Peterson v. State

• Decision Date: 13 July 2007
• Docket Number: No. S07A0471.,S07A0471.
• Citation: 282 Ga. 286,647 S.E.2d 592
• Parties: PETERSON v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 286

647 S.E.2d 592

PETERSON v. The STATE.

No. S07A0471.

Supreme Court of Georgia.

July 13, 2007.

Dell Jackson, Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., for Appellee.

HINES, Justice.

Terri Lynn Peterson ("Peterson") appeals from her conviction for malice murder in connection with the death of her five-year-old nephew, Terrell Peterson ("Terrell"). For the reasons that follow, we affirm. ¹ Construed to support the verdicts and judgement of conviction, the evidence showed that Terrell lived with Peterson, her boyfriend Calvin Pittman, Peterson's mother Pharina Peterson, and Terrell's brother Tommy Peterson and sister Tasha Peterson; at the time of Terrell's death, Tasha was eleven years old and Tommy was six years old. Along with her mother, Peterson raised the children, and was responsible for feeding and disciplining Terrell.

Peterson telephoned 911 when Terrell was not breathing. Terrell arrived at the hospital in cardiac arrest and died 45 minutes later. The treating physician contacted the police because Terrell displayed the worst symptoms of child abuse that the physician had seen. Terrell had a recurring pattern of abrasions from the back of his head to the bottom of his feet, which indicated that a telephone cord, belt, and dog collar were used to beat him for as much as a year prior to his death. Bruises and scars covered his face in varying hues of purple, depending on the age of the wounds. Ligature marks encircled his wrists, and Terrell's DNA was found on a pair of pantyhose used to bind him, as well as on a belt and dog collar. Swollen lips and lacerations to the mouth revealed that someone had fed him aggressively; scarring to the mouth indicated repeated forceful feeding. The medical examiner determined Terrell's death to be a homicide from chronic and acute abuse, with recent and remote blunt impact injuries to the head, trunk, and extremities.

Peterson, Tasha, and Tommy told the police that Terrell slept on a pallet in the hallway and was tied up when he was bad, and Peterson said that he was "always bad." Terrell was permitted to eat only grits, rice, or oatmeal. He was malnourished and lacked body fat.

Tasha testified that Peterson whipped Terrell with an extension cord and hit him with her hand, and that she ordered Tasha and Tommy to beat Terrell. Peterson tied Terrell to a banister for most of every day and made him sleep nearby on a pallet in the hallway. She fed Terrell roughly with a large spoon. As punishment, she made him stand on a heating grate, burning his foot so badly that he needed a skin graft to save it. Peterson treated Terrell this way because she believed that he was not actually her nephew, but had been fathered by someone other than her brother.

Terrell's teachers reported that he had a ravenous hunger at school. He sometimes stole food from them, and once attempted to eat out of a garbage can. Peterson told Terrell's teachers to feed him less so that he would not defecate on the floor. At home, Peterson fed Terrell only barley, oatmeal, and water. Peterson repeatedly forced Terrell to eat waste from the toilet.

1. Peterson contends that the evidence was insufficient, asserting that the evidence did not demonstrate that she was the perpetrator of any acts that resulted in Terrell's death. There was ample evidence presented showing that Peterson struck and beat Terrell, and deprived him of necessary nutrition, as alleged in the indictment, and that these actions caused the child's death. The jury was authorized to find Peterson guilty beyond a reasonable doubt of the crime of which she was convicted and for which she was sentenced. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. During jury voir dire, Peterson sought to strike several prospective jurors for cause, and now challenges the trial court's refusal to strike eight of these prospective jurors.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993). For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence. Id.; McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). A prospective juror's doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Waldrip v. State, 267 Ga. 739, 745(8)(c), 482 S.E.2d 299 (1997). Nor is excusal required when a potential juror states that he or she will "try" to decide the case based upon the court's instructions and the evidence. Brady v. State, 270 Ga. 574, 575(2), 513 S.E.2d 199 (1999); Holmes v. State, 269 Ga. 124, 126(2), 498 S.E.2d 732 (1998); Garland, supra. A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court's province, and those findings are to be given deference. Kirkland v. State, 271 Ga. 217, 219(2), 518 S.E.2d 687 (1999).

Corza v. State, 273 Ga. 164, 166(3), 539 S.E.2d 149 (2000).

(a) Peterson sought to strike four prospective jurors who had gleaned some knowledge of the case from news coverage, asserting that their knowledge relieved the State of a portion of its burden of proof. However, all four of these prospective jurors stated that they would decide the case based on the law and the evidence presented, and the trial court did not abuse its discretion in denying Peterson's motions to strike these jurors. See Lawler v. State, 276 Ga. 229, 235(5), 576 S.E.2d 841 (2003); Spivey v. State, 253 Ga. 187, 196(6)(d), 319 S.E.2d 420 (1984).

(b) Peterson contends that, because a child was the victim, two prospective jurors had formed opinions regarding the case that would require that Peterson prove that she did not kill Terrell. However, the prospective jurors' responses to questions do not show that they had formed fixed and definite opinions regarding the case. Additionally, after they were questioned further and informed of the instructions the trial court would administer, both prospective jurors stated they could decide the case based upon the evidence and the court's instructions. It was not an abuse of discretion to refuse to strike these prospective jurors. Roberts v. State, 276 Ga. 258, 259(2), 577 S.E.2d 580 (2003).

(c) Peterson asserted in the trial court that two prospective jurors were biased against her and needed to be struck for cause. Again, the prospective jurors stated that they could appropriately decide Peterson's guilt, and, as the record does not reveal that these prospective jurors had formed a "fixed and implacable opinion" as to Peterson's guilt, the trial court did not abuse its discretion in denying the motions to strike these prospective jurors. Cox v. State, 279 Ga. 223, 226(5), 610 S.E.2d 521 (2005).

3. Peterson advances several instances of prosecutorial misconduct. However, Peterson did not object to the State's allegedly improper remarks during its opening statement, the State's implication during closing argument that a witness testified who in fact did not do so, or to the State's religious reference made during its closing argument, and thus she has waived review of any error based on those instances. Smith v. State, 277 Ga. 213, 218(11)(a), 586 S.E.2d 639 (2003); Phillips v. State, 275 Ga. 595, 598(5), 571 S.E.2d 361 (2002).²

When the State cross-examined Peterson, it noted the conflict between her testimony and that of other witnesses, and asked her whether the other witnesses had lied, or had bad memories. However the questions posed to Peterson served to point out conflicts in the evidence, the jury was properly charged regarding its duty to resolve questions of witness credibility, and there was no reversible error. See Carreker v. State, 273 Ga. 371, 372(3), 541 S.E.2d 364 (2001); Whatley v. State, 270 Ga. 296, 301(13), 509 S.E.2d 45 (1998).

During closing argument, the State referred to Peterson as "evil" and untruthful. Peterson objected, and the court properly instructed the jury that closing arguments were not evidence. Further, the State's characterizations were permissible given the evidence, and such oratory is not error requiring reversal. Harris v. State, 279 Ga. 522, 525(4), 615 S.E.2d 532 (2005); Simmons v. State, 266 Ga. 223, 228(6)(b), 466 S.E.2d 205 (1996).

4. Peterson claims that trial counsel failed in several respects to provide effective representation. In order to prevail on this claim, Peterson must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to her defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, the defendant must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, the defendant must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of her trial would have been different. Id. at 783, 325 S.E.2d 362. "`We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]"...