Phelps v. State

• Decision Date: 31 May 1983
• Docket Number: 3 Div. 497
• Citation: 439 So.2d 727
• Parties: Gayle Weaver PHELPS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 727

439 So.2d 727

Gayle Weaver PHELPS v. STATE.

3 Div. 497.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

Certiorari Denied Oct. 28, 1983

Alabama Supreme Court 82-988.

Calvin M. Whitesell, Roger S. Morrow, and Wesley Romine, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

SAM W. TAYLOR, Judge.

Following the death of her twenty-month-old son, appellant was indicted and convicted for child abuse stemming from her failure to prevent harm to the boy by his stepfather, appellant's husband. The stepfather's conviction for murder was affirmed by this Court in Phelps v. State, 435 So.2d 158 (Ala.Cr.App.1983). Appellant was sentenced to five years' imprisonment.

The State's evidence established that on August 24, 1981, David Phelps caused the death of James Allen (Jamie) Weaver, Jr. by striking him in the abdomen. Dr. Thomas P. Gilchrist, forensic pathologist who performed an autopsy on the child, testified that the boy died as a result of a lacerated stomach, pancreas and mesentery which allowed the escape of air and blood into the abdominal cavity. Gilchrist gave his opinion that the injuries had been caused by a blow of "tremendous force" to the abdomen. The pathologist also noted the presence of numerous bruises on the child's body, specifically on the chest, abdomen, head, face, back, buttocks and groin areas. He stated that, in his judgment, the bruises were two to five days old, while the fatal blow had been administered only hours prior to the child's death.

Mrs. Joy Bozeman testified that she provided daycare for appellant's children, Jamie and Kristie, in her Autauga County home from February to May of 1980, and from September 1980 to February 1981. In February of 1981, Mrs. Bozeman observed a severe burn on Jamie's ear, and she questioned appellant about how the injury occurred. At first appellant told her that Kristie had burned Jamie's ear, but later she said that her husband David had accidentally burned the child's ear with a hair dryer.

During the same period of time, Mrs. Bozeman also noticed a burn on Jamie's back, which appellant explained by saying the boy had backed into her cigarette lighter, and a bump on the child's head which appellant said had happened when Jamie fell down the steps. Mrs. Bozeman noted that, unlike other mothers who brought their children for daycare, appellant never pointed out Jamie's injuries before being asked about them. When Mrs. Bozeman mentioned that Jamie was having "too many injuries" appellant replied that he was "just accident prone."

Mari Lynn Fredrickson Doyle lived near appellant and David Phelps in Autauga County from January to the summer of 1980, and often babysat for appellant's two children. She stated that appellant and David Phelps were married in April of 1981, although Phelps had been living with appellant since January of that year. The witness testified that she often noticed unusual bruises and burns on Jamie, and she specifically recalled the child's burned ear. When Ms. Doyle asked appellant about the boy's ear, appellant first stated that her husband David had inadvertently burned it with a blow dryer, but she later admitted to Ms. Doyle that David "held Jamie down on the bed and waited for the skin to bubble."

On another occasion, appellant called Ms. Doyle at work and requested that she come to appellant's trailer to babysit. When the witness arrived, she saw David Phelps' things packed and she thought he was leaving. Phelps told Ms. Doyle, in appellant's presence, that he had hit Jamie without realizing how hard he was striking him. Ms. Doyle saw Jamie and observed that his back was badly bruised all over. Appellant told Ms. Doyle to keep a shirt on Jamie and not to let anyone see the bruises.

Ms. Doyle also recounted that she witnessed David Phelps hold Jamie down or pry open the boy's mouth, with appellant present, and blow marijuana smoke in the child's face. The witness said that "whenever a marijuana cigarette would be lit [Jamie] would start crying and run into another room." Once Ms. Doyle saw David strike Jamie so hard the child "went across the kitchen." When the babysitter mentioned the incident to appellant, appellant said not to worry about it. Ms. Doyle also told appellant that David said he did not like Jamie because the boy looked too much like his natural father, appellant's first husband.

Ms. Doyle testified that after witnessing numerous incidents of abuse, she informed appellant "that she needed to get away from David, that he wasn't right for her or the kids and that he was going to end up really hurting one of them." According to the witness, appellant replied that she loved and wanted David and "things would be okay later."

