funds to the 529 accounts, were estate property. After a hearing, the probate court entered an order approving Bowen's petition and granting her attorney fees and costs against Alice Walsh. Among other things, the probate court held that “there was no completed delivery of the alleged gift [of funds to the 529 accounts].” The probate court also found that Rick Walsh lacked the necessary mental capacity to make the gifts and that Alice Walsh exerted undue influence over him.

Alice Walsh brought a de novo appeal from this ruling in superior court. See OCGA § 5-3-2 (a), § 5-3-29. Bowen moved for partial summary judgment as to the alleged gifts to the 529 accounts. The superior court granted Bowen's motion, finding that there were no inter vivos gifts as a matter of law because Rick Walsh had not completed the delivery of the intended gifts in his lifetime. Alice Walsh appeals.

2. Analysis.

  • An inter vivos gift operates “in the donor's lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect.” Longstreet, 312 Ga. App. at 5 (2).

  • A valid inter vivos gift must meet three statutory criteria:

    1. “(1) The donor must intend to give the gift;

    2. (2) The donee must accept the gift; and

    3. (3) The gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.” OCGA § 44-5-80.

Delivery may be actual or constructive, see OCGA § 44-5-82, but “[t]o be effective, delivery must be made during the donor's lifetime.” Longstreet, 312 Ga. App. at 5 (2).

This appeal concerns only the third criterion: actual or constructive delivery made during the donor's lifetime. Although Bowen also challenges Rick Walsh's donative intent, she concedes for purposes of summary judgment that a factual dispute exists on that issue. And a donee's acceptance is presumed in cases involving gifts of substantial benefit. See OCGA § 44-5-81.

Alice Walsh argues that there is evidence of constructive delivery during Rick Walsh's lifetime that precludes summary judgment. “Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.” OCGA § 44-5-82. See Smith v. Tibbits, 359 Ga. App. 362, 370-371 (2) (2021). A jury may infer delivery from a donor's acts, and whether those acts indicate a renunciation of dominion sufficient to effect constructive delivery is generally a question of fact.

We agree with Alice Walsh that a jury could infer from the evidence in this case that Rick Walsh renounced his dominion over the funds and transferred that dominion to Alice Walsh, the owner of the 529 accounts, when he signed the letter authorizing the transfer and gave that letter to Alice Walsh. There is evidence that, given Rick Walsh's physical condition at the time, he took every step he could to immediately and irrevocably transfer dominion of the gift to Alice Walsh. He arranged for the creation of the 529 accounts. He instructed Raymond James verbally to transfer the funds. Then, when told that he also needed to sign a letter of authorization, he did so. Unable to deliver that letter to Raymond James himself, he gave the letter to Alice Walsh, who as the owner of the accounts was effectively the donee, see OCGA § 20-3-634 (b) (3) (noting that the owner of a 529 account has the power to redirect the funds in the account to other beneficiaries of the owner's choice), thereby giving her the means to complete the delivery of the gift without any further action on his part. Finally, he expressed his desire that the transfer be completed immediately.

We are not persuaded by Bowen's argument that, as a matter of law, Rick Walsh's act of signing the written authorization and giving it to Alice Walsh did not constitute a renunciation of his dominion over the funds because he could have revoked that transaction. There can be no constructive delivery of a gift unless it is “beyond the power of the donor to revoke the gift.” Brooks v. Brooks, 54 Ga. App. 276, 278 (1936). Nevertheless, Georgia appellate courts have found the existence of a jury question on constructive delivery in cases where the donor retained possession of, access to, or the ability to control the property.

The cases cited by Bowen in support of her revocation argument are inapposite. None involve evidence that the donor intended his acts to effect an immediate, irrevocable delivery of the gift to the donee by giving the donee the means of accomplishing that delivery.

  • See Rogers v. Carter, 177 Ga. 605 (1933) (the donor gave the gift to a third party to deliver to the donee, but before the third party did so the donor retrieved the gift and died before returning the gift to the third party);

  • Helmer v. Helmer, 159 Ga. 376 (1924) (the gift was a reduction in an amount of money that the donee owed the donor, which was reflected by the donor's endorsement on a note that remained at all times in the possession of a third party, the donor's attorney);

  • Knight v. Jackson, 156 Ga. 165 (1923) (the donor gave the gift to a third party, not intending that it be immediately delivered to the donee);

  • NeSmith v. Ellerbee, 203 Ga. App. 65 (1992) (the donor did not intend to make a gift during his lifetime);

  • Ansley, supra, 176 Ga. App. 693 (the donor had set in motion the purchase of a gift for the donee but died before that purchase occurred).

Moreover, none of the cases cited by Bowen for this argument involve a gift between a donor and a donee who are family members living in the same household, as were Rick and Alice Walsh. In such circumstances, “the rule as to delivery of a gift is not so strictly applied [and] the law in such cases accepts as delivery[ ] acts which would not be so regarded when the transactions are between strangers living in different places.”

  • Fotiatis v. Clemmons, 134 Ga. App. 487, 488 (1) (1975).

  • See Harrison, 213 Ga. App. at 343-344 (1), (2), 444 S.E.2d 618 (holding that, in determining whether a donor completely relinquished control over a gift, “the jury may consider that the rules as to delivery are relaxed where the donor and donee are members of the same family and reside in a common residence,” and citing evidence of a hospitalized donor's physical inability to perfect actual delivery of a gift to a family member residing in his household as support for a finding that there was constructive delivery of the gift).

In summary, although Bowen advocates for a bright-line rule, the constructive delivery determination is fact-driven and generally a question for the jury. And a jury could infer in this case that there was “no other purpose,” Culpepper v. Culpepper, 18 Ga. App. 182, 183 (1916), in Rick Walsh's acts than to irrevocably renounce dominion over the funds and transfer that dominion to Alice Walsh by taking every step he could to effect the transfer and giving Alice Walsh the ability to complete the delivery of the gift.

  • See id. (involving a donor who was himself physically unable to deliver the gift);

  • Banks v. Harvey, 98 Ga. App. 196, 196-197 (1) (1958) (finding evidence that the donor gave the donee keys to personal property and declared that he was giving the property to the donee was “sufficient evidence to sustain a finding that there has been a constructive delivery of the [property]”).

For these reasons, we find that a jury question exists regarding whether there was a constructive delivery of the gift within Rick Walsh's lifetime. This jury question precludes the grant of partial summary judgment to Bowen. Consequently, we need not address Alice Walsh's alternative arguments regarding whether there was an actual delivery of the gift within Rick Walsh's lifetime.

Judgment reversed.