NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: March 7, 2023
S23A0061. ALLABEN v. THE STATE.
ELLINGTON, Justice.
This is the third appearance of this case before this Court.
Twice previously, Dennis Ronald Allaben appealed from a conviction
for malice murder arising from the strangulation death of his wife,
Maureen. On each appeal, we reversed the conviction and remanded
the case, and a retrial ensued. See Allaben v. State, 294 Ga. 315 (751
SE2d 802) (2013) (Allaben I); Allaben v. State, 299 Ga. 253 (787
SE2d 711) (2016) (Allaben II). After Allaben’s third trial was held in
December 2016, a DeKalb County jury found him guilty of malice
murder, and he again appeals.1 Allaben contends that the evidence
1The murder occurred on or about January 3, 2010. The procedural
history of this case, extending from the initial indictment of Allaben on March
31, 2010 through his second appeal, is recounted in Allaben I, 294 Ga. at 315
n.1, and Allaben II, 299 Ga. at 253 n.1. Allaben’s second and third trials
proceeded under a May 2014 re-indictment by a DeKalb County grand jury for
was insufficient to support his conviction for murder and that the
State failed to prove venue as required by OCGA § 17-2-2. For the
reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, the evidence
shows that on Monday, January 4, 2010, Maureen’s co-workers
became concerned because she did not come to work that day and
neither she nor Allaben answered the co-workers’ phone calls. At
lunchtime, the co-workers went to the Allabens’ DeKalb County
house and entered it, but found no one there. Maureen’s minivan
was in the garage, but Allaben’s pickup truck was not at the house.
Around 4:30 p.m. on the same day in Virginia, Allaben’s sistermalice murder and felony murder predicated on aggravated assault. At his
third trial, Allaben was found guilty on both counts. On December 15, 2016,
Allaben was sentenced to life in prison without parole for malice murder, and
the felony murder count was vacated by operation of law. Allaben filed a timely
motion for a new trial, which he amended on October 1 and October 10, 2018,
and on November 14, 2019. After a hearing on November 19, 2019, the trial
court denied the amended motion for a new trial on February 19, 2020, except
for Allaben’s claim that his sentence of life without parole was improper. On
October 27, 2021, the trial court conducted a resentencing hearing and entered
a new sentence of life in prison with the possibility of parole for malice murder. Allaben filed a timely notice of appeal, which he amended on February 1, 2022.
The case was docketed in this Court to the term beginning in December 2022
and submitted for a decision on the briefs.
2
in-law Jill returned from work to her home to find Allaben there
with his and Maureen’s two children. After Jill ordered pizza for the
children, she and Allaben talked privately. Allaben told Jill that
“there had been an accident”; that Maureen had “gotten into some
crazy things,” including making recordings of him that were of a
sexual nature, taking the recordings to others, and poisoning him;
that he “wanted to know the truth” and “wanted her to tell the
truth”; that he was “going to tie her up and use a cloth with ether on
it to put her to sleep so that when she woke up, he would tell her the
truth about what she was doing”; that he “put a cloth with ether over
her mouth and the cloth went too far down”; that it “went down her
throat”; that “she died, that he had killed her”; that “her body was
in the back of the truck”; that he had not called the police or an
attorney; that the children “know that I killed their mother”; that he
had stolen a license plate and removed his phone battery to avoid
being tracked; and that he had thought he was being followed and
about to be arrested, so he told the children during their drive from
Georgia that “he strangled her.” Jill told Allaben to leave, kept the
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children with her, and called the local police. The responding
Virginia police officer, after speaking with Jill and the children,
contacted law enforcement in Georgia, and DeKalb County police
officers performed an investigation at the Allaben home.
Allaben returned to Georgia on January 5 and drove to the
Clayton County home of a former co-worker, who talked with him
for approximately two hours and then accompanied him to
surrender to a neighbor who was a City of Morrow police officer. A
Clayton County officer who responded to a call confirmed that a
human body was in Allaben’s pickup truck, wrapped in a blue
moving blanket that was held in place by duct tape. The Clayton
County Police Department secured the truck until releasing it to a
DeKalb County detective. That detective obtained a search warrant,
stayed with the truck until it was delivered to the DeKalb County
Medical Examiner’s Office, and explained that the body was hidden
by a number of heavy items. Another DeKalb County detective
testified that officers and crime scene technicians again went to the
Allaben house to investigate a homicide, that it was located in
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DeKalb County, and that they found, among other things, a bucket
with different types of tape and a blue moving blanket of the same
type that was wrapped around the body.
