Linson v. The State

• Decision Date: 04 October 2010
• Docket Number: No. S10A1225.,S10A1225.
• Citation: 287 Ga. 881,700 S.E.2d 394
• Parties: LINSON v. The STATE.
• Court: Georgia Supreme Court

287 Ga. 881

700 S.E.2d 394

LINSON

v.The STATE.

No. S10A1225.

Supreme Court of Georgia.

Oct. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Julianne W. Holliday, LaGrange, for appellant.

Monique Lynn Kirby, Asst. Dist. Atty., Thurbert E. Baker, Attorney General, Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Asst. Dist. Atty., Sheila E. Gallow, Assistant Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

CARLEY, Presiding Justice.

Appellant Vickie Faye Linson was charged with malice murder, felony murder, and cruelty to children, and, after a jury trial, she was found guilty of each offense. The trial court entered judgments of conviction on the guilty verdicts and imposed concurrent sentences of life imprisonment for malice murder and felony murder and 20 years for cruelty to children. A motion for new trial was denied, and Appellant appeals. ^*

1. Construed most strongly in support of the verdicts, the evidence shows that the victim of all crimes charged was Zi'Terrian Linson, who was Appellant's 16-month-old son, was afraid of her, and had been physically abused by her on numerous occasions. Mario Johnson, who was Appellant's codefendant at trial, was her boyfriend and lived in the same apartment. On the morning of January 2, 2008, Appellant awakened Johnson and asked him to take care of the victim. She did not follow her usual practice of notifying her child care provider that the victim would not be coming that day. Although Appellant claimed that she heard the victim fall out of bed, she left for work, later telling friends that she heard him crying and knew that he was dying.

Johnson tried to console the victim, finally realized something was wrong, and sought help in a panicked and distraught manner. Emergency personnel found the victim cool to the touch and in a very grave condition. Appellant arrived and was unemotional, trying to obtain information from Johnson, and declining to ride in the ambulance or with the police escort. Having learned that the victim's body was cool, Appellant falsely reported a problem with the apartment's heating unit. She later incorrectly told police that she did not have a phone number for the child care provider. At the hospital, Johnson continued to be distraught and Appellant was unconcerned. Several witnesses testified to Appellant's lack of grief and apparently insincere displays of grief when the victim's death was announced and at the time of the funeral.

The forensic pathologist testified that the victim had extensive external and internal injuries which were caused by blunt force trauma, including a great amount of force to the abdomen, and were inconsistent with a single fall. The primary cause of death was internal bleeding from extensive lacerations to the liver. Relying on part of a statement by Johnson as to time and medical testimony presented by the defense, Appellant contends that the fatal injury was likely inflicted after she left home. However, according to the pathologist's testimony and contrary to Appellant's contention, the nature of the victim's injuries and the temperature of his body indicate that those injuries and even the death itself could have occurred well before Appellant left for work.

Both Appellant and Johnson stipulated to the admissibility of polygraph examinations. The examination of Johnson was inconclusive as to whether he caused the injuries to the victim's stomach, but Appellant's examination strongly indicated deception in all of her relevant responses. See Johnson v. State, 281 Ga. 770, 771(1), 642 S.E.2d 827 (2007); Hendrick v. State, 257 Ga. 514, 515(3), 361 S.E.2d 169 (1987).

“ ‘ “(Q)uestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Cit.)’ (Cit.) It is the role of the jury to

resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. (Cit.)” [Cit.]

Phillips v. State, 287 Ga. 560, 561-562(1), 697 S.E.2d 818 (2010). Reviewing the evidence in the light most favorable to the verdicts, we conclude that it was sufficient to exclude every reasonable hypothesis except for that of Appellant's guilt and to authorize a rational trier of fact to find her guilty of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 281 Ga. 705-706(1), 642 S.E.2d 656 (2007).

2. Appellant urges that the trial court's conduct, rulings, and comments compromised its neutrality and violated Appellant's constitutional right to a fair, adversarial, and reliable trial, as codified in OCGA § 17-8-57.

The State argues that, because Appellant failed to object to any of the first three comments of which she complains, she has waived any error.

