Parker v. State

• Decision Date: 23 November 1998
• Docket Number: No. S98A1195.,S98A1195.
• Citation: 507 S.E.2d 744,270 Ga. 256
• Parties: PARKER v. The STATE.
• Court: Georgia Supreme Court

507 S.E.2d 744

270 Ga. 256

PARKER v. The STATE.

No. S98A1195.

Supreme Court of Georgia.

November 23, 1998.

Lee Sexton, Lee Sexton & Associates, P.C., Jonesboro, for Michael Lee Parker.

Robert E. Keller, Dist. Atty., Verda Andrews-Stroud, Asst. Dist. Atty., Jonesboro, Hon. Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

BENHAM, Chief Justice.

This appeal is from Michael Lee Parker's convictions of malice murder, felony murder, and cruelty to children.¹ The evidence presented at trial by the State showed that Karen Martin and her son Zachary were residing with Parker in January of 1995. Martin testified that Parker and Zachary were gone when she awoke on January 27. Parker called her in the afternoon and asked her to go to a grocery store, which she did. On her return, she noticed that the carpet she had vacuumed before her departure had footprints on it. As she brought in groceries, Parker arrived carrying Zachary, who was already dressed in pajamas and appeared to be asleep. Parker took Zachary upstairs, apparently to put him to bed. According to Martin, Parker then behaved nervously, eating and drinking less than usual and going to bed early. She discovered a load of laundry in the washing machine containing one of Zachary's outfits and Parker's work clothes, which was unusual because she usually did the laundry. Martin testified that she went to bed between 4:00 and 4:30 a.m., woke once around noon to ask Parker whether he had heard Zachary that day, went back to sleep when Parker said he had heard Zachary, then woke at midafternoon. When she checked on Zachary at that time, she found him stiff and cold in his bed. She testified that Parker made her wait to call 911 until he got some marijuana out of the apartment and told her to say that he had fallen on the stairs while carrying Zachary. Two days later, Parker told her that Zachary had fallen off the seat of Parker's van as Parker drove around a curve, and that Parker intended to take Zachary to a hospital, but realized he was dead. Over the course of three days of interviews by police officers, Parker gave a variety of explanations for the many bruises found on Zachary, adding to the story each time police officers said his explanation did not match the child's injuries. Among the explanations were statements that, over the course of about two weeks, the child had fallen, Parker had accidentally bumped the child against walls and a ceiling fan, the child sometimes banged his head on the floor if he did not get his way, and the child had fallen in the van when Parker hit the brakes or when he hit a pole with the van. State's witnesses who had examined the van testified there was no damage to it consistent with the alleged collision with a pole. During interviews subsequent to her first, in which she claimed she was with the child all day on the 27th, Martin said that Parker had told her the child died in his vehicle on the way to the hospital after falling off the van seat. A medical examiner testified to a number of serious head injuries suffered by the child, injuries which would have rendered the child immediately unable to function normally. The witness specifically opined that the injuries were not consistent with any of the explanations Parker had given to the police. Parker testified at trial that he had not taken the child out of the house on the 27th, that Martin had been with the child all day, and that he had fallen while carrying the child upstairs to put him to bed. The jury found Parker guilty of malice murder, felony murder, and cruelty to children.

1. In three enumerations of error, Parker has challenged the sufficiency of the evidence to uphold his convictions. The evidence presented at trial and summarized above was sufficient to authorize a rational trier of fact to find Parker guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilkins v. State, 267 Ga. 86(1), 475 S.E.2d 607 (1996).

However, we note for the edification of the bench and bar that the trial court's judgment sentencing Parker only for malice murder and ruling that the other offenses merged into malice murder is incomplete. While the conviction for felony murder stands vacated by operation of OCGA § 16-1-7 (Malcolm v. State, 263 Ga. 369(5), 434 S.E.2d 479 (1993)), the conviction for cruelty to children did not merge, as the trial court ruled it did, into the conviction for malice murder. Because of the presence of the element of the victim's age in the crime of cruelty to children, that offense is not an offense included in malice murder (Loren v. State, 268 Ga. 792(3), 493 S.E.2d 175 (1997)), and did not merge into it as a matter of fact under the allegations of the indictment in this case. McCartney v. State, 262 Ga. 156(5), 414 S.E.2d 227 (1992). Thus, the trial court's judgment is incomplete in that it leaves Parker unsentenced for a crime of which he has been convicted.

