Hanifa v. State
| Decision Date | 21 September 1998 |
| Docket Number | No. S98A0629., No. S98A0628 |
| Citation | 269 Ga. 797,505 S.E.2d 731 |
| Parties | HANIFA v. The STATE. KIRK v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Jonathan J. Wade, Webb, Stuckey & Lindsey, LLC, Henry Clay Collins, Peachtree City, for Kareemah Hanifa.
David J. Farnham, Monroe, for Diana D. Kirk.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, David Ellis Langford, Asst. Dist. Attys., Hon. Thurbert E. Baker, Atty. Gen., Deborah Lynn Gale, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. BENHAM, Chief Justice.
Appellants Kareemah Hanifa and Diana Kirk are two of the nine persons charged in a nine-count indictment in connection with the kidnaping and death of Nekita Waller, a fifteen-year-old girl. 1 Appellants and co-indictee Brandon Kenner were tried together; co-indictee Ahmond Dunnigan was tried separately; co-indictees Corey Lamar Gaither, Vickie Logan, and Dennis Smith McCrary each pleaded guilty to a variety of charges and testified at Hanifa and Kirk's trial. The jury returned "guilty but mentally ill" verdicts against Hanifa on seven of the nine counts, and the trial court imposed consecutive sentences of life imprisonment for malice murder and kidnaping with bodily injury. Appellant Kirk was found guilty of malice murder, felony murder/aggravated assault, and aggravated assault, and was sentenced to life imprisonment for malice murder.2
1. The State presented evidence that Nekita Waller's nude body, in a "very advanced" state of decomposition, was found August 16, 1993, 26 days after she had run away from home. The deputy medical examiner testified that he could discern from the remains that the victim had been burned on several areas of her body and had suffered blunt-force trauma to her head, stab wounds to her back, and a broken shoulder blade. Because of the body's decomposition, he was unable to ascertain the cause of the victim's death. A search of the apartment where the victim was alleged to have been killed uncovered an ice cooler's lid, a flyswatter, and a broom, each containing bloodstains consistent with the victim's DNA; a kitchen knife discolored and charred from exposure to extreme heat; an ice cooler, and a dented fire extinguisher.
The majority of the State's case against appellants consisted of the statements each of them had given police, and the testimony and statements of those co-indictees who had pleaded guilty. The introduction of each co-defendant's statement was preceded by the trial court's instruction to the jury to limit their consideration of the statement to the case against the confessing co-defendant. Through this evidence, the jury learned that on August 1, 1993, Nekita Waller accepted the offer of a ride from several young men who did not permit her to exit the car when she ascertained they were not taking her to her destination. In a statement given to police the day before Nekita's remains were found, appellant Hanifa said that the victim had stayed with her a few days before August 1993 and had disappeared after Hanifa had given her clothing. Hanifa next saw her in early August when a co-indictee, one of the men who had given the victim a ride, presented Nekita to Hanifa at an Atlanta apartment as a "gift." Hanifa then recounted three days of physical abuse suffered by the victim: upon the victim's arrival at the apartment, Hanifa grabbed and slapped her and demanded the return of her clothing, and all the men and women in the apartment slapped and punched the victim. Hanifa stated others poured rubbing alcohol on various portions of the victim's body and set her afire, and a heated kitchen knife was used to burn the victim's feet and legs. When the men left the apartment, the females continued beating the victim. Upon the men's return, the group unsuccessfully attempted to smother the victim, with several persons holding her hands and legs while another sat on a pillow placed on the victim's face. One of the men stabbed the victim in the back with a kitchen knife. Then, the victim was held upside down by several persons and her head placed in a water-filled ice cooler, causing her to drown. The victim's body was placed in a duffle bag and taken away by several of the participants.
