In the Supreme Court of Georgia
Decided: August 10, 2021
S21A0574. TIRABOSCHI v. THE STATE.
NAHMIAS, Chief Justice.
Appellant Thomas Tiraboschi was convicted of malice murder
in connection with the strangulation death of his cellmate, Chris
Lowery, at the Augusta State Medical Prison. Appellant’s only claim
on appeal is that the trial court erred by admitting evidence under
OCGA § 24-4-404 (b) relating to his prior convictions. But any error
in admitting this evidence was harmless, so we affirm. 1
1 Lowery was killed on July 6, 2013. In October 2013, a Richmond County
grand jury indicted Appellant for malice murder and felony murder. His trial
began on August 4, 2015, and the next day the jury found him guilty of both
counts. The trial court sentenced Appellant to serve life in prison without the
possibility of parole for malice murder; the court purported to merge the felony
murder count into the malice murder conviction, but that count was actually
vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (434 SE2d
479) (1993). Appellant filed a timely motion for new trial, which he later
amended through new counsel in June 2019. After an evidentiary hearing, the
trial court denied the motion in September 2020. Appellant filed a timely notice
of appeal, and the case was docketed to this Court’s April 2021 term and
submitted for decision on the briefs.
1. The evidence presented at Appellant’s trial showed the
following. On July 5, 2013, Appellant and Lowery were cellmates in
the medical prison. Shortly after 6:00 p.m., Lowery, who had a
history of cardiac disease and several other medical conditions,
complained of chest pains to prison staff. He was then examined by
physician assistant Claude Lett. Lett performed an EKG on Lowery
and determined that both gastrointestinal medication that Lett
administered and nitroglycerin, which is a medication that relieves
chest tightness, had not relieved Lowery’s chest pains. Lett then
diagnosed the pains as musculoskeletal rather than related to a
cardiac event and concluded that Lowery’s condition was not life-
threatening. Around 9:00 p.m., Lowery complained again, and the
medical staff informed the officer who received the complaint that
Lowery had already been examined and that his issue was not
related to his heart problems.
At around 3:00 a.m., Appellant approached the guard booth for
his dormitory and, while eating a bag of chips, said to Officer
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Zachary Quick, “Pardon me, officer, but I just killed my roommate.”
When Officer Quick asked Appellant how he had killed his cellmate,
Appellant said that Lowery had taken some pills, and Appellant had
then “helped him” by choking him to death. When the officer asked
Appellant why he had killed his cellmate, Appellant replied that
Lowery had said he did not want to live.
Officer Charles Jones, the floor officer that night, came to the
guard booth, and Appellant told Officer Jones that he had “killed his
roommate” by choking Lowery. When Officer Jones asked Appellant
why, Appellant replied that Lowery had said he was “tired of this
s**t” and asked Appellant to help him kill himself.
Lowery was found lying in his cell with a bed sheet completely
covering him. Lett and a nurse on the prison’s medical staff were
unable to resuscitate Lowery. On their way back to the medical side
of the prison, Lett and the nurse both heard Appellant mumble “I
killed him” as officers escorted Appellant away from the dorms. Lett
also heard Appellant say that Lowery had said, “I can’t take this s**t
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anymore and I want to die,” so Appellant “choked him out.”
According to Lett, Appellant also said that Lowery had changed his
mind while Appellant was choking him and told Appellant that he
did not want to die, but Appellant told Lowery, “It’s too late, we’re
going to finish this.”
Dr. Daniel Brown, a medical examiner and expert in forensic
pathology, performed Lowery’s autopsy. Dr. Brown noted petechial
hemorrhaging on the white part of Lowery’s eyes and discoloration
of the upper chest and head caused by congestion of the blood
vessels, all of which was suggestive of injury from lack of oxygen.
Dr. Brown also noted lacerations and contusions on Lowery’s lips,
which were consistent with an object being placed on his mouth with
pressure, and internal hemorrhaging in the side muscles of his neck,
which was consistent with strangulation even though his hyoid bone
remained intact. Dr. Brown observed that Lowery had a stent and
an enlarged heart but did not see any other indications of
cardiovascular problems or any evidence of a heart attack. Dr.
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Brown concluded that the cause of Lowery’s death was mechanical
asphyxia combined with smothering and that the manner of death
was homicide.
Appellant did not testify at his trial. His defense theory was
that Lowery might have died from natural causes rather than
strangulation and smothering.
2. Appellant contends that the trial court erred by admitting
evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) relating to his
prior convictions for vehicular homicide and theft by receiving.
Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts shall
not be admissible to prove the character of a person in order to show
action in conformity therewith,” but such evidence may be
admissible for other purposes, including to prove intent or absence
of mistake or accident.
Over Appellant’s objection, the trial court admitted evidence
relating to his prior convictions for the sole purpose of showing “lack
of mistake.” Two officers testified about the 1995 incident that led
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to Appellant’s convictions, discussing his driving in a stolen SUV for
several miles during a high-speed police chase from Macon into
Peach County; his intentional crash into an oncoming pick-up truck,
killing its driver; and the discovery of a sawed-off shotgun in the
SUV. Police dashboard camera video recordings and photographs
from the crash scene, along with Appellant’s indictment, guilty plea
form, and sentencing order, were also admitted into evidence. Prior
to the presentation of this other-act evidence and again in the final
charge, the court instructed the jury that it could consider the
evidence “only to the extent that it may show the lack of mistake
issue that the State is required to prove in the crimes charged in the
case.”
We need not decide whether this evidence was erroneously
admitted, because any such error was harmless. The test for
determining whether a nonconstitutional evidentiary error was
harmless is whether it is highly probable that the error did not
contribute to the verdict. See Jackson v. State, 306 Ga. 69, 80 (829
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SE2d 142) (2019). In conducting this harmless-error review, “‘we
review the record de novo and weigh the evidence as we would expect
reasonable jurors to have done so.’” Id. (citation omitted).
It appears that the trial court admitted the other-act evidence
to show lack of mistake with the expectation that Appellant might
present a defense of mistake or accident. Instead, the central
disputed issue at trial was causation – Appellant’s claim that
Lowery died from natural causes rather than strangulation and
smothering by Appellant. As to that issue, the evidence of
Appellant’s prior and dissimilar crimes was irrelevant. But it also
was not unduly prejudicial, particularly in light of the trial court’s
instructions limiting the jury’s consideration of the evidence to a
matter that turned out to be of no importance and the fact that the
jury learned that Appellant had pled guilty to his prior crimes and
indeed was still in prison for them at the time of the charged crimes.
See Howell v. State, 307 Ga. 865, 875 (838 SE2d 839) (2020)
(considering the trial court’s instructions on the limited use of other-
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act evidence in determining harmless error, because “[w]e ordinarily
presume that jurors follow their instructions”); Kirby v. State, 304
Ga. 472, 485 (819 SE2d 468) (2018) (explaining that the risk that a
jury may convict a defendant not for the offense charged but for his
extrinsic conduct is greater where the extrinsic conduct was not
already the subject of a conviction). 2
And as to the central issue at trial, the evidence of Appellant’s
guilt was overwhelming. Appellant told two officers that he had
killed his cellmate by choking Lowery to death, and shortly after
those confessions, two members of the prison’s medical staff heard
Appellant say that he killed Lowery. Lett had determined that
Lowery’s chest pains were not heart-related or life-threatening, and
Lowery’s autopsy showed that his injuries were consistent with
strangulation and suffocation and that there was no indication that
he had suffered a heart attack, leading the medical examiner to
2 We also note that although the closing arguments were not transcribed,
Appellant does not assert that the other-act evidence was emphasized (or even
mentioned) by the prosecutor.
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conclude that Lowery died from mechanical asphyxia combined with
smothering.
In sum, the jury heard compelling evidence of Appellant’s guilt,
and it is highly probable that the admission of the evidence relating
to his prior convictions did not contribute to the jury’s guilty verdict.
See Johnson v. State, 301 Ga. 277, 279-280 (800 SE2d 545) (2017)
(concluding that any error in admitting testimony about a prior
incident “was harmless in light of the substantial evidence of
appellant’s guilt and the limited pertinence of the [other-act]
testimony”). See also Rodrigues v. State, 306 Ga. 867, 871-872 (834
SE2d 59) (2019) (holding that any error in admitting evidence
relating to the appellant’s prior conviction for involuntary
manslaughter was harmless, where the jury already knew that he
was in prison at the time of the charged murder and there was other
overwhelming evidence of his guilt); Jackson, 306 Ga. at 80-81
(holding that the erroneous admission of evidence of a prior shooting
by the appellant a decade before the charged shooting was harmless
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in light of the other strong evidence of his guilt); Manning v. State,
303 Ga. 723, 725-726 (814 SE2d 730) (2018) (concluding that any
error in admitting evidence relating to the appellant’s prior
convictions for aggravated assault and terroristic threats was
harmless given the other substantial evidence of the his guilt).
Judgment affirmed. All the Justices concur, except Colvin, J.,
not participating.
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Tiraboschi v. State
Combined Opinion