Sanders v. the State.Thomas v. the State.

• Decision Date: 12 September 2011
• Docket Number: S11A0947.,Nos. S11A0729,s. S11A0729
• Citation: Sanders v. the State.Thomas v. the State., 289 Ga. 655, 715 S.E.2d 124, 11 FCDR 2868 (Ga. 2011)
• Parties: SANDERSv.The STATE.Thomasv.The State.
• Court: Georgia Supreme Court

289 Ga. 655

715 S.E.2d 124

11 FCDR 2868

SANDERS

v.The STATE.Thomas

v.The State.

Nos. S11A0729

S11A0947.

Supreme Court of Georgia.

Sept. 12, 2011.

Dell Jackson, Atlanta, for appellant (case no. S11A0729).John Peter Rutkowski, Philadelphia, for appellant (case no. S11A0947).Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Stephany Julissa Luttrell, Assistant District Attorneys, Samuel S. Olens, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Benjamin Henry Pierman, Assistant Attorney General, for appellee.CARLEY, Presiding Justice.

Appellants Jade Sanders and Lamont Thomas were tried jointly before a jury. Both Appellants were found guilty of the malice murder of their infant son Crown Shakur by failing to seek necessary and adequate medical attention for him and involuntary manslaughter during the commission of reckless conduct by depriving the child of necessary sustenance, which was a lesser included offense of a second malice murder count. Appellants were also found guilty of two counts of felony murder during the commission of cruelty to children in the first degree and two separate counts charging those underlying offenses. One child cruelty count charged that Appellants willfully deprived the child of necessary sustenance to the extent that his health and well-being were jeopardized, and the other child cruelty count charged that Appellants maliciously caused the child cruel and excessive physical and mental pain by failing to seek necessary and adequate medical attention for him.

Treating the felony murder verdicts as surplusage, the trial court entered judgments of conviction on the malice murder verdicts, merged the remaining counts, and sentenced both Appellants to life imprisonment. Appellants filed separate motions for new trial. The trial court denied Thomas' motion but granted Ms. Sanders' motion based on ineffective assistance of trial counsel only as to the charge of malice murder, finding that because of counsel's deficient performance there was a reasonable probability that the jury would have returned a different verdict on malice murder as to Ms. Sanders but not on the remaining counts. Thereafter, the trial court vacated Ms. Sanders' malice murder conviction, entered a new judgment of conviction only on the first felony murder verdict, and again sentenced her to life imprisonment. Separate notices of appeal were filed. We dismissed Thomas' original appeal, as his motion for new trial was untimely and did not toll the time for filing a notice of appeal. However, he was subsequently granted an out-of-time appeal and then timely filed a notice of appeal.^* The two appeals are consolidated for disposition in this single opinion.

1. Construed most strongly in support of the verdicts, the evidence shows that Appellants were vegans who fed their baby only soy milk and apple juice. When the victim was approximately six weeks old and weighed three and one-half pounds, Appellants took him to the emergency room, claiming that the child was well until a few minutes earlier. However, the victim was extremely thin and emaciated, with a “skin and bones” appearance and ribs which could easily be seen. He was dirty and was wearing a diaper with dried excrement in it. He was not breathing, had no heartbeat, and was very dehydrated and cool to the touch. The hospital staff was unable to resuscitate the victim. Unlike most parents with a child in critical condition, Appellants were unemotional. At trial, Thomas volunteered that the food for the baby was very expensive, and Ms. Sanders admitted that she had not told coworkers about her pregnancy.

Extensive medical testimony showed the victim's need of medical attention and his condition of extreme malnourishment or starvation, which was not caused by cystic fibrosis since the victim did not have that disease, which included the absence of subcutaneous fat and the process of cannibalization by his own body, and which, regardless of any disease, caused his death. The expert testimony also showed that the victim would have had the same general appearance for at least a week before his death. The medical examiner testified that the victim did not suffer from the most common forms of metabolic disorders typically associated with sudden infant deaths, did not show signs of any digestive abnormalities, was unable to fight infections because of his advanced state of malnourishment which led to bronchopneumonia resulting in his death, and would have been able to recover if he had been provided with the proper nourishment and antibiotics.

Ms. Sanders argues that the circumstantial evidence was insufficient to support the verdicts against her and to prove the requisite intent. She was ultimately convicted of felony murder during the commission of child cruelty in the first degree as defined in OCGA § 16–5–70(a):

A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits the offense of cruelty to children in the first degree when such person willfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized.