Appellant Kirk's statement to police, introduced at trial, was similar to Hanifa's with regard to Nekita's arrival at the apartment and the stabbing and attempted suffocation of the victim. Kirk also recalled that one of the group was thwarted in an attempt to strangle the victim when the extension cord being used broke. Kirk stated she held the victim's hand while she drowned. A visitor to the apartment who was not indicted testified that he had seen the victim, Kirk, Hanifa, and others in the apartment and that Hanifa had bragged to the visitor that she and others had beaten the victim for several hours, and had displayed to the visitor some of the injuries inflicted upon the victim. A co-indictee who had pleaded guilty to aggravated assault, testified that he saw both appellants repeatedly strike the victim. Another co-indictee who had pleaded guilty to aggravated assault testified that Hanifa had struck the victim with a stereo speaker and had set the victim on fire after pouring rubbing alcohol on her, and that Kirk had hit the victim with a fire extinguisher. This co-indictee testified that both appellants talked of beating the victim and displayed the injuries they had inflicted upon her. In this co-indictee's statement to police, which was introduced into evidence, she related that Hanifa had held one of the victim's arms when suffocation was attempted, that Kirk had been the person who had placed a pillow over the victim's face and sat on it, and that both appellants had been holding the victim while she drowned. Yet another co-indictee, who had pleaded guilty to murder, kidnaping with bodily injury, aggravated assault and aggravated sodomy, testified that both appellants hit and kicked the victim, and that both of them stood there and watched while another co-indictee took a heated knife and burned the victim's feet and leg. The following day, according to this witness, Kirk showed the witness the injuries inflicted upon the victim in his absence when the victim had tried to leave the apartment. This witness identified Kirk and Hanifa as participants in the attempted suffocation and in the drowning, with Kirk being one of the persons holding the victim's head under water, and Hanifa holding the victim's left arm.
Pointing out that she was not present when Nekita was kidnaped by the men who gave her a ride, Hanifa contends her motion for directed verdict of acquittal on the kidnaping charges was erroneously denied. Such a motion is granted only when "there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or `not guilty'...." OCGA § 17-9-1(a). As there was evidence that the victim was presented to Hanifa as a "gift," that Hanifa asserted some control of the victim by ordering her to enter the apartment, and that Hanifa participated in the repeated assaults and ultimate death of the victim after having forcibly kept the victim in the apartment, there was evidence, with all reasonable deductions and inferences drawn therefrom, which authorized the jury to find Hanifa guilty of kidnaping with bodily injury. The trial court did not err when it denied the motion for directed verdict of acquittal since the evidence was sufficient to authorize a rational trier of fact to find Hanifa guilty beyond a reasonable doubt. Cowards v. State, 266 Ga. 191(1), 465 S.E.2d 677 (1996). Furthermore, the evidence summarized above was sufficient to authorize a rational trier of fact to find both appellants guilty of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Hanifa contends the admission of her co-defendants' statements violated the holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). At trial, co-defendant Kirk's incriminating statement to a police youth investigator looking for Nekita was presented to the jury through the testimony of the youth investigator. The contents of the statements made separately by Kirk and co-defendant Kenner to a police detective were read to the jury by the assistant district attorney. In Kirk's statement to the youth investigator, Hanifa was referred to by her nickname as being present in the apartment when Nekita was brought as a gift to Hanifa, and when Kirk recalled that she had whispered to the victim to act like she was being hurt when she was struck by Kirk and Hanifa. While reading the remainder of the statement, the investigator substituted "someone" or "others" when the statement referred to Hanifa or Kenner. In her reading of Kirk's statement to the police detective, the ADA referred to Hanifa by her nickname when describing the victim's arrival at the apartment, and thereafter substituted "someone" or "others" when the statement referred to Hanifa or Kenner. In reading Kenner's statement, the ADA referred to Hanifa by her nickname when relating that the victim had been slapped and hit in the face upon her arrival at the apartment. The ADA then used "someone," "someone else," and "they" when describing Hanifa's and Kirk's continuing physical abuse of the victim. In the typewritten versions of each statement introduced into evidence, the typed names of the confessor's co-defendants were crossed out and the substituted phrase ("someone," "someone else," "others," "they," etc.) was handwritten above the deletion.
In Bruton, the U.S. Supreme Court ruled that the admission of the confession of a non-testifying co-defendant inculpating the defendant deprived the defendant of the right to cross-examine witnesses, included in the Sixth Amendment right to confront...
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