Loren v. State
| Decision Date | 03 December 1997 |
| Docket Number | No. S97A0879,S97A0879 |
| Parties | , 97 FCDR 4416, 98 FCDR 153 LOREN v. The STATE. |
| Court | Georgia Supreme Court |
Sam B. Sibley, Jr., Augusta, for Donna Newman Loren.
Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., Augusta, Mary Beth Westmoreland, Deputy Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
Donna Newman Loren was tried and convicted, along with her husband James Loren, of malice and felony murder in the beating death of her four-month-old son. 1 On appeal, she asserts that the trial court erred in failing to grant a severance of defendants and in refusing to give certain requested jury instructions. Finding no reversible error, we affirm.
James Loren approached a police officer in a supermarket parking lot and asked the officer to call an ambulance because his stepson had stopped breathing. The officer drove James to his residence nearby. The child was found lying on the floor in the apartment, wearing only a diaper. There were several bruises on the child's face and forehead, and he was not breathing. Appellant, who was standing in the same room, told the officer that the baby had slipped from her hands and fallen in the shower two days earlier. She also stated, "I guess you're going to have to call DFACS now." The child was admitted to the hospital in a comatose state.
In a subsequent statement to police later that evening, appellant revealed that she had lied regarding the fall in the shower for fear that DFACS would remove the child from her care. Appellant's husband told police that it was he who had dropped the child in the shower.
About an hour before the police officer brought James to the Loren residence, the child's biological father went there to get the child for a prearranged visitation. The child was on the floor in a bedroom, crying. When the father attempted to go toward the bedroom, appellant told him that the child was ill. She then placed herself on top of the child preventing the father from seeing him, and disallowing the visitation. The father also testified that on other occasions he observed appellant lift the child by his arms and shake him "pretty hard."
Several weeks earlier, appellant's aunt observed bruises on the child's face and when she inquired about the cause of the injuries, appellant responded that the child had fallen out of his infant carrier onto the floor. Two weeks before the child's death, appellant's aunt observed more serious injuries: the child's ear was completely blackened, there were severe bruises on both sides of the child's head, and finger bruises on his hips and buttocks. When she asked appellant who was beating the child, appellant responded, "nobody" and she began to cry. The aunt advised appellant to seek medical attention for the child, but appellant did not respond to the admonition. On that occasion, the aunt showed the child to the biological father and they decided to alert DFACS. The DFACS caseworker determined that there was insufficient evidence to conclude that the child had been abused, but agreed to investigate further. The child's father later asked appellant how the child had sustained those bruises, and she explained that he had fallen off a bed.
Another witness likewise testified that she had observed severe bruises on the child's face and was told by appellant that he had fallen off the bed. This witness had also observed appellant shaking the child.
The child died on the afternoon following his admission to the hospital. The medical examiner testified that the child's death was due to blunt force injuries to the head, along with violent shaking. There were a series of bruises to the forehead, nose, and perineum; blunt-force injuries to the chest and abdomen; retinal hemorrhages; contusions on both cheeks; a ruptured stomach; a fracture of the skull; and extensive hemorrhaging and injuries to the brain. The medical examiner also testified that the child would have lost consciousness within minutes or an hour from the time the fatal blow was inflicted and that "there's just no way that this happened as the result of a fall in the shower," or as the result of any other type of fall. And he opined that the child may have survived had he received prompt medical attention. Appellant offered medical testimony that many of the bruises were between two and seven days old.
1. The evidence showed that appellant was actively involved in a pattern of mistreatment which led to the child's death, and that she knowingly and callously deprived the child of medical attention needed in order to survive. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, or as a party to the crime of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends that the trial court abused its discretion in refusing her requests for a severance and trying her jointly with her husband.
During trial both defendants renewed their pretrial motions for severance, on the ground that their defenses were becoming antagonistic. The State responded that neither party had made the requisite showing of prejudice, and the court agreed. 2
The defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance. [Cit.] Factors the trial court should consider in exercising its discretion include: (1) whether the number of defendants creates confusion of the evidence and law applicable to each defendant; (2) whether a danger exists that evidence admissible against one defendant will be considered against the other, despite cautionary instructions; and (3) whether the defenses are antagonistic. [Cit.]
Wilkins v. State, 266 Ga. 278, 279(2), 466 S.E.2d 592 (1996). There was nothing confusing about the evidence in this case and nothing to create a danger that evidence against James would be considered against appellant. The mere fact that the defenses of co-defendants are antagonistic is not sufficient to mandate a severance. Appellant must also demonstrate harm by the failure to sever. Dennard v. State, 263 Ga. 453(5), 435 S.E.2d 26 (1993).
Although appellant and her husband each presented vigorous defenses attempting to show that the other caused the fatal injuries, the State offered substantial evidence of a pattern of abuse and neglect on the part of both defendants. As in Wilkins, supra at (2b), the evidence offered by James implicating appellant was cumulative of the State's evidence against her. Because appellant has not made the requisite showing of harm, the trial court was not required to grant a severance. Id.; Smith v. State, 267 Ga. 372(2), 477 S.E.2d 827 (1996); Dennard, supra; Harrell v. State, 253 Ga. 474(2), 321 S.E.2d 739 (1984). Compare Crawford v. State, 148 Ga.App. 523, 251 S.E.2d 602 (1978) ().
3. Appellant submitted a written request to charge cruelty to children as a lesser included offense of murder. Although the court charged the elements of cruelty to children as the felony underlying the felony murder charge, it refused to charge the jury that they could return a verdict of cruelty to children as a lesser included offense. Under the rule of Edwards v. State, 264 Ga. 131, 442 S.E.2d 444 (1994), a requested charge on a lesser included offense must be given where the case contains some evidence, even slight, that the defendant committed the lesser offense. The indictment charged appellant with felony murder with the underlying felony of cruelty to children by shaking and beating the victim and by failing to seek proper medical attention after the injuries were inflicted. There was substantial evidence that appellant had caused the child cruel or excessive physical pain by numerous instances of vigorous shaking, and had deprived the child of needed medical treatment to the extent that his health or well-being was jeopardized. From this evidence the jury could have concluded that the earlier injuries resulted in cruel or excessive physical pain, but did not cause the child's death. Accordingly, a charge on cruelty to children in the first degree (OCGA § 16-5-70), as a lesser offense to felony murder, was required under Edwards.
But, unlike Edwards, the jury found appellant guilty of the greater offense of malice murder. Therefore, the error in failing to charge...
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