2. Parker requested a jury charge on the principle that mere presence at the scene of the crime is insufficient to support a conviction, and now enumerates as error the trial court's refusal to give that charge. The rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. Muhammad v. State, 243 Ga. 404(1), 254 S.E.2d 356 (1979). In the present case, the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence. Under those circumstances, there was no error in the refusal to give Parker's requested charge. Id.

3. Parker also enumerates as error the trial court's refusal to give his requested charge that the jurors are judges of both the law and the facts. The trial court charged on the subject of Parker's request in the language of the suggested pattern jury instruction promulgated by the Council of Superior Court Judges:

Members of the jury, it is my duty and responsibility to ascertain the law applicable to this case and to instruct you on that law, by which you are bound. It is your responsibility to ascertain the facts of the case from all the evidence presented. It then becomes your duty and responsibility to apply the law I give you in the charge to the facts as you find them to be.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.1991), p. 9. That charge is a correct statement of the law: "Jurors have a duty to take the law from the trial court's instructions and apply it to the facts which they determine from the evidence adduced at trial. Harris v. State, 190 Ga. 258(6), 9 S.E.2d 183 (1940)." State v. Freeman, 264 Ga. 276, 277, 444 S.E.2d 80 (1994).

"It is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles." [Cit.] "It has long been held that under a proper interpretation of OCGA § 17-9-2, `it is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law.' The court is responsible for the correct exposition of the law and `in the trial of criminal cases it is the duty of the jury to take the law from the court, as it is their duty to take the evidence from the witnesses.'" [Cits] Inasmuch as the instruction given by the trial court was a `proper interpretation' of the statutory basis of appellant's requested charge, it was not error for the trial court to fail to charge the legal concept now at issue in the language requested by appellant.

McGee v. State, 172 Ga.App. 208(1), 322 S.E.2d 500 (1984).

4. Parker contends the trial court erred by charging the jury, at the State's request, that a reckless disregard for human life may be equivalent to a specific intent to kill. Parker argues that the charge could have improperly led the jury to convict him solely on the basis of criminal negligence. In Dunagan v. State, 269 Ga. 590(2), 502 S.E.2d 726 (1998), we held that it was error to instruct the jury that criminal negligence could substitute for criminal intent as an element of the crime of aggravated assault. However, Dunagan is not controlling authority for the proposition that a reckless disregard for human life cannot substitute for the specific intent to kill as an element of the crime of malice murder. The elements of malice murder are entirely different from those of aggravated assault.

The crime of malice murder is committed when a person unlawfully causes the death of another human being while acting with express or implied malice. OCGA § 16-5-1(a). In this definition of the crime, the concept of malice incorporates the intent to kill. Latimore v. State, 262 Ga. 448, 450, 421 S.E.2d 281 (1992); Patterson v. State, 239 Ga. 409, 416(4)(b), 238 S.E.2d 2 (1977), overruled on other grounds, Bradham v. State, 243 Ga. 638, 640(3), 256 S.E.2d 331 (1979). Thus, in Georgia, the crime of malice murder is committed when the evidence shows either an express or, in the alternative, an implied intent to commit an unlawful homicide. This meaning of malice murder is consistent with the general rule that crimes which are "defined so as to require that the defendant intentionally cause a forbidden bad result are usually interpreted to cover one who knows that his conduct is substantially certain to cause the result, whether or not he desires the result to occur." (Emphasis in original.) 1 LaFave and Scott, Substantive Crim. Law, § 3.7(f), p. 336 (1986). Thus, a malice murder can be shown not only by...