Georgia Supreme Court: Fournier v. State - Malice Murder Conviction

In th e Supr eme C ourt o f Georg ia Decided: February 1 7, 2026 S25 A 12 72. FOURNIER v. TH E STATE. L AND, Jus tice. Joey T ravis Fou rni er was conv icted of m ali ce mu rder i n rela tion to the strang ulation de ath of C ynthia Lynn Be rry. 1 On appeal, Fou rnier argues that the t rial cour t abus ed i ts discr etion by 1 The crimes occurred on February 2 0, 2022. On April 2 7, 2022, a Bibb County grand jury i ndicted Fournie r, charging him wit h malice murder (Cou nt 1), felony murder (C ount 2), and a ggravated assault (Count 3). At a trial fro m April 1 through April 4, 2024, a jury f ound Fournier guilty on all counts. On J une 18, 2024, the tria l court sentenced Fo urnier to serve life in prison for Coun t 1. Cou nt 2 was vac ated by oper ation of law. Although the trial court purported to merge Co unt 3 into Count 2 for sen tencing purposes, it should have inste ad been merg ed into Count 1 because Co unt 2 was vacated. However, we declin e to correct the error because a cor rection would have no impact on Fournier’s sentence. See Williams v. State, 3 16 Ga. 147, 153 (2 023) (where “the trial co urt’s incorrect n omenclature did not affect [a]ppellan t’s sentence,” “there is no sentencing err or to correct”). Fournier filed a tim ely motion for new t rial on April 5, 2024, which was later amended thro ugh new counsel o n September 18, 2 024. Following a hearing on Novem ber 14, 202 4, the trial court denied the m otion for ne w trial, as amended, on March 24, 202 5. Fournier timely fil ed a n otice of appeal on March 31, 20 25. This case w as docketed to the A ugust 2025 t erm of this Court and submitted for a decision on the brief s. NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me Court Rule 27, the Court ’s recons ideratio n, and edit orial rev isions by t he Report er of Decisi ons. The ver sion of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desig nated as th e “Final Co py,” will replace a ny prior version on the Court ’s websi te and docket. A bound volu me of the Georgia Reports will contai n the final a nd officia l text of t he opinio n.

2 admit ting cert ain auto psy pho tograp hs and that his tria l counse l rend ered co nstitutio nally ine ffectiv e ass istance by failing to properl y o bject to those phot ogr aph s. Fo r th e reas ons that f oll ow, w e affirm. The ev iden ce pres ented at tri al sh owed the followin g. Fourn ier’s fri end, Ashto n “Cod y” Piscite lli, te stified t hat he a nd Fourn ier wo rked togeth er. After work on F ebru ary 2 0, 2 022, Fournie r and Piscitelli stopped by a l iqu or st ore, where F ourn ier purc hased Fir eball shot s. Pisc itelli then d ropp ed Fournier off at Berry ’s hou se aro und 7:30 p.m. befor e drivi ng F ournier’s tru ck to his home n ear by. 2 At 10:51 p.m., Fou rni er cal led Pis citel li and sai d th at he “need [ed] a rid e.” Piscit elli found Four nier walking near the entran ce t o Be rry’s n eig hborh ood. As Fou rnier got in to th e tru ck, he point ed a g un at Piscit elli and said, “I need y ou to take m e to th e hunting c lub.” D uring the drive, Fournie r told Pisc itelli t hat he had “stra ngled [Be rry] with his ha nds” “until she wa s cold” and left he r 2 Fournier and Berry were involved i n a romantic relatio nship.

3 “on the k itch en fl oor.” F ourn ier al so cal led h is br oth er and told him tha t he a nd Berry “ got into it,” Berr y was dead, and “ he was going out to his hunting land to commit suic ide. ” At one point, Fo urnier “too k the gun of f of [Piscit elli] fo r a split second, … put it in his mouth, ” and sa id that he wa s going to kill himsel f. Fou rnier al so thre atened to kill Piscite lli. Pisc ite lli drop ped Four nier of f at the hunting la nd and dro ve away. Fo urnier the n placed anothe r call to his br other, a gain saying tha t “he was going to end his life. ” Fournie r’s bro ther later p icked him up from the hunting la nd a nd bro ught him to his house. Four nier again t old his bro ther th at he and Ber ry “g ot into a f igh t …, it w ent b ad,” an d B erry w as dea d. As he d rove hom e, Pisci telli call ed anoth er frien d of Fournier’s, Matt Lon g, to t ell him wha t had ha ppened 3 and th en called 911. Office rs res ponded t o Berry’s h ouse and f ound her deceased on th e couc h with a “ cord” and “l igatu re marks ” aroun d her neck. 4 Officers 3 At that time, Long saw that he had a missed call an d voicemail from Fournier in whic h he said “goodbye” and that he had not d one anything th at “wasn’t deserved.” Fournier’s voicemail was pla yed for the j ury. 4 The “cord ” around Berry’s neck was determined to be a drawstring that had been removed f rom a nearby j acket.

