Albritton v. State

• Decision Date: 11 April 1969
• Docket Number: No. 68--397,68--397
• Parties: James Floyd ALBRITTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 192

221 So.2d 192

James Floyd ALBRITTON, Appellant, v. STATE of Florida, Appellee.

No. 68--397.

District Court of Appeal of Florida, Second District.

April 11, 1969.

Walter R. Talley, Public Defender, Bradenton, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Acting Chief Judge.

This is a case wherein appellant James Floyd Albritton, defendant below, appeals from a judgment of conviction and a sentence to 25 years in the State Prison upon a verdict of guilty returned by the jury after trial upon an information charging second degree murder in the Sarasota County Circuit Court.

The sole contention of substance here has to do with admission into evidence, over objection, of certain photographs, both in color and in black and white, of an infant girl child, Stacia Lynn Phillips, also variously referred to in the record as Stacie or Stacy, but hereinafter as Stacie. At the time of the child's death her mother, Michele Phillips, was living with defendant Albritton, having 'moved in' with him at his Clark road home two weeks previously. Michele was not working. Albritton's work was training horses. Stacie was sixteen months old at the time of her death on July 12, 1967, and had been living at the house with her mother and Albritton during the two weeks interval.

The State's contention at trial was that Stacie's death resulted from persistent and brutal beatings and other physical abuse administered to the child by Albritton during the two weeks period. Numerous witnesses for the State gave eye witness accounts of such ill treatments, as shown by the record here, some of which may be here narrated:

He beat her with sticks. He beat her with a rope between her legs. He beat her with fresh switches, on one occasion a foot and a half long, and on another occasion 2 1/2--3 feet long. 'He picked her up and whipped her with (such a switch) and let her just drop to the ground'. He 'whipped her across the stomach and across the back, leaving big welts'. On one occasion in the presence of Michele and a mutual friend he 'bit the baby', closing his mouth in the process, 'and then he bit her on the shoulder and picked her almost off the floor * * * with his teeth'.

Another witness saw the baby with 'two very large blue hand prints in the middle of her back' with 'nothing else on but a dirty diaper'. And on another occasion 'the baby was bruised around the face, on the right shoulder and on the arm' with 'two burns on her finger', * * * 'about half the finger was burned'.

One witness said: 'its face on one occasion was very bruised and beaten * * * and it was kind of mushy around the face. The whole side of it here was blue and you could touch it like this and it was very soft'. Another witness said that on one occasion Stacie 'was all bruised on her face, and she had a burn, it looked like a cigarette burn'. He testified that Albritton admitted beating her with a ping-pong paddle and his belt on her bare rear end. 'Stacie could hardly walk'.

Another witness testified that about a week before Stacie died, 'her arms and shoulders were both all bruised' and 'she had a big bump on her head and her little buttocks was all bruised and she had several burns on her fingers' and she was 'just crawling around'. Another witness, who with his wife saw Stacie on Monday, just two days before she died, said that 'the child was just not hardly able to move. She whined and we gave her a little water. And also Sunday she couldn't even hold, we had lemonade, see we had taken our lunch out there and we had lemonade and she noticed it and wanted it and she just grabbed it up and shook it, and couldn't even get it to her mouth'.

An uncle of defendant Albritton, Robert Altman, was living with Albritton at the Clark road home before Michele moved in and continued living there thereafter. He testified he asked Michele, the mother, 'to take the baby from the house and leave', and that he also reported the whippings of the child to deputy sheriff Blackburn in Sarasota, a friend of his, and 'asked him would he come and look at the baby and see if something could be done about it'. Before the wheels of the law could get into motion the child was taken hurriedly in an unconscious condition to the hospital.

She was first examined by a neurological surgeon, Dr. Sullivan, in the emergency room. She then displayed 'numerous bruises over head, chest, extremities, abdomen, pelvis, peritoneum, and numerous abrasions of the thorax and abdomen, abrasions and burns of the buttocks'. He described her condition generally from a medical standpoint as a 'battered child syndrome * * * evidence of a child having severe beating * * * multiple severe beatings.' The child was admitted to the intensive care unit of the hospital and shortly thereafter underwent surgery where there was found 'extensive injury to the brain.' The bruises found on the brain were 'just practically innumerable' and were 'the immediate cause of death', which occurred shortly after surgery.