However, we have clarified that a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. [Cit.] On appeal, the issue is simply whether there was such a violation. If so, “(i)t is well established that th(e) statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. (Cits.)” [Cit.]

State v. Gardner, 286 Ga. 633, 634, 690 S.E.2d 164 (2010).

OCGA § 17-8-57 mandates reversal of the judgment in a criminal case where the trial court expresses its opinion “as to what has or has not been proved or as to the guilt of the accused....” “Such reversal is required, though, only when such comments are made in the presence of the jury. [Cit.]” Johnson v. State, 278 Ga. 344, 346(2), 602 S.E.2d 623 (2004). See also Lockaby v. State, 265 Ga.App. 527, 528(1), 594 S.E.2d 729 (2004) ( “ ‘the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced’ ”). One comment of which Appellant complains occurred when the trial court, in an effort to keep the proceedings under control and to prevent a disturbance, warned Appellant outside the presence of the jury that she would be removed from the courtroom if she could not stay under control. “We find nothing improper in the trial court's conduct.” Cheek v. State, 265 Ga.App. 15, 19(3), 593 S.E.2d 55 (2003). See also Johnson v. State, supra.

Appellant also argues that the trial court erroneously expressed its opinion when it stated during preliminary instructions that the State may not use all of its witnesses and “may think they don't need them all,” and when Johnson's videotaped statement was stopped and the trial court explained to the jury that the parties were trying to shorten it and not be repetitive. The first comment was made in the context of an explanation of the procedures that would be followed for the receipt of evidence. The context of the second comment indicates that the trial court was explaining that the parties had agreed to present only part of the long videotape and were adhering to that agreement. Because these comments were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in the trial, “they do not constitute a basis for reversal.” John v. State, 282 Ga. 792, 795(3), 653 S.E.2d 435 (2007). See also Humphrey v. State, 249 Ga.App. 805, 809(4), 549 S.E.2d 144 (2001) (“comments that are ministerial do not violate” OCGA § 17-8-57).

Appellant further complains that the trial court, after noting that the prosecutor indicated in closing argument that she did not believe that Johnson was guilty of the murder charges, instructed the jury to fill in not guilty on both murder counts on Johnson's verdict form. After defense counsel objected, the trial court instead instructed the jurors, over a renewed objection, that it was granting Johnson's previously denied motion for directed verdict as to the murder charges based upon the evidence. While the better practice would have been for the trial court not to have indicated the reason why the murder charges against Johnson were “no longer before the jury, we have previously determined that ‘remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.’ [Cit.]” Holmes v. State, 210 Ga.App. 118(1), 435 S.E.2d 492 (1993). The trial court did not express any opinion as to the sufficiency of the evidence against Appellant. Young v. State, 269 Ga. 490, 494(4), 500 S.E.2d 583 (1998). See also Dixon v. State, 300 Ga.App. 183, 186(3), 684 S.E.2d 679 (2009); Abbott v. State, 91 Ga.App. 380(3), 85 S.E.2d 615 (1955). Furthermore, the trial court instructed the jurors that it did not intend by any ruling to express any opinion on the facts of the case, the credibility of witnesses, the evidence, or the guilt or innocence of the defendant. Holmes v. State, supra. See also Young v. State, supra. Accordingly, we find no violation of OCGA § 17-8-57.

3. Appellant contends, and the State concedes, that she could not be convicted of both malice murder and felony murder. Indeed, Appellant “murdered a single victim and can be sentenced for either malice or felony murder but not both. [Cits.]” Nix v. State, 280 Ga. 141, 142(2), 625 S.E.2d 746 (2006). See also Malcolm v. State, 263 Ga. 369, 371(4), 434 S.E.2d 479 (1993). The felony murder verdict was “ ‘simply surplusage, which (should) properly (have been) disposed of by the trial (court's) [imposition] of only one life sentence for the [two] murder counts.’ [Cits.]” Malcolm v. State, supra at 372(4), 434 S.E.2d 479. “Accordingly, the separate judgment of conviction and sentence for felony murder must be vacated.” Nix v. State, supra.

4. Appellant further...