Nicely v. State

• Decision Date: 29 October 2012
• Docket Number: No. S12A0876.,S12A0876.
• Citation: 733 S.E.2d 715,291 Ga. 788
• Parties: NICELY v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 788

733 S.E.2d 715

NICELY

v.The STATE.

No. S12A0876.

Supreme Court of Georgia.

Oct. 29, 2012.

Adam Sean Levin, Atlanta, for appellant.

Lee Darragh, Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Department of Law, Wanda Lynn Vance, Asst. Dist. Atty., for appellee.

BLACKWELL, Justice.

Billy D. Nicely was tried by a Hall County jury and convicted of the murder of Tayore Wright, a one-year-old girl. On appeal, Nicely contends that his father was denied equal protection when the father was excluded from portions of the trial pursuant to the rule of witness sequestration, OCGA § 24–9–61, while the mother of Tayore was permitted to attend the trial pursuant to a statutory exemption to the rule of sequestration contained in the Crime Victims' Bill of Rights, OCGA § 17–17–9(b). Nicely also claims that the trial court erred when it denied his pretrial demurrer, when it limited his cross-examination of an expert witness at trial, and when it refused to instruct the jury as Nicely requested. Upon our review of the record and briefs, we find no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Nicely lived with Shawndia Rogers and her two young children—one of whom was Tayore—in an apartment in Gainesville. On the afternoon of March 30, 2009, Rogers left the apartment for work, leaving the children in Nicely's care. At that time, Tayore appeared to be uninjured and in no distress. About five hours later, Nicely telephoned his aunt and said that Tayore was not breathing. The aunt and a family friend went to the apartment, where they found Tayore unresponsive. Nicely told his aunt that Tayore had fallen down the stairs when he was attending to the other child and that he did not see Tayore fall. The aunt attempted unsuccessfully to revive Tayore, and the family friend called for emergency assistance. Nicely left the apartment before paramedics and other emergency response personnel arrived, and he did not return. The paramedics were able to revive Tayore in the apartment, but the next day, she died in the hospital.

According to Nicely, after he left the apartment, he spent the night sitting “in the dark behind some houses just thinking about what happened.” He also made more than 100 telephone and text-message contacts with various friends and relatives, including a cousin to whom he explained that he did not want to go to prison for the rest of his life. The next day, Nicely went to the Gainesville Police Department, where he gave an account of the incident in which Tayore was injured that was inconsistent with the story that he earlier told to his aunt. At the police station, Nicely claimed that he was sliding Tayore down a handrail along the stairs in the apartment when she suddenly jerked out of his grasp, fell over the handrail, and hit her head on the floor below.

At trial, the State called two medical experts as witnesses. Dr. Gerald Gowitt, the Hall County medical examiner, performed an autopsy of Tayore and testified about her injuries. He said that he observed several small bruises on her head and cheeks and that, when he opened her scalp, he observed additional injuries, including multiple blunt-impact sites and hemorrhaging in the forehead and frontal and temporal scalps, as well as a blunt-impact site and hemorrhaging near the back of her head. Moreover, he found swelling in her brain, multiple areas of subdural and subarachnoid hemorrhaging, retinal hemorrhaging, and a schisis cavity in her right eye. Dr. Gowitt testified that the injuries to Tayore were consistent with her having been beaten with a blunt object, and he said that some of the injuries could have been caused by her having been shaken. He also testified that her injuries were inconsistent with a short fall, such as a fall from the handrail in the apartment. Dr. Jordan Greenbaum, medical director at Children's Healthcare of Atlanta's Child Protection Center and a board-certified forensic pathologist, testified that it was “impossible” for Tayore to have sustained her injuries in a short fall. Dr. Greenbaum opined that a violent, repetitive whiplash motion, which could result from a beating or excessive shaking, caused Tayore's death.

