Grady v. State
| Decision Date | 27 August 1997 |
| Docket Number | No. F-96-23,F-96-23 |
| Citation | 947 P.2d 1069,1997 OK CR 67 |
| Parties | 1997 OK CR 67 Richard Earl GRADY, Jr., Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Irven R. Box, Oklahoma City, for Defendant at trial.
Danny G. Lohmann, Appellate Defense Counsel, Norman, for Appellant on appeal.
Brad Leverett, Asst. Dist. Atty., Altus, for the State.
W.A. Drew Edmondson, Atty. Gen. of Oklahoma and Steven E. Lohr, Asst. Atty. Gen., Oklahoma City, for appellee.
Richard Earl Grady, Jr., was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(C), in the District Court of Jackson County, Case No. CF-95-42. In accordance with the jury's recommendation the Honorable Richard Darby sentenced Grady to life imprisonment without the possibility of parole. 1 Grady has perfected his appeal of the conviction. After thorough review of the entire record before us on appeal we affirm.
Grady kept Olivia McGowan at his in-home day care center. On January 26, 1995, an Altus emergency room doctor treated nine-month-old Olivia for an ear infection and cold. Other than those complaints Olivia was in good health and showed no signs of head injury. Deborah McGowan left Olivia with Grady at 6:45 a.m. on January 27. Olivia was sleepy from medication but appeared normal otherwise. Between 11:00 and 11:50 a.m. Grady's wife saw Olivia alert, holding and drinking from her bottle, smiling and giggling. She saw no bruises or signs of head injury. At approximately 12:20 p.m. emergency medical personnel found Olivia unconscious and having seizures. Olivia was taken to Altus Air Force Base Hospital and then to Children's Hospital in Oklahoma City. She never regained consciousness and was pronounced brain dead on January 28. An autopsy revealed bruises, skull fractures, a large subdural hematoma, a swollen brain, and extensive retinal hemorrhaging. The medical examiner testified the injuries were consistent with shaken baby syndrome and blunt force trauma.
In his first proposition Grady claims the jury was not properly instructed as to the elements of the offense. He did not object to the instructions at trial and has waived all but plain error. Grady was convicted of first degree murder in the commission of child abuse, which requires the willful or malicious injuring, torturing, maiming or use of unreasonable force resulting in the death of a child. 2 Instruction No. 8 read:
No person may be convicted of murder in the first degree unless the state has proved beyond a reasonable doubt each element of the crime. The elements are: FIRST, the death of a human; SECOND, the death occurred as a result of an act or event which happened in the commission of a Child Abuse; THIRD, caused by the defendant while in the commission of a Child Abuse; FOURTH, the elements of the Child Abuse the Defendant is alleged to have been in the commission of which are as follows: (A) Wilfully [sic] or maliciously; (B) injuring, torturing, maiming, or using unreasonable force; (C) upon a child under the age of eighteen (18).
This accurately instructed the jury on the elements of child murder. Instruction 10 defined several terms for the jury:
Maiming--Infliction upon another of a physical injury that disables, performed with the intent to cause injury.
Malicious--The term imports a wish to vex, annoy, or injure another person.
Torture--Infliction of severe pain by unlawful acts.
Unreasonable Force--More than that ordinarily used as a means of discipline.
Wilful [sic]--Purposeful. "Wilful" [sic] does not require any intent to violate the law, or to injure another, or to acquire any advantage. [Emphasis added.]
The definitions are accurate as a matter of law. 3 Grady complains the definition of "willful" was confusing in the context of this crime and allowed the jury to convict him even if they found he had no intent to injure Olivia. We agree this instruction is confusing and ought not to be given.
Grady relies on Hockersmith v. State 4 and Bannister v. State 5 for his claim that the error in instructions is reversible. In Hockersmith, the jury was not instructed on the specific elements of child abuse murder and received the confusing "willful" instruction above. We held this combination of instructions required reversal because the jury was not told the defendant had to act in a willful or malicious manner, with intent to injure, torture, maim, or use unreasonable force, as the statute requires. The definition of "willful" did not require intent to injure. In the absence of a proper instruction on the elements of child murder this instruction allowed the jury to convict Hockersmith without finding he had any intent to injure the victim, which directly contradicted the statutory elements of the crime. 6
In Bannister, the "willful" instruction was given along with an instruction on the elements of the crime. In that case, the instruction included but did not clearly set forth the elements of child abuse murder. We relied on Hockersmith and reversed. Bannister also contained two other grounds for reversal: a failure to instruct regarding accomplice testimony, and improper instruction on other crimes evidence. 7 Although we determined that the inclusion of the "willful" instruction was plain error, it was the combination of error in that case which required reversal.