Dr. Forest Chapman, Medical Examiner for Sarasota County, examined Stacie's body at the hospital shortly after death and observed 'quite a number of bruised areas over the body from head to toe. Starting at the head the child had large areas of bruising and swelling about the head, scars from the bridge of the nose extending to the side, the cheek, left cheek, more up in the zygoma region extending up into the temporal region, extending around to the back of the head, back of the head had bruised areas here. Lower, the base of the skull there were large bruised areas. There were large bruised areas over the face of the child, the lower lip * * * They also had bruising across the back, the chest, two distinct peculiar bruises in some areas of the skin also broken, what we call bilinear streaks, I guess an inch apart, coming from the left shoulder down to the right hip, across the back. Also similar marks to the right chest wall and a similar type injury across the front of the chest. The child also had a bruise about two inches in diameter, about an inch in diameter the lower part of the breast bone. Also had a bruise in the abdomen in front about the level of the navel. Also had a bruise, let me just say scattered smaller bruises about the lower legs, both sides. The child's entire, what we call perineum, the area of the child's privates as well as the buttocks and the back was literally a total mass of bruises and ecchymoses, black and blue areas * * * By some type trauma there was a break in the skin. As an example, slight lacerations on the inside of the lower leg. There was an area of the lower leg on the right where the skin had been broken. There was a large defect in the skin and the lower quadrant, let's say adjacent to the navel on the right, a large area, approximately one by one-and-a-half or two inches and longer diameter, extending down as deep as a subcutaneous fat. This was quite deep'.

Dr. John S. Bracken, a local pathologist, performed an autopsy on Stacie's body, the result of which conformed with the visual evidence of the other doctors, including an experiment that determined the burns on the left buttock to have been caused by the burned tip of a cigarette.

The child's mother, Michele Phillips, who had married defendant Albritton between the time of Stacie's death and the date of trial, testified that Stacie 'had bruises on the inside of her legs from horseback riding' on Monday, July 10, 1967, two days before she died. She stated that she 'had her (Stacie) riding in front of me on the front part of the saddle and her legs, the saddle, the front of it came around in a curve and she was sitting with her legs about half on, the best she could sit, to where she was comfortable so it wouldn't spread her legs, so it wouldn't hurt her'. She said it was 'a Western saddle * * * high in the back, comes up in the front, rounded off, they've got a saddle horn, some of it curves around, built up, curves around'. That was her explanation for injuries to Stacie's buttocks and the inside of her legs.

As to other marks and bruises on the child's body, Michele testified that Stacie, on the day she was taken to the hospital, 'had fallen, she had climbed up on the shelves * * * in the diningroom * * * there were four or five shelves built straight up against the wall, all of them even and that's where we had the telephone and small odds and ends'. She also stated that Stacie 'had a burn on her side * * * from my hair drier', which she had inadvertently left on her bed 'to cover a wet spot'. To explain the burns on the fingers, she testified that Stacie 'picked up a cigarette * * * nothing happened that first time when she picked it up. Later on, a couple days later, I don't remember exactly when it was, she grabbed it with her fingers like that, it slipped and she caught the lit end of it and it burned her fingers'. The foregoing are representative samples of the explanations of Stacie's mother for the many serious injuries on her body at the time of death.

Defendant Albritton also testified in his own behalf. He said that on July 3rd, 1967, in Arcadia at a 'Quarter Horse Show' he was there 'to do a bunch of horses' for 'different people'. He had left Stacie in a truck while he was 'shoeing' a horse just behind the truck. Someone yelled to him that Stacie was on the ground where she must have fallen out, 'she had a light blue mark here and across the back of her neck'. On another occasion he returned from work and Stacie 'had a burn, the best I can remember on her right side and one behind, I don't know which side, had a light blue mark on it'. He was not at home when it happened but Michele informed him it was the result of the 'hair drier' episode. He stated he struck Stacie only very lightly during the two weeks before her death, 'just little minor things around the house, like frying pans...