Lindo v. State

• Decision Date: 15 March 2006
• Docket Number: No. A05A2098.,A05A2098.
• Citation: 628 S.E.2d 665,278 Ga. App. 228
• Parties: LINDO v. The STATE.
• Court: Georgia Court of Appeals

278 Ga. App. 228

628 S.E.2d 665

LINDO v. The STATE.

No. A05A2098.

Court of Appeals of Georgia.

March 15, 2006.

COPYRIGHT MATERIAL OMITTED

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Anne E. Green, Assistant District Attorney, for appellee.

BARNES, Judge.

Fernando Lindo appeals his conviction for the aggravated battery¹ of his five-week-old son by shaking him and causing brain damage. He contends the trial court erred by refusing to accept his waiver of his right to a jury trial, by giving an erroneous jury charge on the intent required to commit the crime, and by denying his motion for a directed verdict of acquittal. Lindo also contends his trial counsel was ineffective. After his motion for new trial was denied, Lindo filed this appeal. Finding no reversible error, we affirm.

1. Lindo first contends that the trial court erred by refusing to exercise its discretion and consider his request to waive his right to trial by jury. The State first argues that by not stating an exception to this ruling, making an objection, or otherwise preserving the issue after the trial court denied his request for a bench trial, Lindo has somehow failed to preserve this issue for appeal. This argument is without merit. The State of Georgia

has long since abolished the common law's requirement of a "bill of exceptions." Once the trial court has addressed a party's motion or objection and has issued a ruling, the party adversely affected need not then further object or "except" to the trial court's ruling in order to preserve the issue for appeal.

(Citation omitted.) Davie v. State, 265 Ga. 800, 802(2), 463 S.E.2d 112 (1995). See OCGA § 5-6-49(a).

Contrary to Lindo's argument, however, even though defendants may waive or renounce what the law has established in their favor, they have no right to demand that they be tried by the court without a jury. Palmer v. State, 195 Ga. 661, 669(1), 25 S.E.2d 295 (1943).² Therefore, the trial court did not err by denying Lindo's request for a bench trial.

Nevertheless, Lindo further argues that by stating "[u]nless and until the Supreme Court makes some determination about this Court's discretion in granting or not granting nonjury trials, I don't intend to grant any," the trial court adopted a mechanical policy never to grant bench trials, and thus has abdicated its judicial responsibility. Lindo supports this argument by citing to cases in which we reversed trial courts for adopting mechanical formulas or policies in other areas.

A significant difference exists between those cases and this case. Here, the trial court refused to grant Lindo's request for a nonjury trial, but the legislature has not created a procedure in which defendants have the right to request nonjury trials or created a procedure in which the trial court in the exercise of its discretion must consider whether to grant such requests. In the cases on which Lindo relies, however, the legislature created the procedures in which the trial courts were required to exercise their discretion.

We have held that because broad sentencing discretion is vested in trial courts, they have the duty to exercise that discretion in all aspects of sentencing. Thus a trial court's use of a mechanical sentencing policy about any part of a sentence is a refusal to exercise its discretion and an abdication of its judicial responsibility. Cottingham v. State, 206 Ga.App. 197, 199(3), 424 S.E.2d 794 (1992). In other cases, we held that, because the legislature specifically provided for first offender treatment as an option in felony cases in the trial court's discretion, adhering to a mechanical sentencing formula that excluded first offender treatment was a refusal to exercise the discretion vested by the legislature in the court. See, e.g., Stovall v. State, 251 Ga.App. 7, 10(2), 553 S.E.2d 297 (2001).

In the same manner we held that refusing to consider a plea of nolo contendere under the privilege granted defendants by the legislature was also an abdication of the court's judicial responsibility. Vanegas v. State, 249 Ga.App. 76, 77(1), 547 S.E.2d 718 (2001). We have also held that a trial court's refusal even to consider granting bail constituted a similar abdication. Knapp v. State, 223 Ga.App. 267, 268, 477 S.E.2d 621 (1996).

