Lackey v. State, 36185

CourtSupreme Court of Georgia
Citation271 S.E.2d 478,246 Ga. 331
Docket NumberNo. 36185,36185
PartiesLACKEY et al. v. The STATE.
Decision Date16 September 1980

Eugene W. Harper, Jr., Hartwell, Floyd W. Keeble, Jr., Royston, for appellants.

Cleve Miller, Dist. Atty., Lindsay A. Tise, Jr., Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Michael R. Johnson, Asst. Atty. Gen., for appellee.

HILL, Justice.

Priscilla and Arthur Lackey, defendants in this case, appeal their convictions and life sentences for the murder of their infant daughter, Takeeta. We affirm.

Takeeta Lackey was born to the defendants on December 29, 1977. At birth, she was 6 or 7 weeks premature, had jaundice and Hyaline Membrane Disease and required a blood transfusion. She weighed 4 pounds 9 ounces at the time she was discharged from the hospital at 20 days old.

On the morning of September 22, 1978, defendant Priscilla Lackey returned to her home in Madison County from working as a night shift waitress in an Athens restaurant and noticed that the baby "didn't look like she usually looks." The defendants dressed and took the child to DeKalb General Hospital (instead of going to either of two nearer hospitals where they had outstanding bills) for the baby's first medical examination since being discharged from the hospital after her birth. The child was dead on arrival at DeKalb General and police investigators were immediately notified. Subsequently, the defendants were arrested and thereafter indicted for murder.

At trial, expert witnesses for the state testified that the child had died from a general deterioration of the body caused by malnutrition and dehydration while suffering an almost classic case of Childhood Maltreatment Syndrome. At the time of her death, the nine months old child weighed 51/2 pounds, had 2 rib fractures, parts of her lungs had begun to collapse, and she was so severely malnourished and dehydrated that her liver had been damaged, her skin had dried and wrinkled from a loss of underlying fatty tissue and her abdomen had swollen and was distended. Further, she had wounds of unknown origin in various stages of healing on her head, face, neck, back, chest, genital area, legs and arms.

At trial the defendants sought to explain the child's marks and poor medical condition by contending that she was an active, though sickly, child. They contended that many of the marks resulted from diaper rash or the child scratching herself and that those on the child's wrists resulted from their attempts to put socks on the child's hands to prevent scratching. Facial wounds were said to result from their attempts to use rubber bands to keep the baby's pacifier in her mouth. The rib fractures were said to have resulted from the child's fall from the bed. They contended that the child had been breast and bottle fed but had thrown up 60 to 95 percent of the time she ate. Defense attorneys extensively questioned expert witnesses for the state concerning the possibility that the child had suffered a disease which prevented retention or use of the water and nutrients consumed (including chalasia, electrolytic imbalance, hypernatremic, malabsorption syndrome, sepsis, stenosis of the gastrointestinal tract, methamolonic asylgeria, and lack of thymus gland). The state's expert witnesses testified that the child could not have caused those injuries to herself, and stated that no disease "would account for the distribution of injuries in this child and the overall condition of this child."

1. The defendants were convicted of murder and sentenced to life imprisonment. A review of the evidence adduced at the trial of this case in the light most favorable to the jury's verdict shows that a rational trier of fact could have found defendants guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial court did not err in refusing to direct a verdict of acquittal on the issue of murder at the close of the state's evidence. The testimony of the state's expert, a forensic pathologist, that in his opinion in most cases a parent who abuses a child does not intend to cause death, did not preclude submission of this case to the jury.

2. The defendants contend that the trial court erred in failing to quash and dismiss their arrest warrants and the indictments issued thereon because the issuing magistrate had a pecuniary interest in their issuance in violation of the Constitution.

In Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), decided January 10, 1977, the Supreme Court held that Georgia's statute under which a justice of the peace was paid a fee for issuance of a search warrant, but received no fee if the application for warrant was denied, was unconstitutional in that the issuing officer was not a neutral and detached magistrate but had a direct, personal, substantial pecuniary interest in the issuance of the warrant.

The General Assembly immediately passed Ga.L.1977, p. 196, amending Code § 24-1601 so as to entitle a justice of the peace to receive a fee for each application for a search warrant (as well as each application for an arrest warrant) regardless of whether the application was granted or denied. This amendment became effective February 25, 1977. The amendment is not subject to the attack made in Connally v. Georgia, supra. Allen v. State, 240 Ga. 567, 242 S.E.2d 61 (1978); Roberts v. State, 243 Ga. 604, 607, 255 S.E.2d 689 (1979).

However, the records of the justice of the peace who issued the arrest warrants in this case showed that from February 25, 1977 (the effective date of the 1977 amendment) through the end of 1978 (these arrest warrants were issued December 14, 1978), the justice of the peace had received 494 applications for arrest warrants and had issued 494 arrest warrants. Defendants contend that these figures show that the J.P. is not neutral and detached but is "an issuing magistrate", that by invariably granting all arrest warrant applications his "business" prospers, and that were his reputation otherwise his "business" would decline.

In this case we need not decide the issue sought to be raised nor need we decide whether proof of defendants' claim would necessitate evidence as to the ultimate disposition of the 494 warrants issued. Even assuming for purpose of decision (but without deciding that issue) that the arrest warrants were invalid, a new trial is not required.

The fourth amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Code Ann. § 1-804. "The simple language of the amendment applies equally to seizures of persons and to seizures of property." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980).

Under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the sanction for an unconstitutional search is exclusion of the evidence obtained as a result of that search. Similarly, the sanction for an unconstitutional arrest is exclusion of the evidence obtained as a result of that arrest (e. g., fingerprints, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); mug shot, see United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1252, 63 L.Ed.2d 537 (1980); stolen property, Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970); heroin, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); incriminating statements and sketches, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)).

However, the sanction for an unconstitutional arrest is not suppression of the prosecution. Stallings v. Splain, 253 U.S. 339, 343, 40 S.Ct. 537, 539, 64 L.Ed. 940 (1919); Gibbs v. State, 132 Ga.App. 886(2), 209 S.E.2d 691 (1974); 5 Am.Jur.2d Arrest, § 116. In the recent decision in United States v. Crews, supra, the defendant's arrest was found to be without probable cause but the Supreme Court reiterated its position (445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537, 547): "Insofar as respondent challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction... Respondent is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." See also Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952). 1

Here the defendants have made no motion to suppress evidence, either testimonial or physical, which they contend resulted from their arrest pursuant to warrants they contend are unconstitutional. 2 Hence it would serve no useful purpose to decide whether or not those arrest warrants are valid. The jury's verdict of guilty confirms the probable cause finding of the grand jury.

3. The defendants contend the trial court erred in failing to grant their motion for severance. The motion to sever was withdrawn on April 19, 1979, following a bench conference. Defense counsel then put on the record that the prosecutor had agreed to waive the death penalty. Apparently the motion to sever was withdrawn because of the prosecutor's waiver, but it was withdrawn in any event. See Code § 27-2101. Moreover, the defendants' defenses in the instant case were not antagonistic. Liggins v. State, 239 Ga. 452, 238 S.E.2d 34 (1977).

4. The defendants contend the trial court erred in denying their request for a change of venue based on...

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