Brennan v. State

Citation868 S.E.2d 782
Decision Date01 February 2022
Docket NumberS21A1183
Parties BRENNAN v. The STATE.
CourtSupreme Court of Georgia

Donald Robert Roch, II, The Roch Firm, P.C., 291 Jarvis Street, Canton, Georgia 30114, Kyle E. Koester, Law Offices of Kyle E. Koester, LLC, 420 Creekstone Ridge, Woodstock, Georgia 30188, for Appellant.

John Thomas Durden, Jr., District Attorney, Atlantic Judicial Circuit District Attorney's Office, 945 E.G. Miles Parkway, Hinesville, Georgia 31313, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

LaGrua, Justice.

Appellant Erica Brennan was convicted of felony murder and other crimes in connection with the scalding death of her eight-year-old stepdaughter, Sarah Harris. On appeal, Appellant contends: (1) the trial court erred by conducting a pre-trial conference pursuant to Uniform Superior Court Rule ("USCR") 33.5 (B) outside her presence in violation of her federal and state constitutional rights; (2) the trial court erred by initiating an ex parte conversation with the lead detective, and by failing to disclose this conversation to counsel; and (3) her second-chair counsel rendered ineffective assistance by being mentally and physically incapable of assisting in Appellant's trial.1 For the reasons explained below, we affirm.

1. The evidence presented at trial showed the following. In July 2007, Appellant was married to Russell Brennan. They lived together with Harris, who was Brennan's daughter, as well as Appellant's seven-year-old son. At the time, Brennan was a sergeant in the United States Army, stationed at Fort Stewart but deployed to Iraq. On the night of July 6, Brennan was en route home for two weeks of leave.

On July 6 around 4:30 p.m., Appellant called her friend, Jennifer Madron, whose husband was also stationed at Fort Stewart and deployed to Iraq. According to Madron, Appellant invited Madron and her children to Appellant's house to go swimming, but Madron declined. Around 7:30 p.m., Appellant called Madron, and they had a 15 to 20 minute friendly, normal conversation. Ten minutes later, Appellant called Madron, said Harris had been burned, and asked for advice on how to "ease the pain." Madron, assuming Harris had been sunburned while at the pool earlier that day, recommended pouring canned milk on Harris's burns. Appellant then poured canned milk on Harris. Around 8:00 p.m., Appellant called Madron and said Harris's "skin was falling off." During this phone call, Madron heard Harris crying in the background. Appellant and Madron agreed to meet in a parking lot at Fort Stewart.

After parking their cars, Appellant walked around to her passenger door, said to Madron, "Look what [Harris] did," and opened the passenger door. Harris was sitting in the car, whimpering and crying, wearing shorts and a shirt, and "[a]ll her skin was gone." Madron insisted that Appellant take Harris to the hospital. Appellant disagreed and wanted to treat Harris's burns herself. Madron threatened to call the military police, and Appellant eventually agreed to take Harris to the hospital. Madron agreed to pick up Appellant's son.

While leaving Fort Stewart, Madron was pulled over by the military police for using her cell phone while driving. Madron explained the situation concerning Harris to the military police officer and requested the U.S. Army Criminal Investigation Division ("CID") be sent to the hospital to investigate. The military police officer told Madron that she would make sure CID went to the hospital.

While Madron was picking up Appellant's son, Appellant carried Harris into the emergency room of the Fort Stewart hospital. Hospital staff observed burns on 75 to 80% of Harris's body; Harris had no burns on her face, upper chest, or knees. Harris had third-degree burns

on her feet; the burns on the rest of her body were between second- and third-degree burns. Harris's burns were "clearly demarcated," meaning "that they were clearly visible, not in an erratic pattern, but a clear pattern." Harris had "stocking burns" on her feet meaning there was a clear line of demarcation demonstrating that her feet burned for longer than the rest of her body. Harris also had some bruising on her lower abdomen and left thigh; she was alert and complained about the pain she was experiencing.

Appellant told a nurse that Harris had obtained the bruises from "roughhousing" with Appellant's son. Appellant had directed Harris to take a bath, and she later found Harris lying in the water. Appellant stated that her husband had set the water heater at 180 degrees, and Appellant never changed it. The nurse further testified that Appellant was preoccupied with who was going to pick up her husband from the airport that night.

