Battle v. State

• Decision Date: 18 February 2019
• Docket Number: S18A1445
• Citation: 305 Ga. 268,824 S.E.2d 335
• Court: Georgia Supreme Court
• Parties: BATTLE v. The STATE.

305 Ga. 268

824 S.E.2d 335

BATTLE

v.The STATE.

S18A1445

Supreme Court of Georgia.

Decided: February 18, 2019

Stephen Randall Scarborough, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Teri B. Walker, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for Appellee.

NAHMIAS, Presiding Justice.

Appellant Shuntae Battle was convicted of malice murder, aggravated assault, and first-degree cruelty to children in connection with the death of her three-year-old daughter, Jazmine Jerkins. Appellant contends that the evidence presented at her trial was insufficient to support the malice murder and cruelty to children convictions; that her right to due process was violated because the prosecutor’s arguments about her credibility and culpability at her trial differed from the prosecutor’s arguments at her co-indictee Juan Johnson’s prior trial; and that the prosecutor’s incorrect statements of the law during closing argument require reversal. Finding no merit to these contentions, we affirm her convictions for malice murder and cruelty to children, but we vacate her conviction for aggravated assault, because that count should have merged into the malice murder conviction.¹

1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at Appellant’s trial showed the following. In March 2010, Appellant was living in her grandmother’s house with her two children, Jazmine and a one-year-old boy, when she began dating Juan Johnson. Johnson took an active role in helping Appellant care for her children, becoming particularly involved in Jazmine’s discipline. He told Appellant that Jazmine was too free-spirited and that Appellant was too "soft" on her. Before beginning a relationship with Johnson, Appellant would discipline Jazmine by taking away her toys, making her stand in the corner holding her hands up, and occasionally spanking her on her bottom with a hand or a small belt. Johnson’s discipline method involved more spanking, using his hand to spank Jazmine on her bottom or her hands.

At the end of May, Appellant and her children moved out of her grandmother’s house due to conflicts between other family members living in the house. They lived with Appellant’s aunt for about two weeks before they moved in with Johnson. He lived in a small cottage at the back of his parents’ house; it did not have a functioning bathroom, so they would use the bathroom in his parents’ house or a portable toilet in the cottage. Around this time, Appellant was having health problems and had to stay in the hospital for three days and get a blood transfusion

. When she was released from the hospital, she was still very weak, and Johnson offered to take over primary responsibility of caring for Jazmine. Johnson began to increase the severity of Jazmine’s discipline, whipping her on the bottom with a large, thick, leather belt an increasing number of times per day. Appellant authorized this discipline, and whenever Jazmine was being disciplined, Appellant was present. Appellant also whipped Jazmine with the belt, sometimes taking turns with Johnson.

On August 11, 2010, Appellant, Johnson, and the two children spent most of the day at home. Throughout the day, Johnson frequently commanded Jazmine to hold her hands above her head, because she had trouble sleeping at night and he wanted to tire her out. She dropped her hands several times, and each time, Johnson spanked her with the belt on her bottom. Appellant also hit Jazmine on the bottom twice that day because Jazmine urinated on herself. That evening, Jazmine defecated on the floor and herself, and Appellant punished her by spanking her bottom two more times with the leather belt. Johnson said Jazmine needed to be punished more, however, and he then began to whip the child more severely. He spanked her with the belt "continually at least twenty times." Jazmine began yelling and twisting, trying to avoid the blows while Johnson held her in place, so the blows hit Jazmine on her torso and not just her bottom. When Jazmine fell to the floor, Johnson yanked her back up by her hair and started whipping her again. At some point during this beating, Appellant left the room. After she returned, she told Johnson to stop, and they argued. Jazmine said she had to go to the bathroom; Appellant put her on the portable toilet, but she fell off. Appellant fed Jazmine some applesauce and then gave her a bath. During the bath, Appellant became concerned first when she noticed that Johnson had pulled out a section of Jazmine’s hair and then when Jazmine began acting sleepy and slurring her words.