In his defense, Nicely called Rogers as a witness, and she testified that Nicely was a good caregiver and had a positive relationship with her children. Nicely also called his father, who testified about praying with Nicely and then taking Nicely to the police station on the morning after the incident in which Tayore was injured. In addition, Nicely presented expert testimony that conflicted with the testimony of Drs. Gowitt and Greenbaum. As we have explained before, however, “[i]t 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.” Allen v. State, 288 Ga. 263, 264(1), 702 S.E.2d 869 (2010) (citation and punctuation omitted). The evidence in this case was sufficient to authorize a rational trier of fact to find Nicely guilty beyond a reasonable doubt of the crime of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. We turn now to Nicely's contention that his father was denied equal protection when the trial court excluded him from some of the trial proceedings pursuant to the rule of sequestration, but allowed Rogers to attend as the mother of Tayore, notwithstanding that Rogers too was a witness at trial. Known as the rule of sequestration, OCGA § 24–9–61 provides that any party to a trial “shall have the right to have the witnesses of the other party examined out of the hearing of each other.” ² See also Williams v. State, 277 Ga. 853, 857(5), 596 S.E.2d 597 (2004). A statutory exemption to the rule appears, however, in the Crime Victims' Bill of Rights:

A victim of a criminal offense who has been or may be subpoenaed to testify at such hearing or trial shall be exempt from the provisions of Code Section 24–9–61 requiring sequestration; provided, however, that the court shall require that the victim be scheduled to testify as early as practical in the proceedings.

OCGA § 17–17–9(b). As the mother of a deceased, child victim of the crimes for which Nicely was tried, Rogers was a “victim” of these crimes for the purposes of this statutory exemption. See OCGA § 17–17–3(11)(B)(iii), (C).³ The trial court in this case excluded Nicely's father from the trial until after he testified, but it permitted Rogers to attend even before she testified. Nicely contends that this disparate treatment—the result of the trial court applying the statutory rule of sequestration to the father, and the statutory exemption contained in the Crime Victims' Bill of Rights to Rogers—amounts to a denial of the constitutional guarantee of equal protection.⁴ We disagree.

Generally speaking, the guarantee of equal protection “is concerned with arbitrary government classification,” Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 602(II)(B), 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), and it requires that the law treat similarly situated persons alike, unless adequate reason exists to treat them differently. See id. Accordingly, to show a denial of equal protection, one first must demonstrate that the law treats him differently than similarly situated persons. Fair v. State, 288 Ga. 244, 246(1)(A), 702 S.E.2d 420 (2010). If it is shown that the law, in fact, treats him differently than similarly situated persons, a court then must inquire whether adequate reason exists for doing so. Differential treatment that is based on an inherently suspect classification or that interferes with the exercise of a fundamental right is subject to strict scrutiny, see id., and such treatment ordinarily can be justified only when it is sufficiently related to a compelling state interest. Poulos v. McMahan, 250 Ga. 354, 355, n. 1, 297 S.E.2d 451 (1982). Differential treatment that neither involves a suspect classification nor interferes with a fundamental right, however, is subject to less exacting scrutiny, and it generally can be justified when rationally related to a legitimate state interest. Fair, 288 Ga. at 246(1)(A), 702 S.E.2d 420. See also Rodriguez v. State, 275 Ga. 283, 286(2), 565 S.E.2d 458 (2002).

In support of his contention that his father was denied equal protection,⁵ Nicely contends that his father and Rogers were similarly situated at his trial, both having a familial interest in the “subject matter” of the trial, one as a parent of the defendant, the other as a parent of the victim. The two quite clearly were treated differently, his father being excluded from portions of the trial, and Rogers being permitted to attend. This differential treatment, Nicely argues, must be subjected to strict scrutiny because it infringes on a fundamental right, namely his own constitutional right to a public trial. And because the State cannot show, he says, that the differential treatment is adequately related to a compelling state interest, it amounts to a denial of equal protection. Even assuming that Nicely has standing to assert an equal protection claim on behalf of his father,⁶ and assuming that his father and Rogers were similarly situated, we are unpersuaded that his father was denied equal protection.

Whether a right is fundamental for purposes of equal protection generally depends on whether it is “explicitly or implicitly guaranteed by the Constitution,” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33(II)(B), 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), and a public trial certainly is guaranteed explicitly by the Sixth Amendment of the United States Constitution. Moreover, the United States Supreme Court has characterized the constitutional...