The legislature, however, has not vested the trial court with the authority to grant requests for nonjury trials or created a procedure during which the courts must consider such requests. Therefore, nothing prohibits trial courts from adopting a policy that ensures that defendants will receive the jury trial to which they are constitutionally entitled. "The right to trial by jury shall remain inviolate. . . ." Ga. Const. of 1983, Art. I, Sec. I, Par. XI.

Although a better practice might be for trial courts to consider each request for a bench trial on its merits, we find a significant difference exists between refusing to exercise discretion inherent in the trial court, and refusing to exercise discretion vested by the legislature. In these circumstances, the trial court did not err by denying Lindo's request for a nonjury trial.

2. Lindo further contends the trial court improperly charged the jury on the intent required to commit aggravated battery. Because Lindo neither requested the charge he contends should have been given, nor objected to the charge as given, this issue is not properly before us. Thus, we will consider this enumeration of error in connection with Lindo's assertion that his defense counsel was ineffective for not preserving these charging errors for appellate review.

3. Lindo also contends that the trial court erred by denying his motion for a directed verdict of acquittal because the State's evidence was entirely circumstantial, the State did not prove that he intended to cause bodily harm to his son, and the evidence did not show that the child's brain was rendered useless, as was alleged in the indictment because the evidence showed that he could perform some functions even though the now two-year-old child could not crawl or walk.

Lindo's motion for a directed verdict of acquittal, however, was based solely³ on the State's failure to prove the required intent. Therefore, whether the State proved that the child's brain was rendered useless is not properly before us because it was not presented to the trial court and is being raised for the first time on appeal. Cooper v. State, 173 Ga.App. 254, 256(1), 325 S.E.2d 877 (1985). In any event, this argument is without merit because "[w]hen the evidence shows that [battered victims have] suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been `deprived of their brain,' thus suffering an aggravated battery." Miller v. State, 275 Ga. 730, 732(1), 571 S.E.2d 788 (2002). See also Jackson v. State, 153 Ga.App. 584, 585(1), 266 S.E.2d 273 (1980) (victim deprived of hearing where ear is capable of hearing no more than a "slight beep"). A motion for a directed verdict of acquittal only should be granted

when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1(a). The test established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. [Cit.]

Coley v. State, 272 Ga.App. 446, 450(5), 612 S.E.2d 608 (2005). When employing this test, a reviewing court may consider all the evidence in the case, Bethay v. State, 235 Ga. 371, 375(1), 219 S.E.2d 743 (1975), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436 (1984).

Viewed most favorably in support of the verdict, the evidence shows that Victoria Bassett, Lindo's girlfriend and the mother of the victim, left the then five-week-old baby at home with Lindo while she worked. No one else was with them. The mother testified that her son appeared normal before she went to work, but when she returned he appeared to have a cold, he had a little bit of blood in his eyes, he sounded hoarse when he cried, and his cry was "hoarse and vague." When she asked Lindo what was wrong with the child, he agreed he probably had a cold. Later, when she attempted to give the baby Tylenol, he vomited.

The mother, baby, and Lindo were in the process of moving to Columbus, Georgia, and when they arrived there, they decided to take the baby to the hospital because the baby seemed sick and "kind of lifeless." The baby's maternal grandmother saw that the baby had bloodshot eyes, was "twitching," and was making a "little moaning noise," and decided to take him to the hospital. At first the doctors thought the baby might have meningitis, but after a CAT scan, they concluded that he had shaken baby syndrome. Consequently, they flew the baby by helicopter to Children's Hospital in Atlanta.

After the mother returned to Columbus from Atlanta, Lindo told her that while he was carrying the baby, he tripped and fell, and the baby bumped his head on a chest. Earlier, Lindo kept crying and saying that he "hoped he didn't hurt him," and that he "hoped he didn't play too rough" with him.

The mother testified at the time of trial that, even though her son was 22 months old he could not crawl, walk, or sit up, and while he could roll over, if he got mad or excited, he would tense up "like a log." She also testified that she did not shake the baby.

The prosecution introduced Lindo's statement to the police in which he related that he stumbled over some boots while carrying the child and that the child hit his head on a chest. Lindo said that the baby continued to cry and he...