“ ‘Sustenance is “that which supports life; food; victuals; provisions [.]” ... Our statute, in the use of the word “sustenance,” means that necessary food and drink which is sufficient to support life and maintain health.’ [Cits.]” Caby v. State, 249 Ga. 32, 33(1)(a), 287 S.E.2d 200 (1982). Evidence presented by the defense regarding Appellants' conduct and intent was thoroughly contradicted. The testimony presented by the State showed that the infant victim obviously was not fed enough and that neither disease nor the mere choice of nutrition by Appellants for the victim could have left him in the extremely malnourished condition that caused his death. See Allen v. State, 278 Ga.App. 292, 295(1), 628 S.E.2d 717 (2006).

[T]he evidence was not purely circumstantial as [numerous medical professionals], who observed and treated the victim, testified to what they saw. [Cit.] Direct medical testimony reveals that [the victim] was severely malnourished and that his health was jeopardized. Whether [Ms. Sanders] wilfully perpetrated the act causing [the victim's] condition was an issue for the jury to resolve. [Cits.]

Coleman v. State, 308 Ga.App. 731, 735(1), 708 S.E.2d 638 (2011). See also Copeland v. State, 263 Ga.App. 776, 779(1), 589 S.E.2d 319 (2003).

Under the laws of this state, a person is not presumed to act with criminal intent, but the trior of facts, the jury in the present case, may find such intention after consideration of the conduct and demeanor of the defendant and all other circumstances connected with the act for which the defendant is charged. [OCGA § 16–2–6.] The question of criminal intent is for the trior of facts. [Cits.]

Brewer v. State, 156 Ga.App. 468(1), 274 S.E.2d 817 (1980). The evidence was sufficient for a rational trier of fact to find Ms. Sanders guilty beyond a reasonable doubt of the child cruelty charge which was the predicate offense for her conviction of felony murder. Coleman v. State, supra at 735(1), 708 S.E.2d 638 (very similar facts except that the victim, who was expected to die, was saved by emergency treatment). See also Copeland v. State, supra at 777–780(1), 589 S.E.2d 319; Bosnak v. State, 263 Ga.App. 313, 314(1), 587 S.E.2d 814 (2003); Knight v. State, 233 Ga.App. 819, 821–822(2), 505 S.E.2d 796 (1998).

Although Thomas does not contend that the evidence is insufficient to support his malice murder conviction, we note that, like willfulness,

[m]alice is a state of mind and frequently must be proven indirectly. [Cit.] Whether a child has been starved, neglected and abused with malice as to constitute murder, or has merely been harmed as a result of inability, carelessness or accident, may often require considerable indirect proof to determine the parent's state of mind.

Lackey v. State, 246 Ga. 331, 336(8), 271 S.E.2d 478 (1980). Reviewing the evidence in the light most favorable to the verdicts, we conclude that it was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that both Appellants were guilty of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Ms. Sanders contends that the prosecutor engaged in prosecutorial misconduct when he elicited testimony, during cross-examination of a medical expert, which invaded the jury's province and commented upon the ultimate issue. However, neither Appellant made any objection at the time of the testimony. Therefore, appellate review of this issue has been waived. Hampton v. State, 272 Ga. 284, 287(5), 527 S.E.2d 872 (2000). “[T]he ‘contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.’ [Cit.]” Ledford v. State, 264 Ga. 60, 67(18)(a), 439 S.E.2d 917 (1994).

3. Thomas' untimely motion for new trial raised a claim that trial counsel rendered ineffective assistance by failing to call a forensics expert at trial. That same claim is raised in Thomas' sole enumeration of error in this appeal.

“Although [Thomas] did file [a] notice of appeal within 30 days of the denial of his motion for new trial, that motion was void because he did not file it within 30 days of the entry of the conviction and imposition of the sentence. (Cits.)” [Cits.] “Since the motion was void, there was no error in denying it.” [Cit.] “Therefore, we affirm [in Thomas' case because the only] alleged error[ ] ... [is] premised on the denial of the (void) motion for new trial. (Cit.)” [Cit.] Once that void motion for new trial was denied, the subsequent grant of an out-of-time appeal could no longer render the motion merely premature. [Cit.] Thus, appellate counsel was required to “file a motion for new trial, in which an ineffective assistance of counsel...