The medical examiner observed that the victim’s body was
partially clothed in a black t-shirt and underwear, and her knees
were “bent” and “tucked up” consistent with a sleeping position. She
had many petechial hemorrhages on her face and eyes, a large
hemorrhage underneath her conjunctiva (described by the medical
examiner as “the white part of the eye . . . , the outer white”), and
bruises on her jawbone and neck, including a deep hemorrhage on
her thyroid eminence (“called by most people the Adam’s apple”).
Based on his examination of those injuries, the medical examiner
determined that the cause of death was strangulation, likely by
means of a “sleeper hold,” which is a chokehold technique that police
officers would use as a “submission hold” but that most law
enforcement agencies have forbidden “because a significant number
of people died” as a result of its use. Regarding how long it would
take for strangulation to cause death, the medical examiner testified
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that it would depend on certain variables but could take one to two
minutes or more for the victim to lose consciousness and then
another few minutes for death to occur. According to the medical
examiner, a sleeper hold is not “likely” to cause serious bodily injury,
but has the “potential” to cause such injury. There was alcohol,
Benadryl, and ether in the victim’s system, which did not cause her
death, but which would cause at least some degree of incapacitation
in most people. The medical examiner found no signs of a struggle
and no evidence of a rag in the victim’s throat.
1. Allaben contends that the State failed to present sufficient
evidence to prove him guilty of malice murder beyond a reasonable
doubt under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
LE2d 560) (1979). 2 He concedes that “[i]t is undisputed that Allaben
2 Both times this case was before us previously, we reviewed the evidence
and found it to be constitutionally sufficient. See Allaben I, 294 Ga. at 315-316
(1); Allaben II, 299 Ga. at 254-255 (1). At Allaben’s third trial, the State was
required to present evidence of his guilt again, and because Allaben raised
sufficiency of the evidence, we are required to review the evidence from the
third trial, although the differences between that evidence and the evidence
presented at the first and second trials are very slight. Cf. Welbon v. State, 304 Ga. 729, 730 (1) (822 SE2d 277) (2018) (“[W]hen an appellate court determines
that the evidence is legally sufficient to support a jury’s guilty verdict, but the
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caused Maureen’s death,” but argues that he did not intend to kill
Maureen. Allaben bases this argument on his statements to his
sister-in-law that there had been an accident and that he wanted his
wife to go to sleep and then wake up, and on the medical examiner’s
testimony that the “sleeper” chokehold likely used on her only had
the “potential” to cause serious bodily injury.
In evaluating the sufficiency of the evidence at trial as a matter
of federal due process under Jackson, 443 U. S. at 319, “this Court
considers whether a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Walker v. State, 314
Ga. 390, 394 (2) (c) (877 SE2d 197) (2022). “In performing this
evaluation, we view the evidence in the light most favorable to the
verdicts, leaving to the jury the resolution of conflicts or
inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences to be made from the evidence.” Id. (citation
and punctuation omitted).
case is remanded for reconsideration of a different issue, the sufficiency of the
evidence may not be raised again in a second appeal unless a new trial was
held.”) (emphasis supplied).
7
A person commits the crime of malice murder “when he
unlawfully and with malice aforethought, either express or implied,
causes the death of another human being.” OCGA § 16-5-1 (a).
Express malice is that deliberate intention unlawfully to
take the life of another human being which is manifested
by external circumstances capable of proof. Malice shall
be implied where no considerable provocation appears
and where all the circumstances of the killing show an
abandoned and malignant heart.
OCGA § 16-5-1 (b). In other words, malice may be inferred from
evidence of conduct that demonstrates “such a reckless disregard for
human life as to show an abandoned and malignant heart.” Dozier
v. State, 307 Ga. 583, 585 (837 SE2d 294) (2019) (citation and
punctuation omitted); Jones v. State, 303 Ga. 496, 499 (II) (813 SE2d
360) (2018) (citation and punctuation omitted). “The issue of
whether a killing is intentional and malicious is for the jury to
determine from all the facts and circumstances.” Jones v. State, 314
Ga. 400, 407 (877 SE2d 232) (2022) (citation and punctuation
omitted).
Allaben’s arguments that the evidence showed nothing more
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than an accident and that he only wanted his wife to go to sleep and
wake up do not prevail in this sufficiency analysis because the jury
was authorized to discredit Allaben’s self-serving assertion that
Maureen’s death was an “accident” 3 and indeed was not required to
believe any portion of Allaben’s statements to his sister-in-law that
amounted to a denial of an intent to kill his wife. See White v. State,
303 Ga. 533, 535 (1) (813 SE2d 592) (2018) (“Although [the
defendant] testified at trial that he did not intend to kill [his wife],
the jury was free to conclude otherwise.”). Conversely, the jury was
authorized to credit Allaben’s admissions that he planned to use a
cloth with ether over his wife’s mouth to render her unconscious,
that he strangled or otherwise suffocated her, and that he was
responsible for her ensuing death. See Bush v. State, 267 Ga. 877,
3 OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any
crime committed by misfortune or accident where it satisfactorily appears
there was no criminal scheme or undertaking, intention, or criminal
negligence.” For a defendant to claim accident, there must be evidence that he
“acted without criminal intent, was not engaged in a criminal scheme, and was
not criminally negligent, i.e., did not act in a manner showing an utter
disregard for the safety of others who might reasonably be expected to be
injured thereby.” Kellam v. State, 298 Ga. 520, 523 (2) (783 SE2d 117) (2016)
(citation and punctuation omitted).
