Thornton v. State

Citation449 S.E.2d 98,264 Ga. 563
Decision Date31 October 1994
Docket NumberNo. S94P0668,S94P0668
CourtSupreme Court of Georgia

Kenneth W. Krontz, Lithia Springs, Elizabeth A. Geoffroy, Decatur, Barry J. Fisher, Atlanta, for Thornton.

David J. McDade, Dist. Atty., Douglasville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Matthew P. Stone, Rachelle L. Strausner, Asst. Attys. Gen., Dept. of Law, Atlanta, for the State.

SEARS, Justice.

Ronnie Thornton was convicted of the malice murder of Artealia Lavant; three counts of the felony murder of Artealia Lavant, the underlying felonies being two counts of cruelty to children and one count of aggravated battery; and one count of cruelty to children as to Cynthia Lavant. The jury recommended the death penalty for each of the four counts of murder, finding that each murder had been committed during the course of an aggravated battery, OCGA § 17-10-30(b)(2), and that each murder was wantonly vile, horrible or inhuman in that it involved torture to the victim and depravity of mind. OCGA § 17-10-30(b)(7). The trial court imposed four death sentences for the murder convictions, and a twenty-year consecutive sentence for the offense of cruelty to children. 1

Shirley Lavant and her three young children, Cyquieta, Cynthia and Artealia, lived with Ronnie Thornton. Thornton was frequently unemployed, and was the primary caretaker of the children while Lavant worked. On the day of Artealia's death Lavant returned home after taking Cyquieta to school. She found Thornton standing over Artealia's motionless body. Thornton stated that Artealia, two years old, had choked on pizza and that he had been performing CPR on her. Following a 911 call, paramedics arrived and unsuccessfully attempted to revive the child. Repeated attempts at the hospital to resuscitate Artealia also failed. Hospital personnel noticed that both Artealia and Cynthia, four years old, were covered in bruises, and notified the Department of Family and Children's Services (DFCS). When questioned by a nursing assistant about her bruises, Cynthia stated that "Ron did it." At that time the nursing assistant did not know who "Ron" was, but wrote down Cynthia's statement. Later that day Cynthia gave the same answer to a DFCS employee who questioned her about her bruises. There is nothing in the record to indicate that anyone present influenced Cynthia's statements.

The autopsy performed on Artealia Lavant revealed numerous fresh and old injuries, particularly to her head and face. The child was substantially underweight, and bruises covered her abdomen, chest and back. Additionally, there was an older injury to one arm indicating that the tissues had been repeatedly grabbed and rotated. The doctor who performed the autopsy opined that significant head injuries were the cause of Artealia's death. There was no presence of food in the child's throat or windpipe, and no indication that she died as a result of choking.

A further examination of Cynthia Lavant revealed, in addition to numerous external bruises, that she had untreated, older fractures of her upper arm, wrist bone and ribs. The examining physician testified that it would take a significant amount of force to fracture the ribs in this manner.

Shirley Lavant testified that she began living with Thornton while in the process of divorcing the children's father. She stated that she had repeatedly noticed bruising and other injuries sustained by the children, but that Thornton had always explained that they had fallen or otherwise hurt themselves while playing. Lavant was originally charged with Artealia's murder, but these charges were dismissed, and Lavant was permitted to plead guilty to two counts of cruelty to children.

Lavant's sister-in-law, Jean Wallace, testified that on several occasions prior to Artealia's death she noticed that the child was bruised, swollen and extremely withdrawn. When she confronted Lavant, Lavant stated that Artealia had injured herself playing. Wallace repeatedly contacted Cobb County DFCS seeking an investigation, but none was made.

1. Construing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Thornton guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. (a) Over Thornton's objection the trial court, under the auspices of the Child Hearsay Act, admitted in evidence the videotaped statement of Chuckie Colon, a twelve-year-old relation of the Lavants, who stated that, on two separate occasions, he saw Thornton physically abuse Artealia and Cynthia Lavant. This videotape was made by Jean Wallace and another Lavant relation eight months after one of the alleged incidents occurred and five months after the occurrence of the other. In the videotape Chuckie described watching Thornton slap and strike both victims; jerk their arms; pick up and drop Artealia; and throw Artealia on her bed. After the jury had viewed the videotape, Chuckie took the stand and testified that he was telling the truth when the videotape was made.

