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A former Barnesville, Ga., police captain, sentenced to life in prison for shooting her husband, has narrowly lost her bid for a new trial. A 4-3 ruling by the Supreme Court of Georgia rejected Ethel Elizabeth “Beth” Tessmer’s claim that the jury should have been allowed to acquit her based on her claim that the killing was an accident that occurred when she used a gun to scare her abusive husband. Tessmer, a 15-year law enforcement veteran who once headed the Barnesville Police Department’s domestic violence unit, claimed that her gun accidentally discharged as she struggled with her alcoholic, abusive husband, David Newton. Tessmer, 41 at the time of the killing, was Newton’s senior by 14 years. The couple had been married for just four months. A Lamar County grand jury charged Tessmer with malice murder, felony murder and involuntary manslaughter in connection with Newton’s January 14, 1998, death. Tessmer’s felony murder charge was based on the underlying crime of aggravated assault. That is, it’s believed the gun discharged while she was using it to intimidate — or assault — her husband. “It’s a matter of a very, very refined legal argument,” says Lamar County Assistant District Attorney Paul E. Hemmann, who handled the appeal. Although the court was narrowly divided, as it appeared to be during oral argument, the jury’s decision was upheld, Hemmann says. “And you’ve got to believe in the jury system.” Tessmer’s lawyer, Sandra J. Popson of the Macon, Ga., firm Katz, Flatau, Popson & Boyer, did not return a phone call seeking comment for this story. According to court records, Tessmer and Newton married in September of 1997. Newton was a verbally, physically and sexually abusive husband. In early January 1998, that abuse spiraled out of control, at one point prompting Tessmer to leave home for a motel. But she returned only a few hours later because she said she felt that Newton needed her. On January 9, 1998, the couple’s mobile home burned to the ground. After a short stay with Tessmer’s parents, and then at a hotel, the couple finally settled into an apartment. Evidence introduced at trial shows that Newton was drunk and destructive from the time the two moved into the apartment until the shooting five days later. He punched a hole in the wall of the apartment, physically abused Tessmer and bloodied her nose. The majority wrote that Newton’s abuse escalated on the night of the killing: “Newton forced Tessmer to have sex with him. Then he physically abused Tessmer by putting her in several ‘wrestling holds’: he wrenched her arm, bent her fingers, and squeezed her until she could hardly breathe.” There were two twin mattresses on the floor. When the situation had calmed, Tessmer moved to the floor next to her mattress, and Newton sat down on his mattress. Tessmer removed her .40-caliber service pistol from under her mattress. According to Tessmer, Newton grabbed her hands as she held the pistol and he put his thumb on the trigger, causing it to fire. Newton died from a single gunshot wound to the chest. But the medical examiner didn’t find gunshot residue on Newton’s hands and opined that Newton was too drunk at the time of the shooting to have been able to place his thumb on the trigger. Newton’s blood alcohol level was three times the legal limit for driving, his autopsy showed. That evidence, the majority explained, was sufficient for the jury to find Tessmer guilty beyond a reasonable doubt of felony murder. Tessmer v. State, No. S00A1397 (Sup. Ct. Ga. Dec’d Nov. 30, 2000). At the close of Tessmer’s trial, Superior Court Judge Ralph H. Hicks told the jury that accident was not a defense to felony murder. Hicks explained that even if Tessmer’s gun discharged unintentionally, she would still be guilty of felony murder if she wounded Newton while attempting to place him in reasonable fear of immediately receiving a violent injury. That instruction was proper, the high court explained. “[W]hile accident can be a defense to the underlying felony of aggravated assault, it cannot be a defense to felony murder predicated upon the underlying felony of aggravated assault,” Justice Hugh P. Thompson wrote for the majority. Justices George H. Carley, P. Harris Hines and Leah W. Sears concurred. But Justice Carol W. Hunstein, joined in dissent by Chief Justice Robert Benham and Presiding Justice Norman S. Fletcher, felt Tessmer deserved a new trial. “The outcome of this case hinged on whether the jury believed it could consider accident as a defense to felony murder. Inasmuch as the jury was directed by the trial court it could not consider the defense of accident when deciding whether Tessmer was guilty of felony murder, I must dissent,” Hunstein wrote. The dissent also painted Newton as a lawbreaking drunk, while expressing sympathy for Tessmer. “In the course of their abbreviated four-month marriage, Newton, who drank heavily, was arrested three times for driving under the influence,” Hunstein wrote. “As their home was burning to the ground, Newton argued with firefighters, demanding that they go into the burning home to retrieve his alcohol,” she continued. “During an argument the night before the shooting, Newton hit Tessmer, pushed her against a night stand, bloodied her nose and wrenched her elbow. The following day, when Tessmer refused to have sex with Newton, he raped her,” Hunstein wrote. But Assistant District Attorney Hemmann says that account is one-sided. “Justice Hunstein’s version of the facts was entirely from the defendant’s point of view,” he says. “Tessmer says, ‘He raped me,’ but there is absolutely no evidence of that other than she said it, or that’s my recollection,” Hemmann says. “Is she a victim? I don’t know; that’s what she says. I don’t know and you don’t know.”

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