9
878 (485 SE2d 466) (1997) (“the jury was entitled to disbelieve the
self-serving part of [the defendant’s] statement and to believe the
[inculpatory] part”).
Moreover, the medical examiner’s testimony shows that
Maureen was strangled by use of a chokehold for a long enough time
to kill her. Allaben’s argument regarding the medical examiner’s
testimony is virtually the same as his argument in Allaben II that
was based on the medical examiner’s testimony in Allaben’s second
trial that “a sleeper hold, generally speaking, is unlikely to cause
death.” Allaben II, 299 Ga. at 254 (1). Although the testimony in the
record now before us was not identical to the testimony at Allaben’s
previous trials, it was very similar. After careful review of the
evidence, we reject Allaben’s argument about the chokehold for the
same reasons that we rejected his similar argument in Allaben II.
The medical examiner’s testimony on which Allaben relies—that the
“sleeper” chokehold that likely was used on Maureen only had the
“potential” to cause serious bodily injury—
did not prevent the jury from concluding that [Allaben]
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utilized [a sleeper hold] with intent to effectuate his wife’s
death. Moreover, the jury heard evidence that the victim:
was only partially clothed; showed no signs of having
defended herself; and was affected by substances that
could have rendered her incapacitated prior to her death.
The jury also heard testimony that [Allaben] utilized a
sleeper hold long enough to kill the victim and leave
innumerable hemorrhages on her face.
Allaben II, 299 Ga. 255 (1). See also Wynn v. State, 313 Ga. 827, 836
(3) (874 SE2d 42) (2022) (“the force involved in strangling a person
to the point of unconsciousness” and tying the person’s hands behind
his back is “simply inconsistent with the lack of intent to kill”)
(citation and punctuation omitted).
Indeed, the jury was authorized to infer from Allaben’s
admissions and the medical examiner’s testimony that Maureen’s
death was not an “accident,” that Allaben’s actions demonstrated a
reckless disregard for human life that showed an abandoned and
malignant heart, and, therefore, that Allaben was acting with
malicious intent. See Jones, 314 Ga. at 406 (2) (holding that the
evidence was sufficient for the jury to reject the defendant’s
assertion of accident and find him guilty of malice murder);
11
Morrison v. State, 300 Ga. 426, 427 (1) (796 SE2d 293) (2017)
(“especially considering that [the defendant’s] own self-serving
statement was the only evidence that [the victim’s] death was
accidental, and considering as well that his hypothesis of accidental
death was not consistent with the forensic evidence, we conclude
that the evidence authorized the jury to find beyond a reasonable
doubt that [the defendant] was guilty of [malice] murder”). We
conclude that the evidence presented at trial and summarized
above, when viewed in the light most favorable to the verdict, was
constitutionally sufficient to authorize a rational jury to find beyond
a reasonable doubt that Allaben was guilty of malice murder. See
Jackson, 443 U. S. at 319; White, 303 Ga. at 535 (1) (evidence of
malicious intent was sufficient where it showed that the defendant
had struck his wife with a hammer multiple times); Sheffield v.
State, 281 Ga. 33, 35 (2) (635 SE2d 776) (2006) (proof that the
defendant manually strangled the victim was ample evidence of
intent to take the victim’s life).
2. Allaben also contends that the State failed to prove that
12
venue was proper in DeKalb County because the State failed to
question its witnesses about when and where Maureen died and
because her body was discovered in Clayton County. We disagree.
With respect to venue generally, “all criminal cases shall be
tried in the county where the crime was committed, except cases in
the superior courts where the judge is satisfied that an impartial
jury cannot be obtained in such county.” Ga. Const. of 1983, Art. VI,
Sec. II, Par. VI. See also OCGA § 17-2-2 (a) (“Criminal actions shall
be tried in the county where the crime was committed, except as
otherwise provided by law.”). Also, “[c]riminal homicide shall be
considered as having been committed in the county in which the
cause of death was inflicted.” OCGA § 17-2-2 (c). If, however, “it
cannot be determined in which county the cause of death was
inflicted, it shall be considered that it was inflicted in the county in
which the death occurred.” Id. If a “body is discovered in this state
and it cannot be readily determined in what county the cause of
death was inflicted, it shall be considered that the cause of death
was inflicted in the county in which the dead body was discovered.”