Grady's jury was properly instructed on the elements of the crime of child abuse murder, including the requirement of intent to injure. 8 We hold that the phrase "intent to injure" in the definition of "willful", standing alone, does not require reversal. This proposition is denied.
In Proposition II Grady claims the evidence was insufficient to sustain his conviction. Insofar as he relies on the error in instructions discussed in Proposition I, this claim must fail. Grady also argues that, even under proper instruction, the State did not prove he willfully or maliciously used unreasonable force to cause Olivia's death. This claim fails to consider the evidence presented at trial. Testimony showed: (1) the still-immobile Olivia had three separate unexplained bruises after being put in Grady's care; (2) Olivia was often fussy and Grady would become angry and rough with her; (3) Grady especially became angry when changing Olivia's diapers, and sometimes carried her to the changing table by one arm or leg; (4) while Olivia cried hysterically in her baby seat, Grady said she was always like that, complained he couldn't do anything with her, and kicked the seat into a glass door; (5) aside from an ear infection and cold, Olivia was sleepy but alert when her mother left her with Grady at 6:45 a.m. on January 27; (6) before 11:50 a.m. that day Olivia was alert, giggling, holding her bottle and drinking; (7) Grady was the only adult with Olivia from 11:50 a.m. until emergency personnel arrived; (8) Grady told a doctor he was changing Olivia's diaper when she became rigid and unresponsive; (9) after a complete medical examination and autopsy the medical witnesses agreed Olivia's injuries would have resulted in immediate severe symptoms, and she would have been blind, unable to eat, hold objects, smile, or respond in any way; and (10) the medical witnesses agreed that these injuries could not have resulted from a cold or ear infection. This circumstantial evidence tends to exclude every reasonable hypothesis other than guilt, 9 and this proposition is denied.
Grady claims in Proposition III that his trial counsel was ineffective for failing to call a medical witness who told police she thought the injuries occurred before Olivia went to Grady's on January 27. 10 Grady must show both that counsel's performance was deficient, and the deficient performance created errors so serious as to deprive him of a fair trial with reliable results. 11 There is a strong presumption that counsel's conduct was professional and Grady must overcome the presumption that counsel's conduct equaled sound trial strategy. 12 If this Court can dispose of a claim on the grounds of lack of prejudice, we need not determine whether counsel's performance was deficient. 13
Grady cannot meet this standard. He bases his claim on counsel's failure to call Dr. Stewart, an Altus doctor who saw Olivia shortly after she was injured and before the extent of her injuries was known. Grady contends that in a telephone interview apparently conducted on January 28 Dr. Stewart told police she believed the injuries might have occurred on Thursday, January 26, rather than Friday. Although counsel did not call Dr. Stewart, he did call two witnesses in the first stage and eight in the second stage, and effectively used the State's witnesses to develop his theory that Olivia's father caused her injuries. Counsel also cross-examined Dr. Cohen, who also saw Olivia when she was initially admitted to the hospital. Dr. Cohen stated her initial opinion was that Olivia was injured early in the morning of January 27, but that opinion changed as she received a more thorough medical history and discovered the extent of Olivia's injuries. Given Dr. Cohen's testimony, counsel's decision not to call Dr. Stewart may have been reasonable trial strategy, and this Court will not second-guess counsel's motives. In any case Grady cannot show he was prejudiced by this decision. Dr. Cohen did testify her initial opinion was the injuries had occurred before Grady saw Olivia. Had Dr. Stewart testified to the same opinion, the jury would have compared it against Dr. Cohen's changed opinion as well as those of Olivia's attending physician from Children's Hospital, the medical examiner, and a Children's Hospital supervising physician who reviewed the records and testified as an expert. All of these witnesses agreed Olivia's injuries were massive and would have caused immediate and unmistakable symptoms irreconcilable with...
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