While at the hospital, Appellant met with a Georgia Division of Family and Children Services ("DFCS") caseworker. Appellant told the caseworker that she had directed Harris to take "a hot shower," and that Harris "ran her own bathwater." Appellant also stated that there had been "problems gauging the temperature of the water," and she had reported it to the landlord. Appellant further stated she was having problems with Harris and that "when [Harris] has contact with her bio[logical] mother,"2 Harris "acts out" by biting her nails and pulling her hair out.

A military police officer also spoke with Appellant at the hospital, and he testified that he had not observed any burns on Appellant's hands or arms that night. Sometime that evening, Harris was transported to an Augusta hospital for more specialized care.

Around 9:00 p.m., Appellant called Stacy McBride3 and told McBride that Brennan was going to kill her because Harris "had an accident." Specifically, Appellant told McBride that she had directed Harris "to run herself a warm bath" and had "third-degree burns over 80 percent of her body." During the course of the evening, Appellant made 10 to 12 calls to McBride. During these calls, Appellant: (1) informed McBride that Harris was transferred and asked "if it would look bad if she didn't go" to the Augusta hospital; (2) requested that Brennan's flight be rerouted to Augusta; (3) explained that Harris was bruised when Appellant "thr[ew] [Harris] in the air" while in the pool and "grabbed [Harris] by her stomach midsection" to prevent her from swallowing too much water; (4) stated that "[Harris] had overheard a conversation that [Appellant] was having ... about [Harris's] biological mother being in jail,"4 which "set [Harris] off to misbehave"; and (5) stated that Harris "had intentionally done this in order to ruin the rest and relaxation time that she was to spend with [Brennan] and that [Harris was] always acting out and doing things and misbehaving and this all was [Harris's] fault."

The lead detective met with Appellant at the Fort Stewart hospital. Appellant told the lead detective that Harris "had gotten into a tub of water and had caused herself to be burned" and that Harris had done so because when Harris "hear[s] from or g[ets] on the phone with her biological mother, she would act out." Appellant consented to law enforcement officers searching her house, and she and the lead detective agreed to meet there after Appellant retrieved her keys from Madron.

While at Madron's house, Appellant stated to her that "[Harris] was going to ruin her [leave] with [Brennan]" and that "[Harris] wasn't the angel that everybody thought she was, that she was a little demon child." When Madron asked about Harris's burns, Appellant stated, "[Harris] was on the phone with her mom, Christy, and, when she got off the phone, she was acting strange and that she went and ran the bathtub water and just laid in it."

Upon arrival at Appellant's house, the lead detective observed empty containers of canned milk in the trash can, residue from the canned milk in the bathtub and sink, and that the water heater was set between 130 and 135 degrees. Appellant told the lead detective that Harris was bruised when Appellant was "throwing [Harris] up and catching her" in the pool. Appellant further stated she drew Harris a bath to help alleviate the bruising, and she later found Harris "lying on her back" in the water. Appellant also reiterated her earlier statement to the lead detective that Harris "acted out and would bite herself and she would do this after talking with her real mother."

The next day, Brennan reported the water heater to the landlords, who turned down the temperature on the water heater to an unspecified degree.5 Shortly thereafter, the lead detective and other law enforcement officers went to Appellant's house to look at the water heater again. The lead detective turned the water heater back up to 130 to 135 degrees, and noted that the water flowing out of a faucet registered at 140 degrees.

Harris died on July 15. According to the medical examiner, Harris died of thermal burns due to scalding. The medical examiner found no trauma or wounds other than scalding.

After Harris's death, Appellant was arrested. A fellow inmate testified at trial that she and Appellant spoke about this case while Appellant was in custody. According to the inmate, Appellant explained she thought "heat would take away the bruise," and said, "[T]he baby is dead. Oh, well."

At trial, the medical examiner testified that Harris suffered immersion burns, and he explained that "[a]n immersion burn occurs when somebody is forced into the water, and it's characterized by symmetrical burning over the area of the body as opposed to a splash burn ... [like] if you walked into a shower that was too hot, we don't expect to see burns on one side of the body." He further explained that evidence-based practice and research says that "lines of clear demarcation" are consistent with submersion and child abuse. The nurse and doctor who treated Harris at the Fort Stewart hospital also testified that...

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