4 recove red fiv e empty Fireb all shot bot tles from the s cene an d noted that there w ere no s ign s of f orc ed e ntry o r any stru ggl e. On Feb ruary 22, 2022, Fournie r was arre sted. During h is cust odial inte rvie w, whi ch w as play ed for th e jury, Fournie r told inv estiga tors tha t, on the night in ques tion, he bought Firebal l sh ots and w ent to Ber ry’s h ouse f or di nner. Wh il e Berry was “doin g sho ts,” Fou rni er took a sh ower, an d th en Berry came “ out of the ki tch en, belli gerent, drunk, and attack [ed] [him].” Four nier claime d that he did not rememb er anything else until Pisc itelli picke d him up, but he ad mitted tha t he kne w “something b ad” had happen ed an d st ated th at “ it was not int entio nal.” He remem bered telling P iscit elli t hat he ha d got ten into a f ight wit h Berr y and t hat he thou ght he had “k il led her, ” and he remem bered calli ng Long and leaving him a messa ge. When shown p hoto graphs of Be rry from the scene, Fourn ier refus ed to l ook at them an d sai d that h e was “disgu sted with ” hi mself an d “regr et[ted ]” what happ ened. Fourn ier tes tifi ed i n his own defen se at t rial. H e cl aim ed that his volati le rom antic r elati onshi p w ith Berry was typi fied by Be rry

5 being d runk and acting “ pretty viole nt [ly] ” tow ard h im. He also sai d that B erry ’s h ostility towar d h is t eenag e daughter cau sed signific ant c onflict in t he relationship. F ourni er’s tes timon y was most ly cons istent wit h his initi al inte rview s tatement s to law enforc ement. He adde d that, on t he n igh t of Berry ’s death, Berry said s he “was going to torme nt [his] daught er until [his daughter] commi tted su ici de.” In r espon se, h e “saw r ed” an d becam e “very angry,” bu t he ag ain cl aim ed not to remem ber what h appened bef ore Piscit elli picke d him up. 5 When p ress ed on cro ss - exami nati on, howev er, F ourni er acknow ledg ed t hat h e “w as th e on ly one at the hous e,” so h e “p robabl y did” stran g le Ber ry. 1. Fourn ier argu es that the t rial cou rt abu sed i ts di scr etion by admit ting “s everal a utopsy pho tos dep icting the differ ent angle s of the bod y an d ad di tion al pos t - incisio n interior p arts of the nec k.” We are not persuade d. On the t hird mo rning of tria l, prior to the jury entering the courtr oom, the Stat e aske d for a brief he arin g on th e admi ssibi lity 5 Fournier denied poi nting a gun at Piscitelli during the drive.

6 of two au tops y ph otog raphs – State’s E xhi bit 2 4 and 25 – that depict ed in ternal i nju ries to B erry ’s n eck. T he St ate con ten ded th at the ph otographs were ne cessary to supp ort the medi cal exami ner’s conc lusions “re lating to injur y and cause of death.” Fournie r’s couns el arg ued that ther e w as no need to publi sh the p ost - incision photog raphs beca use the defense wa s “ not que stioning the manner of death. ” The St ate the n called the me dical examine r, who te stified that Berry ’s “ cau se of dea th w as asph y xia du e to lig atur e str angu lati on. And th e man ner of d eath was homi cide.” She explained that an exami nation of th e injurie s on Berry ’s “inte rnal neck s tructur e s ” wa s necess ary to reach thes e co nclusions. She als o testif ied that th e disputed phot ographs showe d “di ffere nt” injuries – Stat e’s Exhib it 24 depi cted inju ries t o Berry’s nec k mu scles, and Stat e’s Exhi bit 2 5 showed frac tures to Berry ’s hyoi d bon e and h emorrh aging arou nd it – and would both be “helpf ul” for her to e xplain to t he jury the exist ence of Be rry’s f atal injur ies. The t rial court rul ed that the two photog raphs were admi ssibl e bec ause th ey wer e “rel evant to show

