Bolton v. State
| Decision Date | 29 June 1984 |
| Docket Number | 41000,Nos. 40999,s. 40999 |
| Parties | BOLTON v. The STATE. BUTLER v. The STATE. |
| Court | Georgia Supreme Court |
Walton Hardin, Washington, for Robin Butler and Franklin Connorris bolton.
Kenneth E. Goolsby, Dist. Atty., Dennis C. Sanders, Asst. Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., for the State.
Franklin Connorris Bolton and Robin Butler were jointly indicted, tried and convicted of felony murder and cruelty to children, arising out of the death of Butler's two-year-old daughter. Each was sentenced to life imprisonment for murder and a term of years for cruelty to children. 1
Bolton and Butler were represented by different counsel at trial, but are jointly represented by Butler's trial counsel on appeal. Appellate counsel has filed an Anders motion, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in Bolton's appeal and urges in Butler's appeal that the evidence does not support the verdict; that hearsay evidence was admitted over timely objection; that the court should have instructed the jury on Butler's alibi defense although Butler requested no charge on this theory; and that the court's instructions cast upon Butler the burden of proving her innocence by making no reference to her possible innocence.
1. The offense of cruelty to children was alleged in the indictment, and was charged as the underlying felony of the felony murder count of the joint indictment under which Bolton and Butler were convicted. (The verdict of the jury acquitted Bolton and Butler of malice murder.) A felony murder conviction may be predicated upon the felony of cruelty to children. Graham v. State, 251 Ga. 640, 308 S.E.2d 844 (1983). However, a defendant may not be convicted of felony murder and also be convicted of the underlying felony which supports the conviction of felony murder. Hunter v. State, 249 Ga. 114(4), 288 S.E.2d 214 (1982). The remedy in these circumstances "is not a new trial, but a reversal of the conviction of the underlying felony." Blankenship v. State, 247 Ga. 590, 591(2), 277 S.E.2d 505 (1981). Accordingly, Bolton's and Butler's convictions for cruelty to children are vacated.
2. We now review the sufficiency of the evidence in both appeals.
Bolton, Butler and Butler's two-year-old daughter, Lisa, lived together in Butler's house trailer. Lisa's doctor observed bruises and swelling on the child's face three months before her death. Bolton had put Lisa to bed on the preceding evening while Butler visited next door.
Lisa sustained further bruises four to five weeks before her death, at which time a neighbor asked Lisa what was wrong with her blood-shot right eye and was told, "Mommy hurt me." A few days before Lisa's death, she complained to Butler that the bruises on her back were hurting. Butler's written statement reads, in part, "I suspected [three weeks before Lisa's death] that Bolton had been hitting Lisa, but I did not want to say anything about it to him or anyone else because I was scared he would leave me."
Bolton struck Lisa with his open hand at least four times during the night before her death. He struck her four to five times more during the morning of the day she died.
The autopsist noted almost continuous bruises on the child's back, from her neck to her hips. Between 50 and 60 bruise marks appeared on Lisa's body, many of which, in addition to damage to her heart, diaphragm, right kidney and liver, had been inflicted...
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