Virger v. State, S18A1538

CourtSupreme Court of Georgia
Citation824 S.E.2d 346,305 Ga. 281
Decision Date18 February 2019
Docket NumberS18A1538,S18A1539
Parties VIRGER v. The STATE. Cave v. The State.

305 Ga. 281
824 S.E.2d 346


The State.


Supreme Court of Georgia.

Decided: February 18, 2019

824 S.E.2d 349

Miller & Key, J. Scott Key, Kayci N. Timmons, for appellant (case no. S18A1538).

James K. Luttrell, for appellant (case no. S18A1539).

Ryan R. Leonard, District Attorney, Sean A. Garrett, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

NAHMIAS, Presiding Justice.

824 S.E.2d 350
305 Ga. 281

Darius Virger and Alexis Cave were tried together for crimes related to the beating and death of Diarra Chappell, a 13-month-old child who lived with them. Virger was convicted of malice murder, Cave was convicted of felony murder, and both were convicted of other offenses. On appeal, both Virger and Cave challenge the legal sufficiency of the evidence supporting some of their convictions and contend that the trial court erred by not severing their cases for trial. Virger also contends that the trial court erred by failing to strike a juror for cause, by physically separating the co-defendants during their trial, and by overruling several of his evidentiary objections. Cave contends that the trial court erred by allowing the admission of impermissible character evidence, by excluding expert testimony about her mental condition, and by denying her motion for a continuance. Our review of the record, however, reveals no reversible error, so we affirm the convictions in both cases.1

305 Ga. 282

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Virger and Cave began their tumultuous marriage in May 2011, when Cave was 16 years old and Virger was almost 26. Cave became pregnant shortly thereafter, but the couple separated in October. Virger and Cave's daughter A.V. was born in April 2012. A few months later, Virger began dating Tina Chappell, who had recently given birth to Diarra. Virger, Chappell, and Diarra began living together in a townhouse in Douglas County. In October 2012, Chappell was arrested, and Virger began taking care of Diarra by himself while Chappell was in jail.

In November 2012, Virger and Cave began seeing each other again, but their renewed relationship was fraught with jealousy, arguments, and violence; Cave claimed that Virger was physically abusive toward her on a daily basis. Several text messages from Cave referenced Virger's physical abuse toward her, asking him to "stop putting [his] hands on [her] and saying that she was "not [his] personal punching bag." Virger sent a text threatening "to beat [Cave's] ass." Many texts from Cave's phone also indicated that she was resentful of Virger's relationship with Chappell and Diarra; several texts Cave sent in November and December 2012 accused Virger of not caring about her because he had a "new family with a new daughter" whom he loved "more than [his] real family." Cave also sent her father a text in November saying, "idgaf about [Diarra]."2

In January 2013, Cave and A.V. moved into the townhouse with Virger and Diarra.

824 S.E.2d 351

Virger continued acting as the primary caretaker for Diarra, and Cave spent more time caring for A.V. On January 8, Cave sent a text to Virger saying that A.V. "gets less because you have

305 Ga. 283

to take care of Diar[r]a" and "I just can't stand the fact that she's taking away from our daughter." In early February, Cave sent Virger a text telling him, "You obviously think Diarra is really your daughter and you clearly care about her more than everyone else in the house." In addition, during January and February, Virger and Cave sent each other hundreds of text messages in which they argued, cursed, and accused each other of infidelity, although many of those messages were immediately followed by texts professing their love for each other.

On several occasions after Virger began taking care of Diarra, witnesses noticed bruises on her, including bruises on her upper arms, forehead, and cheeks and around one of her eyes. During a visit with Virger and Diarra at the jail on December 22, 2012, Chappell observed that Diarra had a black eye. When Chappell asked Virger about it, he replied that Diarra had fallen while trying to pull herself up. In early February 2013, Virger's aunt noticed that Diarra had a black eye, and Virger claimed that Diarra was learning to walk and had fallen down.

On February 14, Virger and Cave's texts to each other indicate that they argued throughout the day, that Cave left the townhouse sometime around 9:00 p.m. because she was angry with Virger, and that she returned a little before 10:00 p.m. Surveillance video from a convenience store near the townhouse shows that Virger bought two Honey Buns around 10:30 p.m. At 2:00 a.m. on February 15, Cave sent Virger a text saying, "F*ck you. I'm so tired of you. All you wanna do is hurt people and blame it on me. You are evil and you don't know how to love anybody." Around 6:45 a.m., a woman staying at another townhouse in the complex saw a man and a woman hurrying from Virger and Cave's front door toward their car in the parking lot and then driving off in a rush; they did not have any children with them.

More than two-and-a-half hours later, at 9:24 a.m., Virger and Cave brought Diarra to a hospital. She had significant bruising across her head and ear, and she was unresponsive and in cardiac arrest. Virger told medical staff that Diarra had fallen from a highchair the day before; that he had given her a bottle that morning and then left the room to make a phone call; and that when he returned to check on her, her left arm was shaking and she was not breathing. While they were attempting to resuscitate Diarra, a doctor and nurse removed her diaper to take her temperature; they noticed that there was tearing to the outside of her rectum, which "was extremely dilated and open." Diarra was declared dead at 9:54 a.m.

Later that day, Virger and Cave were interviewed separately by sheriff's officers; their video-recorded interviews were played for the jury at trial. Both appellants acknowledged that no one else had

305 Ga. 284

taken care of Diarra during the preceding couple of days. They both claimed that Diarra had fallen from a highchair the previous afternoon but had seemed fine; that she had gone to sleep around 1:30 a.m.; that Virger gave her a bottle in her crib around 8:30 a.m.; that when he checked on her about 30 minutes later, she was not breathing; and that they then got dressed, put both Diarra and A.V. in their car seats, and drove to the hospital. Both Virger and Cave denied any knowledge of Diarra's rectal injuries. When asked why Diarra was wearing a fresh diaper when she arrived at the hospital, Cave said that just before they left for the hospital, she had changed Diarra's diaper because it had been fastened together with tape and she did not want hospital staff to think they were "unfit parents." When Cave was left alone in the interview room, she said to herself, "I'm going to hell" and "I'm sorry, baby." During a search of the townhouse later that day, officers found a diaper on the floor of Diarra's room that tested positive for the presence of blood.

A couple of days later, Cave and Chappell, who had been released from jail, were involved in a fight, during which Cave threatened to send Chappell "to be with [her] daughter." In mid-March, Cave moved out of

824 S.E.2d 352

the townhouse, and shortly after that, Chappell moved back in. After Cave discovered that Virger was seeing Chappell again, Cave sent a text threatening Virger that she was "telling" and that he was "about to be locked up."

About ten weeks after Diarra died, on June 3, 2013, Virger gave a second statement to a detective, complaining that Cave had sent him threatening voicemails; the recorded interview and the voicemails were also played at trial. In one of the voicemails, Cave said, "you want to threaten me ... talking about oh, well if you tell ... this gonna happen ... well guess what motherf*cker, I ain't covering for you no more. Me and my baby are not about to pay the price for your actions. So guess what? You're going down because I'm talking to my lawyer." Virger told the detective that he suspected Cave may have had something to do with Diarra's death, although he claimed that he had never witnessed Cave being violent toward Diarra.

About a week later, Cave also provided a second statement to the detective, which was also recorded and played for the jury. Cave told the following story. In the early morning hours on the day Diarra died, Diarra was in the living room with Virger when she began to cry; Virger put his hand over Diarra's mouth and nose to stop her from crying, and when Cave tried to push his hand away, he grabbed Cave by the arm and ordered her to sit down; when Virger...

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