Whitaker v. State

Decision Date29 May 2012
Docket NumberNo. S12A0640.,S12A0640.
Citation291 Ga. 139,728 S.E.2d 209,12 FCDR 1780
CourtGeorgia Supreme Court


Kevin Christopher Armstrong, Albany, for appellant.

Gregory W. Edwards, Dist. Atty., District Attorney's Office, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Ruth Thrower, Asst. Atty. Gen., Department of Law, Arkesia Shimira Jenkins, Albany, for appellee.

CARLEY, Presiding Justice.

After a jury trial, Appellant Tony Orlander Whitaker was found guilty of felony murder and cruelty to children. The trial court entered judgment of conviction for the felony murder and sentenced Appellant to life imprisonment. The cruelty to children charge merged into the felony murder conviction. Appellant appeals after the denial of a motion for new trial.*

1. Construed most strongly in support of the verdicts, the evidence shows that on May 17, 1999, Shonda Sweet left her 13–month–old twin sons with Appellant while she ran errands for the day. At some point, Appellant phoned his godmother, Dorothy Williams, asking her to come over to his house. Ms. Williams, noticing that Appellant sounded upset, drove to Appellant's home with her husband Dennis and her daughter Denata. Upon arriving, Appellant asked Ms. Williams to check on Darrius, one of the twins, because he could not awaken him. When Ms. Williams entered the bedroom, she saw Darrius lying face down on the corner of the bed and his lips were purple. Mr. Williams called 911, and Denata attempted to perform CPR on Darrius but had no success. Paramedics arrived and tried to revive the child. Darrius was then taken to the hospital, but he was declared dead on arrival.

Speaking with hospital staff and law enforcement, Appellant reported that Darrius had been ill and indicated that he had heard something fall and found the child on the floor next to the bed. Appellant stated that the child was breathing and that he placed the child back on the bed. Later, when he went to check on Darrius, he saw that the baby was not breathing and that he had been vomiting out of the mouth and nose.

The forensic pathologist who performed the autopsy found swelling and a patterned injury on the back of the head, suggesting that the victim's head was struck on an uneven surface. There were circular bruises on the forehead indicating “grip marks where somebody's grabbed the child's head and squeezed vigorously, or knuckle marks where somebody's rapped a knuckle on the head, or even knuckle marks in terms of punching.” The victim also had several fractures in his skull. The pathologist testified that, because the plates in the skull of a 13–month–old child are not yet fully hardened, the cause of the skull fractures must have been a sharp force. The victim also suffered damage to his brain, including hemorrhages and bruising and swelling of the brain itself. The victim had bruises along the buttocks, back, and head. The pathologist testified that these injuries were acute, meaning that they were less than three to four hours old. He concluded that the injuries were caused by blunt force trauma by shaking and impact, with the bruises along the victim's body corresponding with where the victim was likely grabbed. The pathologist also stated that the victim could not have sustained the type and severity of injuries as those found from simply falling off a bed.

Appellant contends that the evidence against him was merely circumstantial and thus the State was required to show that the proved facts excluded ‘every other reasonable hypothesis save that of [his] guilt....’ [Cit.] Kier v. State, 292 Ga.App. 208, 210(1), 663 S.E.2d 832 (2008). According to Appellant, the proved facts were consistent with his theory that the victim died from injuries related to falling off the bed.

(Q)uestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Cit.) (Cit.) It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. (Cit.) [Cit.]

Whitus v. State, 287 Ga. 801, 803(1), 700 S.E.2d 377 (2010). Here, it is undisputed that the victim did not have the physical injuries outlined above when Ms. Sweet left her house on the day of the crime. It is also undisputed that, besides the victim's baby brother, Appellant was the only person present during the hours in which the victim was physically injured and began to show signs of shaken baby syndrome. The pathologist testified that the location and severity of injuries was inconsistent with a mere fall from the bed. “And the jury was not required to believe [Appellant's] version of events, but was authorized to weigh it against the medical testimony.... [Cit.] Mahan v. State, 282 Ga.App. 201, 203(1), 638 S.E.2d 366 (2006). Therefore, after reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to have authorized a jury to find that the State excluded all reasonable hypotheses except that of Appellant's guilt, and to have authorized any rational trier of fact to find Appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Mahan v. State, supra;Johnson v. State, 278 Ga.App. 66, 68(1), 628 S.E.2d 183 (2006); Hood v. State, 273 Ga.App. 430, 433(1), 615 S.E.2d 244 (2005).

2. Appellant contends that trial counsel rendered ineffective assistance of counsel by failing to object to pervasive comments on Appellant's pre-arrest silence. Specifically, Appellant points to testimony elicited by the prosecutor from Department of Family and Children Services investigator Natalie Green, the responding emergency medical technicians, and hospital personnel regarding his failure to seek help for the victim earlier, his failure to claim responsibility for the victim, and his failure to give information in response to queries regarding what had happened to the victim. According to the record, the prosecutor also commented upon this testimony regarding Appellant's pre-arrest silence during opening and closing arguments.

‘To prevail on a claim of ineffective assistance of counsel, [Appellant] must show both that his trial attorney's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).’ Greer v. Thompson, 281 Ga. 419, 420, 637 S.E.2d 698 (2006). However, this Court is not required to address ... “both components if the defendant has made an insufficient showing on one.” (Cit.) [Cit.] Turpin v. Curtis, 278 Ga. 698, 699(1), 606 S.E.2d 244 (2004). The trial court found that Appellant made an insufficient showing on the prejudice prong, and we “must affirm the ... court's determination of this claim unless ‘its “factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. (Cit.) (Cit.) [Cit.] Turpin v. Curtis, supra.

In order to satisfy the prejudice prong, Appellant must show that but for his trial counsel's alleged deficiencies, “there is a reasonable probability that the outcome of the proceeding would have been different.... [Cit.] Johnson v. State, 290 Ga. 382, 383(2), 721 S.E.2d 851 (2012). As the trial court emphasized, there was strong evidence of Appellant's guilt, including that it was undisputed that Appellant was the only adult caring for the victim when he received his mortal injuries and that Appellant's defense that the baby fell from the bed was not supported by the medical evidence, which showed that the victim's multiple injuries were the result of violent and severe actions. Due to the strong evidence against Appellant, “it is highly probable that any improper argument [or improper testimony] did not contribute to the verdicts. [Cits.] Lloyd v. State, 280 Ga. 187, 192(2)(d)(ii), 625 S.E.2d 771 (2006). Therefore, Appellant has made an insufficient showing of prejudice and thus his claim for ineffective assistance of counsel must fail. See Jones v. State, 288 Ga. 431, 434, 704 S.E.2d 776 (2011); Lambert v. State, 287 Ga. 774, 777(2), 700 S.E.2d 354 (2010).

3. In the present case, the original motion for new trial was filed on February 8, 2000. Over ten years passed before the first hearing on this motion took place. Appellant asserts that he was denied his constitutional right to due process because the long delay prevented him from presenting an adequate appeal.

This Court has recognized that substantial delays experienced during the criminal appellate process implicate due process rights. [Cits.] ... [We] utilize[ ] an...

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    ...that Bradley had any opportunity to inflict the child's severe injuries during the time in question.15 See Whitaker v. State , 291 Ga. 139, 143-144 (3), 728 S.E.2d 209 (2012) ("[A]s to failing to call certain witnesses, any evidence that the mother abused the child in the past would have be......
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