Lewis v. State
| Decision Date | 29 October 1985 |
| Docket Number | No. 42406,42406 |
| Citation | 255 Ga. 101,335 S.E.2d 560 |
| Parties | LEWIS v. STATE. |
| Court | Georgia Supreme Court |
Billy R. Kight, Kight, Larsen & Flanders, Dublin (Court appointed), for Mary Lewis.
Beverly B. Hayes, Jr., Dist. Atty., Dublin, Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., Staff Asst. Atty. Gen., for the State.
Mary Lewis was convicted of the malice murder of her infant daughter, Joanne, at a bench trial before a judge of the Superior Court of Laurens County. We affirm.
On the evening of June 1, 1984, a Dublin funeral home received a call notifying them of a deceased female infant at the Lewis' residence. The funeral home, in turn, notified the East Dublin Police Department and the Laurens County Coroner. A police officer arrived at the Lewis home and found the father standing outside. The officer asked him if he could see the deceased infant. The father then led the officer to a bedroom in the Lewis home. When the coroner arrived he found the baby lying on her back with arms outstretched and stiff from rigor mortis. The coroner by flashlight could see that her lips were cut and badly torn. He asked the parents what had happened. They said that the injuries had occurred while they were trying to feed the girl. The coroner re-examined the body of the ten-and-one-half-month-old child and suggested that the police officer read the Miranda warnings to the parents. The police officer did so and placed them under arrest. After the couple agreed to waive their right to silence, the coroner again asked what had happened. The parents repeated their statements about feeding difficulties.
The parents were taken to jail. Soon after arriving, Mrs. Lewis was questioned by Melodie Smith, a case worker with the Laurens County Department of Family and Children's Services. Ms. Smith asked Mrs. Lewis several questions relating to placement of her other seven children, the family income and her financial ability to take care of her children. Mrs. Lewis told her that the couple had been getting AFDC assistance and food stamps, and had plenty of food at home. She also said the child had not seen a doctor for eight-and-one-half months. Ms. Smith then asked Mrs. Lewis what had happened to the deceased infant that day. Mrs. Lewis told her that she and her husband had left their children at home unattended to pay some bills. When they returned, she said, they found the baby breathing erratically. According to Mrs. Lewis, the husband checked a child care manual but could not find the cause of the baby's ailment. She also told Ms. Smith that the couple had made a bad mistake. Ms. Smith repeated Mrs. Lewis' statements during testimony at trial.
On June 2, 1984, a Georgia Bureau of Investigation agent examined the child's body along with the Laurens County Coroner. Later in his investigation, the agent talked to Mrs. Lewis' ten-year-old daughter, Tapetha Love, about her parents' treatment of her deceased sister. In the affidavit to support the issuance of a search warrant, the agent stated that Tapetha had told him of witnessing her mother bind the infant with belts and tape her eyes and mouth shut, as well as whipping the baby with a belt. The agent orally testified before the magistrate of Tapetha's reports of her mother stuffing paper towels in the infant's mouth while taping her eyes and mouth shut and strapping her to the bed. The affidavit also noted that the child had received severe abuse and that her death had been diagnosed as being caused by pneumonia secondary to malnutrition. The agent told the magistrate he was seeking the warrant to find the items described in the reports of abuse. A warrant was issued and a search of the Lewis' home turned up several belts and a strip of electrical tape, which was admitted into evidence at trial.
Testimony by Mrs. Lewis' mother, Rebecca Mercer, revealed that eight days before the death, Mrs. Mercer had urged her daughter to take the infant to the doctor. Mrs. Lewis refused. Mrs. Mercer testified that she offered to take the child herself and pay for the medical services, but the daughter again refused.
The final autopsy report showed that the ten-month-old child weighed only eight-and-one-half pounds. Her extremities were underdeveloped due to malnutrition. The body was also marked by numerous abrasions and sores around her face and lips, decaying tissue inside the mouth, and severe rashes on her lower body. The doctor performing the autopsy stated at trial that he believed the infant's condition was a result of weeks, and maybe months, of neglect.
In the trial judge's verdict, he found that the child had been grossly neglected. The judge also found the neglect caused a condition of malnutrition in the infant and that the acts of neglect were intentional and deliberate on the part of Mrs. Lewis. Although the State sought the death penalty, the judge sentenced Mrs. Lewis to life in prison. The judge denied Mrs. Lewis' motion for a new trial and she appeals.
1. In her first enumeration of error, Mrs. Lewis claims that statements she made to the DFACS worker should have been suppressed because they resulted from a warrantless, illegal arrest. As authority Mrs. Lewis cites Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), for the proposition that a police officer has no right to arrest a suspect in a private home without an arrest warrant and in the absence of exigent circumstances. Thus, Mrs. Lewis claims, since the East Dublin officer was in her home and arrested her without a warrant and in the absence of exigent circumstances, her arrest was illegal and any statements made to the DFACS worker are tainted fruit of that illegal arrest.
The facts in Payton involve a warrantless and nonconsensual entry by police into a suspect's home to make an arrest. Here, testimony of the officer on the scene makes it clear that he and the coroner were in the Lewis home with the husband's consent, and without any objection by Mrs. Lewis. In fact, at the time the husband led the police officer into the bedroom of his house, there were no charges pending against the couple. Thus, the police officer was legitimately on the premises at the time of Mrs. Lewis' arrest, and Payton does not apply.
We note that the police officer acted with the requisite statutory authority for making an arrest. OCGA § 17-4-20, which spells out situations under which arrests are lawful, provides: "An arrest for a crime may be made by a law enforcement officer either under a warrant or without a warrant ... if the officer has probable cause to believe that an act of family violence, as defined in Code § 19-13-1, has been committed...." OCGA § 19-13-1 defines family violence as "(1) Any felony; or (2) Commission of offenses of battery, assault, criminal damage to property, unlawful restraint or criminal trespass" between family members.
2. Mrs. Lewis also claims the evidence that resulted from the search of her home should have been suppressed by the trial court because the magistrate did not have probable cause to issue the warrant. She contends the magistrate was not presented with sufficient facts to ascertain the underlying circumstances of the alleged crime. She also claims the agent's affidavit and testimony to the magistrate left an absolute void as to establishing the time frame for the occurrence of events.
OCGA § 17-5-21 provides that a warrant will issue upon facts "sufficient to show probable cause that a crime is being committed or has been committed...." The test of probable cause is whether it would justify a person of reasonable caution in believing that an offense has been or is being committed, and this requires probability, which is less than a certainty but more than mere suspicion or possibility. Brown v. State, 151 Ga.App....
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