7 the natu re an d lo cation o f [Berry]’ s wou nds ” a nd “ ne cess ary for the Medical Exam ine r to expl ain [B err y]’s in juri es, even thou gh som e o f the ph otogr aphs are g raph ic.” Fourn ier’s coun sel then a rgued that some of th e other antici pated autops y photog raphs – Sta te’s Exhib its 9, 10, 18, 19, 22 and 23 – were cumulati ve becau se they “depict[ed ] the same exact photo from … di fferent angles.” The med ical e xaminer disag reed with tha t characte rizati on, t esti fied that the photog raphs “docu ment ex actl y how the body was w hen we recei ved it, ” a nd agreed wi th the prosecu tor ’s stat ements that th e photos provi de d “referen ce poin t[s]” for the body, and help ed “ orie nt th e jury as to the lo catio n of injures.” She also agreed that each photog raph h elped to s upport her conc lusions a nd test imony re lating to Berry’s ca use and man ner o f dea th. The c ourt rule d that the objecte d - to photog raphs wou ld be allow ed in to evi denc e. The j ury retu rne d to the courtr oom, and th e Stat e cal led the medical exami ne r as a witnes s. S he fi rst testifi ed general ly about the “li gatu re mark s” on th e exte ri or of Be rry’s n eck, the in ternal

8 hemorr haging o n her neck muscles, and the mult iple frac tures to her hy oid bon e, all of whic h suggeste d that “ w hat ever imp lemen t was us ed w as f rom beh in d” and that “ a lo t of constant pres sure” was applied. At that point, t he S tate t ender ed, an d the court admitt ed, Sta te’s Exhibit s 9, 10, 18, 19, 2 2, 23, 24 and 25 while no ting Fourn ier’s obje cti ons. Th e medical exami ner then used the autopsy photog raphs to expl ain her exami nation to th e jur y and to support her co nclusions about the cause an d mann er of B erry’s de ath. In i ts ord er den yi ng F ourn ier’s moti on f or n ew tri al, the court held tha t th e ph otog raphs “wer e relevant to show the natu re and locati on of … B erry’s inj uries an d to co rroborat e the S tat e[]’s evide nce of the c ircumst ances of the killing ” and “were n ot needles sly cu mu lativ e of o ther ev iden ce.” The cour t also note d that the pro bativ e valu e of the ev idence “was not subst antia lly outwei ghed by th e risk of the cumu lativ e pres entation of ev iden ce or by the dang er of unfair prej udi ce t o the d efens e.” On appeal, Fo u rn ier arg ues that, beca use he stipula ted to Berry ’s cau se of d eath and did not qu est ion th e medical exam iner’s

9 findings, the photo graphs were irrelev an t and that the “ shoc king nature o f the ph otog raph s [was ] highly pre judicia l to the jury.” 6 See Ventur ino v. Sta te ¸ 306 Ga. 391, 39 5–9 6 (2019) (explaining t hat the admis sibility of a utop sy photo graphs depen ds on their rel evan ce and whe ther the pro bative va lue of the ev iden ce is s ubsta ntially outwe igh ed by th e dange r of unfai r prej udi ce). In gene ral, the admissib ility of autops y photogr aphs is govern ed by O CGA §§ 24 -4- 401 (“Ru le 401”), 24 -4- 402 (“Rule 402”), and 24 -4- 403 (“R ule 403 ”). See White v. State, 319 Ga. 367, 37 5 (202 4). 7 We ha ve expla ined that “[a] u topsy ph oto graphs may be relevan t an d pro bative to sh ow th e nature an d loca tion of a vi ctim’s injurie s, eve n if the cause of death is not disput ed.” Allen v. State, 6 Fournier also argues that th is ad missibility issue “ was pr eserved by objection during tr ial. ” The State agrees, as do we, that the issue was preserved for ordinary appella te review. 7 Under Rule 40 1, an autopsy photogra ph is relevant e vidence if it h as “any tendency to make the existe nce of any fact that is of consequen ce to the determination of th e action more prob able or less probab le than it would be without the evidence.” Releva nt autopsy photographs are generally ad missible as evidence, see Ru le 402, but such ph otographs “ma y be excluded if [the ir] probative value is substanti ally outwei ghed by the dang er of unfair preju dice, confusion of the issues, or mis leading t he jury or by considerations o f undue delay, waste of time, or needless prese ntation of cumul ative evidence.” Rule 403.