Lisa Hyde, the sister of David Phelps, testified that she kept Jamie at her mother's Montgomery home the Friday night before his death on Monday. At that time she noticed several small round bruises on Jamie's stomach and back. She questioned her brother about the bruises and he said he did not know how they had occurred. Approximately three weeks earlier, Ms. Hyde saw a large, red handprint on Jamie's back and called it to appellant's attention. Appellant stated that she had not seen it, that she knew nothing about it. Several days later, according to Ms. Hyde, the handprint was still there but it was turning blue.

Sue Ann Weaver, Jamie's grandmother, testified that appellant was formerly married to her son. She last saw Jamie about three weeks before he died. At that time she observed a large bruise covering the side of his head and ear.

At the conclusion of the State's case, the defense attorney moved to exclude the evidence on the grounds that the State had not presented a prima facie case and, specifically, had not proved venue in Montgomery County. The motion was overruled and the defense presented numerous friends and co-workers of appellant who testified, in substance, that they had never observed unusual bruises, marks or burns on Jamie, that appellant was a good mother, and that her general reputation was good.

The appellant testified in her own behalf that she married David Phelps on April 6, 1981, but that he was at her trailer "all the time" in the four months preceeding that date. She said that she was either not present or had no knowledge of the infliction of the various injuries on her son Jamie as related by witnesses for the State. On the two occasions when she was aware of abuse to the boy--once when Phelps hit him on the back and once when he blew marijuana smoke in the child's face--she testified that she and Phelps had a big argument about his treatment of Jamie.

Appellant denied that Mari Doyle had informed her of David's ill treatment of Jamie. She testified that David gave her an explanation of all Jamie's injuries but she acknowledged that her husband's explanations were contradictory at times. For example, he first told her Kristie had burned Jamie's ear with the hair dryer, but then he said he himself had done it accidentally.

Appellant stated that she and Phelps moved to Montgomery on July 10, 1981. About a week before Jamie died, her daughter Kristie complained that her leg hurt, saying that she fell in the sandbox at school. Appellant took Kristie to the hospital, the child was admitted, and appellant stayed with her daughter virtually the entire time she was hospitalized. During this period, appellant left Jamie with David Phelps. Appellant stated that because she spent all her time, during the last week of Jamie's life, in the hospital with Kristie she did not bathe or clothe Jamie and had no occasion to notice any bruises or injuries on him. When she did periodically come home from the hospital, Jamie was sleeping and she had very little contact with him.

Appellant acknowledged that Phelps had physically abused her and, immediately before they moved to Montgomery, Phelps had gotten into a violent argument with appellant's father, who lived next door to them in Autauga County. The altercation resulted in both Phelps and appellant's father having to be sewed up at the emergency room for wounds received in the fight. Appellant conceded that David Phelps had a violent temper and stated that prior to Kristie's hospitalization she had planned to take the children and leave but she "never got the opportunity."

On Monday August 24, 1981, David called her at work to tell her Jamie needed to see a doctor. She went home, called the paramedics, and gave the child mouth-to- mouth resuscitation. Appellant noticed Jamie's bruises for the first time when the paramedics cut away the boy's pajamas.

After the defense rested, the State called paramedic Buddy Pitts, in rebuttal. Pitts said that when he and the other fire medics arrived on the scene Jamie Weaver was wearing only a diaper and had no clothing covering his legs or chest.

I

Appellant contends that the trial court erred by overruling her demurrer to the indictment because the charge against her failed to state an offense. The statute under which she was prosecuted, § 26-15-3, Code of Alabama 1975, provides that

"A responsible person, as defined in section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years." (Emphasis added)

Omitting the formal parts, the grand jury of Montgomery County charged that

"GAYLE WEAVER PHELPS, alias

GAYLE WEAVER, alias

GAYLE DANIELS,

"whose name is to the Grand Jury otherwise unknown, being the natural parent, legal guardian, custodian or a person with the permanent or temporary care or responsibility for the supervision of James Allen Weaver, Jr., a child under eighteen years of age, did torture, wilfully abuse, cruelly beat or otherwise maltreat said child, by to-wit: GAYLE...