Kellam v. State, S15A1913.

• Decision Date: 22 February 2016
• Docket Number: No. S15A1913.,S15A1913.
• Citation: 783 S.E.2d 117,298 Ga. 520
• Parties: KELLAM v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 520

783 S.E.2d 117

KELLAM

v.The STATE.

No. S15A1913.

Supreme Court of Georgia.

Feb. 22, 2016.

Wendell Rocky Adams, Dublin, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Michael Alexander Oldham, Asst. Atty. Gen., Louie Craig Fraser, Dist. Atty., for appellee.

BENHAM, Justice.

Appellant Jaworski Dune Kellam was convicted of malice murder and other charges arising out of the death of seventeen-month-old A'Trevia Davis, and he appeals.¹ For the reasons set forth herein, we affirm.

The evidence adduced at trial, viewed in the light most favorable to the verdict, shows the child's mother left her with appellant, who was the mother's friend, around 6:00 a.m. The mother testified that the child was fine and she saw no evidence of injuries on the child's neck either at the time she left that morning or the prior day. Later in the day, the child was rushed to the hospital after appellant claims he found her unresponsive in the bedroom.

Appellant told others who testified at trial that he had been playing with the child by throwing her on the bed, and then he left her for her nap. When he returned to the room she would not wake up and her eyes were rolled back in her head. Appellant sought help from a neighbor who testified he found the child was "slightly breathing," and that he started CPR before taking the child to the hospital. This neighbor testified he was trained and experienced in administering CPR to children. Hospital attendants examined the child and found she was not breathing, was listless, and had no pulse. Resuscitation efforts failed, and the child died.

In response to being asked, appellant told nurses that the victim had not fallen off the bed. Nurses noted injuries to the victim's wrist and neck, abrasions that likely occurred within 30 to 40 minutes before examination, and noted that the victim's abdomen had started to swell. A GBI medical examiner testified at trial that she performed an autopsy on the child to determine cause of death. During the examination, she found recent injuries to the victim's face and neck, as well as bruising around the victim's abdomen. The medical examiner's internal examination revealed bleeding within the abdomen, severe injuries to the victim's liver, hemorrhaging around the kidneys and stomach, and also revealed that the victim had bled out approximately twenty percent of her blood into her abdominal cavity. According to the medical examiner, the cause of death was a severe blunt-force injury to the abdomen. She concluded the severity of injuries to the victim's abdomen required a "tremendous" amount of blunt force in order to produce them, akin to being punched with a clenched fist, being kicked, or being in an automobile accident. She testified that these injuries were inconsistent with vigorous or misapplied CPR and with appellant's story that he had tossed the victim into the air and threw her back onto the bed.

1. Even though appellant does not challenge the sufficiency of the evidence to sustain his convictions, it is this Court's practice in murder cases to conduct an examination of the record to determine the legal sufficiency of the evidence. Having done so, we conclude the evidence adduced at trial, and summarized above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that while the victim was in appellant's care he fatally injured her in the manner alleged in the indictment and was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant asserts the trial court erred by denying his request to charge the jury on accident. Although appellant did not testify in order to give his own statement of events surrounding the child's death, he asserts that the testimony of State's witnesses who related what appellant told them was sufficient to create an issue as to whether the death was caused by accident and to require the requested charge. Whether the evidence presented is sufficient to authorize a charge on accident, or any other defense, is a question of law. Wilson v. State, 279 Ga. 104, 105(2), 610 S.E.2d 66 (2005). We find the evidence presented in this case did not authorize a charge on accident.

First, the only evidence presented regarding the cause of death was that the child's death was caused by "tremendous" blunt force trauma that could not have been the result of the child's falling off the bed or a self-inflicted injury. According to the medical examiner, the extensive internal injuries found in the child's abdomen could not have been inflicted accidentally. She further stated that there was no way the child could have sustained her injuries around the home other than by something similar to a blow from a fist or a kick. Appellant did not challenge this testimony on cross-examination, nor did he present evidence to dispute this testimony. Since accident was not reasonably raised by the evidence, the trial court did not err by failing to give a charge on that defense. See Fain v. State, 165 Ga.App. 188, 189(3), 300 S.E.2d 197 (1983). "[A]n affirmative defense of accident generally requires an admission by the defendant that [he] committed the act that caused the victim's death." Smith v. State, 296 Ga. 116, 119–120(2), 765 S.E.2d 328 (2014). At the least, a defendant's theory of accident, whether it be supported by defendant's admission or some other evidence, must be consistent with the undisputed evidence of cause of death, which was not the case here. By way of explaining what happened to the child, appellant stated to others only that he had bounced the child on the bed in play. He did not admit to others that he struck the child with "tremendous" force or even that she had fallen off the bed or onto any other object with such force. In fact, he denied to the hospital nurse that the child had fallen off the bed.

Appellant argues that whether the accidental death of the child could have resulted from his playing with the child, in the manner he related to witnesses, was a question for the jury and not the medical examiner or trial judge. Given the undisputed testimony about the extent of the child's internal injuries, however, no evidence was presented that the child could have suffered those injuries in a manner consistent with appellant's statements about bouncing the child on the bed. See Grubbs v. State, 167 Ga.App. 365, 367(2), 306 S.E.2d 334 (1983) ("While being mindful that the trial court cannot invade the province of the jury by arbitrarily rejecting a defense theory ... as unworthy of belief and refusing to charge upon the issue raised," where no evidence was presented that the child could have suffered the injury described by the doctors from the acts described by the defendant, the evidence fell short of creating an issue of accident.).

Secondly, an affirmative defense is one "that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident." (Citation and punctuation omitted.) Mangrum v. State, 285 Ga. 676, 680(6), 681 S.E.2d 130 (2009). In this case, the indictment returned against appellant accused him of the offense of murder "by inflicting blunt force trauma injuries to [the child's] abdomen with an unknown solid object...." The indictment also accused appellant of cruelty to children by maliciously causing the child "to suffer excessive physical and mental pain by inflicting blunt force trauma injuries to her abdomen with an unknown solid object...." Appellant was also accused of felony murder by causing the child's death in the commission of the felony of cruelty to children by inflicting the same injuries in the same manner as those alleged in the cruelty to children count. Appellant presented no evidence that he admitted the act described in each count of the indictment—the infliction of blunt force trauma injuries to the victim's abdomen with a solid object. Instead, the...