10 307 Ga. 7 07, 710 (20 20). And “exclud ing rele vant e videnc e under Rul e 403 i s an extr aordi nary re medy th at sh oul d be used onl y spar ingly.” Id. (citatio n and punc tuatio n omitt ed). “ We review a tria l court ’ s evident iary r ulings u nder an abu se of di scre ti on sta ndard of review.” White, 31 9 Ga. at 376 (c itation a nd punctua tion o mitted). H ere, the int ern al autops y phot og raphs were rel evant an d proba tive to support th e medical exami ner ’s tes timony ex plaining the c ircumsta nces surro unding Berry’s deat h. T hey “ visually depict ed som e of th e consi dera tions the medi cal exa miner made” – such a s the inju ries to Ber ry’s n eck muscl e s, the f ractu res t o her hyoid b one, and the hemor rhagi ng arou nd it – whe n deter mining Berry ’s caus e of dea th. See Bu rks v. State, 322 Ga. 865, 873 – 74 (202 5) (finding tha t “pos t - in cision photogr aphs w ere rel evant to ill ustrate [t he m edical exam iner] ’s tes timon y abo ut [the victi m]’s cause of de ath” becaus e they sh owed th e extent of i nju ries th at wer e “not visible pre - incisi on” an d they “ corrobora ted th e Stat e’s e vide nce of t he circumsta nces of the killing” (cita tion and p unctuat io n omitted)). The photog raph s also sh owed th e exist ence of in juri es

11 that were co nsistent wit h sustai ned p ressu re havin g been ex erted on Ber ry’s neck, as expl ained by th e medic al exami ner, which c ould be con sid ered by the ju ry w hen mak ing a de termi nati on of malice. The pho tographs therefor e allowed t he medical e xaminer to illustr ate t he nature of Berry’ s inter nal injurie s and c orrob orated the St ate’s evid ence r ega rding the ci rcum stanc es of B erry’ s de ath. See Bur ks, 322 Ga. at 87 4; Salve sen v. State, 317 Ga. 314, 31 7 – 18 (202 3); Allen, 307 Ga. at 710. Fournie r co ntends tha t the pho tograp hs were highly pre judicia l due to the ir “shocking na ture. ” Bu t “th e mere fact th at the ph otogra phs w ere gru esome does no t, as a gen eral ma tter, rende r them i nad miss ible u nder R ule 403. ” Sa lvesen, 317 Ga. at 317. See als o P lez v. State, 300 Ga. 505, 508 (201 7) (“ [P] hotogra phic eviden ce that fai rl y and accurat ely depi cts a body or cri me scene an d is off ered for a rel evant purpo se is n ot gene rall y in admi ssible un der Rul e 403 me rely becau se i t is g ruesome.”). And the re wa s nothing part icularly unfair about the admissi on of th ese p hotogr aphs. See Burks, 322 G a. at 874 (“ [A] lthough the phot ographs may h ave been

12 graphi c, we cannot s ay that the trial court abused its discre tion in conc luding tha t their p robative value wa s not s ubstant ially outwei ghed by the dan ger of unfai r prejud ice. ” (citatio n and punct uation o mitted)). Fournie r argue s that his pro posed stipula tion to t he cau se o f death negat ed th e phot ograp hs’ relev ance. We reject thi s argu ment. First, whil e Fourn ier’s counsel st ated t o the t rial court th at the defen se was not conte sting t he manner of Berry ’s d eath, there is no indica tion in th e recor d that the Stat e acc epted a ny offer by th e defe nse t o st ipulate to t he caus e of d eath or eve r agreed that its ri ght to prov e its case as it deem ed b est w as som ehow l imi ted by th e propos ed s tipu lati on. A s a resul t, t he St ate w as p ermi tted to p rove the cau se of death in an y p ermiss ibl e m anner that i t chos e. See O ld Chief v. U nited Stat es, 519 US 172, 186 – 89 (19 97) (agreei ng, as a general matt er, tha t “ the pros ecut ion is en titled to prove i ts cas e by eviden ce of its own c hoice ” a nd tha t “ a c riminal defen dant may not stipu late or ad mit h is w ay ou t of th e full evid entiary force of the case as the Gove rnmen t cho oses t o present i t ”). At bes t, Fou rnier ’s

13 purpo rted sti pul ati on was merel y an off er to s tipul ate th at was n ot accep ted by t he S tate. Se cond, while we rec ogni ze th at th e def ense ’s offe r to stipula te to the caus e of death may ha ve diminished the proba tive v alue of th e evi dence, it did not negate it. S ee Hood v. State, 299 G a. 9 5, 10 3 (2016) (“ A rej ecte d off er to sti pul ate t o an issu e does no t re nder ev iden ce on that i ssue i rrel evan t, but it must be cons ide red u nder Rule 403, becau se th e ava il abili ty of th e stipula tion diminishe s th e proba tive v alu e.”). Under the circum stan ces p resen t here, including Four nier ’s denia l of the mater ial alle gations o f the ind ictment through his plea of not guilt y, the S tate’ s bu rden to p rove th ose alleg ations, F ou rnier’s claimed lack of m emory con cerni ng the cir cums tanc es sur rou ndin g Berry ’s deat h, and t he usefulnes s of the ph otog raph s to th e medi cal exam iner dur ing her ex planatio n of the inj uries that cause d Berry ’s death, we conc lude that the trial cou rt di d not a buse i ts disc retion when decid ing that the probativ e val ue o f th e evi dence (even thou gh diminis hed by Fournier’s offer to stip ulate) was not s ubs tanti ally outwe ighed b y unfair prejud ice. See Salvesen, 317 Ga. at 31 8 – 19.