Appellant told Johnson to drive them to the hospital; on the way, Jazmine’s breathing became faint, and they called an ambulance. A police officer and paramedics met them in a parking lot. Appellant told the officer that she did not know how Jazmine had been hurt, and she told one of the paramedics that Jazmine had fallen off the toilet and hit her head. Jazmine did not have a pulse and was rushed to Hughes Spalding Hospital. Although the paramedics were able to restart her heartbeat on the way to the hospital, based on the time she had been without a heartbeat, there was almost no chance that she could regain normal brain function. Jazmine was transferred to Scottish Rite Hospital, but pronounced dead shortly thereafter. At the first hospital, Appellant told the pediatric emergency room doctor that she and Johnson had been disciplining Jazmine and that Jazmine fell off a toilet seat, and she told a social worker that she had left the room and covered her ears for part of the time while Johnson was beating Jazmine.

Medical examinations and an autopsy showed that Jazmine had widespread bruising, including external bruises on her neck, shoulders, chest, abdomen, back, buttocks, arms, legs, and feet. All of these bruises were relatively fresh and had been inflicted around the same time. The bruises on her back and buttocks were consistent with being hit multiple times with a belt or being punched or kicked, and the injuries on her neck were consistent with someone holding her by the neck. She also had small lacerations on her neck and face. A portion of her hair had been ripped out of her scalp. Jazmine also had internal bruising on both lungs, which caused massive internal blood loss into her chest, and on the front, back, and right side of her scalp, which the medical examiner testified was not consistent with a head injury

caused by a fall from a toilet. The medical examiner concluded that Jazmine’s cause of death was blunt force trauma of the torso and head, with the contributing condition of soft tissue hemorrhage.

Appellant testified at trial, presenting much of the information discussed above regarding the night of Jazmine’s death and admitting that she may have caused some of the child’s bruises. However, Appellant said that contrary to what she had told the social worker, she never left the room and covered her ears. Instead, she claimed that Johnson had stopped hitting Jazmine by the time she left the room; she did not hear anything while she was out of the room; and when she returned she saw Johnson holding Jazmine by the hair and beating Jazmine and immediately told him to stop. Appellant’s defense was that Johnson inflicted the fatal wounds

and that she did not act with malice when she punished Jazmine.

(b) Appellant argues that the evidence presented at trial was legally insufficient to prove that she committed malice murder and first-degree cruelty to children because the evidence proved only that she was negligent. At trial, Appellant admitted that she sometimes hit Jazmine with a leather belt (including on the day of Jazmine’s death); that she allowed and encouraged Johnson to discipline Jazmine, including whipping Jazmine with the belt; and that she was present on the night of Jazmine’s death while Johnson hit Jazmine with a belt continually and repeatedly on her body as the child yelled and twisted trying to avoid the blows and also yanked Jazmine’s head around by her hair. The jury also heard evidence about the severity of Jazmine’s injuries and the cause of her death, and the jury was entitled to reject Appellant’s self-serving testimony discounting her role in the fatal events. See Cushenberry v. State, 300 Ga. 190, 192, 794 S.E.2d 165 (2016). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) ("It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence" (citation and punctuation omitted).)

When viewed in the light most favorable to the verdicts, the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Appellant was guilty at least as a party to the crimes of malice murder and first-degree cruelty to children. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). See also OCGA §§ 16-5-70 (b) (defining first-degree cruelty to children as "maliciously caus[ing] a child ... cruel or excessive physical or mental pain"), 16-2-20 (defining parties to a crime); Butler v. State, 292 Ga. 400, 402, 738 S.E.2d 74 (2013) ("[T]he evidence concerning the severity and scope of the injuries that [the child] sustained would permit an inference that whoever struck [her] did so maliciously and that the injuries were not the result of reasonable disciplinary measures.").

(c) Although Appellant has not raised this issue, our review of the record shows that the guilty verdict for aggravated assault should have merged into her malice murder conviction, because the aggravated assault immediately caused the fatal injuries and there was no "evidence that a ‘deliberate interval’ separated the infliction of an initial non-fatal injury from the infliction of a subsequent fatal...