Initially, we agree with Thornton that Chuckie's videotaped statement was not admissible under the Child Hearsay Act, OCGA § 24-3-16. That Act provides that

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. (Emphasis supplied.)

The Act, by its own language, excepts from the hearsay rule "only ... such statements as are made by the actual victim of the event being related." (Emphasis supplied.) Assad v. State, 195 Ga.App. 692, 693, 394 S.E.2d 617 (1990); Riddle v. State, 208 Ga.App. 8, 11(2), 430 S.E.2d 153 (1993) ("That statute provides an exception to the hearsay rule only for statements concerning acts of sexual conduct or physical abuse performed on the child making the statement." (Emphasis supplied.))

The cases relied on by the state do not support a conclusion that the out-of-court statements of a child witness who observes the physical abuse of another child, but who is not himself a victim of such abuse, may be admitted as an exception to the hearsay rule under OCGA § 24-3-16. 2

Contrary to the state's contention, the amendment to OCGA § 24-9-5 governing the competency of certain classes of witnesses excepts "children solely from a competency challenge based on the allegation they do not understand the nature of an oath," Sizemore v. State, 262 Ga. 214, 217, 416 S.E.2d 500 (1992), or the nature of the truth. Norton v. State, 263 Ga. 448(3), 435 S.E.2d 30 (1993). It does not expand the circumstances under which hearsay statements of a child may be admitted in evidence.

The record does not support the state's additional argument that Chuckie's videotaped statement was admissible under the Child Hearsay Act because Chuckie was a victim of mental abuse by Thornton. See OCGA § 16-5-70. While Chuckie stated that he was afraid of Thornton, he also said that the only statement Thornton ever made to him in connection with his observation of the abuse was to "mind [his] own business."

Furthermore, we conclude that Chuckie's videotape was not admissible as a prior consistent statement, see Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985), because no in-court testimony was ever elicited by the state with which the videotape could be consistent and the veracity of which could be attacked.

(b) Thornton argues the trial court erred in admitting videotaped interviews between a sheriff's deputy and Cynthia and Cyquieta Lavant, also under the Child Hearsay Act. Contrary to Thornton's contention, videotaped statements of victims of abuse are not inherently inadmissible under the Child Hearsay Act if the requirements of the statute are otherwise met. Vick v. State, 194 Ga.App. 616, 391 S.E.2d 455 (1990).

In her interview Cyquieta stated that when she left for school on the morning of Artealia's death, Artealia was not sick. She additionally stated that "once in a while" Thornton would pick Artealia up by one arm. Cyquieta also stated that at one point Artealia's arm was swollen and her mother "suspect[ed] it was Ron by picking her up by the arm." Because these statements were observations of the abuse of another rather than statements of abuse suffered by the declarant, the statements were inadmissible under the Child Hearsay Act.

In her videotaped statement Cynthia said that Thornton inflicted the bruises on her face. She also stated that Thornton had hit both Artealia and Cyquieta. While the former statement was admissible under the Child Hearsay Act, the latter was not.

We find that the trial court erred in admitting Cyquieta's videotaped statement, and erred in admitting Cynthia's videotaped statement except to the extent Cynthia described abuse inflicted upon herself.

Due to the erroneous admission of the evidence described above, the appellant's conviction must be reversed. In the remainder of this opinion, we will consider the appellant's remaining enumerations of error and address those issues which potentially could reoccur if the state chooses to retry the appellant.

(c) Cynthia Lavant's statement to a nurse's aide, in response to a question about her bruises, that "Ron did it," was admissible under the Child Hearsay Act. Cynthia was the actual victim of the abuse being related, she was available to testify, and the defense attorney expressly declined the trial court's offer, made outside the presence of the jury, to call the child to the stand pursuant to Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987).

(d) There is no requirement in OCGA § 24-3-16 that the state provide the defense with pre-trial...

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2 books & journal articles
  • Evidence - Marc T. Treadwell
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