14 Accor dingly, this claim of err or fail s. 2. Fourn ier fu rther argue s that hi s trial couns el rende red cons titutio nally ine ffec tive a ssistanc e because she “did not ar gue specifi cally to h ave the po st - inci sion auto psy ph otos supp ressed from evi dence.” And “[t] o the exten t that th e issu e w as not p reserv ed for the re cord,” he c ontends t hat trial cou nsel w as ineff ectiv e. Because w e con clude th at Fou rnie r’s trial cou nsel p roperly obj ecte d to the p hotog raphs during t he evident iary hear ing, Fo urnier ca nnot show d efici ency, and t his claim fa ils. For Fo urnier to prevail on his ine ffe ctive as sistance cla im, he must sho w that his tr ial couns el perfor med deficie ntly and t hat the defici ency preju diced h im. See Strickl and v. Was hington, 466 US 668, 68 7 (1984). T o show defi cien cy, Fournier must est ablish tha t his tr ial counsel “perfo rmed at tri al in an object ive ly u nreason able way c onsider ing all the circumsta nces and in light o f prevailing profess ion al n orms. ” Taylor v. State, 315 Ga. 630, 6 47 (20 23) (citat ion and punctua tion o mitted). “ Even w hen a defendan t h as proved that hi s counsel’ s perfo rman ce was deficie nt, h e als o mu st

15 prove res ulti ng p rejudi ce by sh owi ng a reas onabl e pro babi lity that, but for counsel ’ s unprofess ional error s, the result of the proce eding woul d have been di fferen t.” Evans v. State, 315 Ga. 607, 611 (2023) (cit ation and p unctuatio n omitted). “ Moreov er, ther e is no re ason for a court decidin g an i neffe ctive assi stance claim ... to address bot h compo nents of the inquir y if the defe ndant make s an insuff icient showing o n one. ” Id. (citat ion and punc tuatio n omitte d). Under the cu rrent Ev iden ce Code, “[o ]nce the cou rt makes a def initive r uling on t he rec ord admit ting or exclud ing any evid ence, either at or befo re t rial, a pa rty ne ed not ren ew an o bjecti on o r off er of pro of to prese rv e such cl aim of er ror for app eal. ” OCGA § 24 -1- 103 (a). Durin g th e eviden ti ary h earin g, Fournier’s trial couns el object ed t o the ad miss ion of th e c ontest ed autop sy photograph s o n both rel evan ce and cumu lati ve gro unds and argu ed to exclude t h em. B ut the trial court ruled that they we re admis sible and no ted trial couns el’s objec tions when he a dmitted them a t tri al. Because Fourn ier’s trial couns el obj ected to th e evi den ce and the cou rt overru led her obj ection s, Fo urn i er “f ails to show any def icienc y in

16 this respec t.” Salv esen, 31 7 Ga. at 321 (conclud ing that, w he re couns el “obj ect[ed] to th e adm issi on of th e pho tograph s at issue a nd obta ined a ruling with respec t to all of them, ” trial c ounse l wa s n ot def icient). T o the ex tent Fourn ier argues that h is tri al cou nsel shou ld hav e ren ewed his obj ecti on w hen the ph otographs were lat er offer ed int o evid en ce, thi s claim also fai ls. S ee Gaston v. State, 307 Ga. 634, 640 – 41 (202 0) (trial counse l was not defic ient for failing t o renew h is o bjecti on to the ad missibi lity of tex t message eviden ce after th e trial co urt had overru led couns el’s p rior obj ecti on to t he texts); Antho ny v. State, 29 8 Ga. 827, 831 – 32 (20 16) (coun sel di d n ot need to obj ect to the ad mission o f other - act evid ence to p reserve th e issu e on appe al b ecaus e the t rial c ourt h ad ru led t hem adm issi ble follo wing a pr e - tria l hearing). Fourni er’s cl aim of i neffe ctive assist ance of cou nsel theref ore fails. Judgment a ffir med. All th e Just ice s concu r.