13
Id. See also Polke v. State, 315 Ga. 33, 37 (3) (880 SE2d 153) (2022);
Hernandez v. State, 304 Ga. 895, 898 (2) (823 SE2d 272) (2019). And,
OCGA § 17-2-2 (h) provides that, “[i]f in any case it cannot be
determined in what county a crime was committed, it shall be
considered to have been committed in any county in which the
evidence shows beyond a reasonable doubt that it might have been
committed.” “[T]he provisions of subsection (h) may be used to
determine venue in homicide cases.” Pike v. State, 302 Ga. 795, 797
(809 SE2d 756) (2018).
With respect to proof of venue, “[v]enue is a jurisdictional fact
that the State must prove beyond a reasonable doubt and can do so
by direct or circumstantial evidence. Determining whether venue
has been established is an issue soundly within the province of the
jury.” Polke, 315 Ga. at 37 (3) (citation and punctuation omitted).
See also Worthen v. State, 304 Ga. 862, 871 (3) (e), n.6 (823 SE2d
291) (2019) (“[L]ike any other fact, venue may be proved by
circumstantial evidence, and it is enough if the fact of venue is
properly inferable from all the evidence.”) (citation and punctuation
14
omitted). Specifically, even if “[n]o witness was ever directly asked
to identify the county in which the cause of death was inflicted, or
in which the events surrounding the victim’s death occurred,” the
evidence nevertheless could have been sufficient for the jury, “under
an appropriate instruction from the trial court, [to] find beyond a
reasonable doubt that venue was properly laid.”4 Raines v. State, 304
Ga. 582, 584 (1) (820 SE2d 679) (2018).
On appeal, this Court reviews a challenge to the
sufficiency of the venue evidence just like we review a
challenge to the evidence of guilt: we view the evidence of
venue in a light most favorable to support the verdict and
determine whether the evidence was sufficient to permit
a rational trier of fact to find beyond a reasonable doubt
that the crime was committed in the county where the
defendant was indicted.
Worthen, 304 Ga. at 865 (3) (a) (citation and punctuation omitted).
The circumstantial evidence in this case that venue was proper
in DeKalb County includes the following. When Maureen did not go
4 In this case, the trial court properly and thoroughly charged the jury
on the law in OCGA § 17-2-2 (a), (c), and (h), and further instructed the jury
that venue “must be proved by the State beyond a reasonable doubt as to each
alleged crime just as any element of the offenses” and “be proved by direct or
circumstantial evidence or both.”
15
to work on the morning of January 4, her co-workers went to the
Allabens’ marital residence in DeKalb County and found Maureen’s
minivan there. While driving from Georgia to Virginia, Allaben
admitted to his children that he had already killed Maureen, and
after arriving in Virginia, he admitted to his sister-in-law that his
wife’s body was in the truck that he had driven from Georgia.
Maureen was not dressed for leaving home but was only partially
clothed. A blue moving blanket found at the Allabens’ DeKalb
County house was of the same kind that was wrapped around
Maureen’s body. Given this evidence, the jury could reasonably infer
that Maureen was strangled to death in the DeKalb County house,
wrapped in a moving blanket kept in the house, carried to Allaben’s
truck, and then driven away. Moreover, until Allaben returned to
Georgia with his wife’s body and went to his former co-worker’s
home in Clayton County, there was absolutely no evidence that
Clayton County had any connection whatsoever to his wife’s murder.
In addition, several law enforcement officers and the medical
examiner testified that they were employed by DeKalb County when
16
they worked on the case, even though the victim’s body was first
made available to law enforcement in Clayton County.
Viewed in the light most favorable to the verdict, the
circumstantial evidence was sufficient to authorize a rational jury
to find beyond a reasonable doubt that the murder of Maureen
“might have been committed” in DeKalb County. OCGA § 17-2-2 (h).
See also, e.g., Johnson v. State, 302 Ga. 774, 784 (5) (809 SE2d 769)
(2018) (“Additional evidence of venue was provided by several
witnesses who testified that they were employed by the Decatur
County Sheriff’s Office when they worked on the case, where nothing
in the record suggested that any such official had multijurisdictional authority.”); Hinton v. State, 280 Ga. 811, 814 (1) (631
SE2d 365) (2006) (evidence related to venue, including that the
defendant and the victim were together in DeKalb County before the
murder and that the defendant apparently admitted that he had
taken the victim at a gas station in DeKalb County where her car
was found abandoned, “was sufficient to show beyond a reasonable
doubt that the murder might have been committed in DeKalb
17
County”).
Judgment affirmed. All the Justices concur.
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