White v. State

• Decision Date: 20 November 2006
• Docket Number: No. S06A0978.,S06A0978.
• Citation: 637 S.E.2d 645,281 Ga. 276
• Parties: WHITE v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 276

637 S.E.2d 645

WHITE v. The STATE.

No. S06A0978.

Supreme Court of Georgia.

November 20, 2006.

COPYRIGHT MATERIAL OMITTED

Edward R. Downs, Jr., Tiffany R. Lunn, Ed Downs & Associates, P.C., Riverdale, for appellant.

Scott L. Ballard, Dist. Atty., Rudjard Melvin Hayes, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., for appellee.

HINES, Justice.

Janice White appeals her convictions for felony murder while in the commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree, in connection with the death of her infant daughter, Daija White. For the reasons that follow, we affirm in part and vacate in part. ¹

Construed to support the verdicts, the evidence showed that Daija was ten months old at the time of her death. She lived with White, her father, Otheron Marcel Walker, and a brother, who was then twenty-two months old. On October 16, 2003, White left for work at 4:10 p.m.; a neighbor heard Daija "whining" inside the apartment. The neighbor and Walker spoke outside the apartment for approximately 20 minutes. No other adult was at the apartment.

At 5:46 p.m., a physician was called to the emergency room of a hospital where Daija had been taken by ambulance; Daija was already dead. She was bruised on her face and head, shoulder, and chest, which appeared to have been squeezed by hands. There was a cut on her abdomen, and marks on her groin and a thigh, showing very recent blows. On the outside of her genitalia, there was bruising and some healing lesions,² and there were bruises and lacerations on the back of her thighs, including the mark of a strap; these injuries had occurred two or three days before her death, while some of the injuries to the torso were the final blows before death. Walker told the physician that Daija's brother must have thrown her off the bed or against a wall. Earlier, Walker had told the emergency personnel who came to the apartment that Daija had fallen from the bed. Neither of these accounts was consistent with the observed injuries.

White was notified at her job that Daija had been taken to the hospital; before leaving work, White waited ten minutes for her payroll check to be given to her; she also made some telephone calls. When White arrived at the hospital, she told the physician attending Daija that she had bathed Daija that day, had viewed her entire body, and saw no injuries. The physician testified that had White bathed Daija within the last three days before her death, the injuries would have been apparent. The physician also opined that Daija's last injuries were probably inflicted within two hours of death.

The medical examiner testified that the cause of Daija's death was blunt force injuries to the head and body. Fatal abdominal bleeding had occurred due to internal bruising produced by exterior blows. Her final injuries also included two skull fractures, probably from two separate blows. A retinal injury indicated that Daija was violently shaken a month before death. Bruising on her throat indicated that Daija had been grasped firmly under the chin by an adult hand. Daija's buttocks revealed "bruising on top of bruising on top of bruising" that had occurred over the last two or three days before death; the majority of the bruises were very recent. She also had a bruise on her leg caused by an object such as a belt. Bruises covered 40 to 50 percent of Daija's body. It was "not plausible at all" that Daija's injuries were caused by a fall from a bed. The medical examiner opined that Daija suffered her final injuries two to three hours before death; on cross-examination, the medical examiner agreed that there was an "80 or 90 percent chance" that death would have occurred "within an hour or thereabouts" after the final injuries.

Daija died on a Thursday. The previous weekend, from Friday night until Sunday evening, Daija stayed with an aunt. At that time, Daija had a bruise on her thigh, and a small bruise on her cheek, but no other injuries.

White testified on her own behalf. She stated that the physician was confused about what White had told her; that White had related that she bathed Daija on Tuesday, and "tried to" on Thursday, but that Walker stopped her before she did so and said he would do it. She also testified that Walker had done all of the bathing and diapering of Daija between Tuesday and Thursday, intervening whenever she began to do it, and denied that the bruises described in the medical testimony and depicted on photographs were present on Tuesday. Between Tuesday and Thursday, White would pick Daija up, but she was always wearing long sleeves and pants; Daija did not make any cries when White held her on those days, despite the bruising depicted on the photographs. White also testified that: there was no appreciable delay when she got her paycheck, and that getting it before she left was her supervisor's idea; the only telephone calls she made at the time were to arrange transportation; and prior to the fatal day, she saw bruises on Daija that Walker explained were the result of an accident.

1. White contends that the evidence is insufficient to support her convictions, in particular urging that the medical evidence showed an "80 or 90 percent chance" that Daija's final injuries were inflicted "within an hour or thereabouts" before her death, which White marks as 5:46 p.m. She thus contends that as evidence showed that she left the apartment at 4:10 p.m., it is likely that Walker, not she, inflicted these injuries. However, the evidence of the time of Daija's death is not as precise as White asserts; the only evidence pertaining to such time frame with exactness is that the attending physician was called to the emergency room at 5:46 p.m. and that Daija was dead on arrival. The evidence did not disclose what time emergency responders arrived at White's apartment, but did disclose that Daija was not breathing at that time. The evidence was such that the jury could conclude that the time frame in which Daija's final injuries were inflicted included the time before White left for work. Further, there was evidence concerning White's actions after being called to the hospital, as well as evidence of her actions in the days preceding Daija's death that indicated her guilt; the jury was not required to accept White's version of events. See Brannon v. State, 266 Ga. 667, 668, 469 S.E.2d 676 (1996).

The evidence was sufficient to enable a rational trier of fact to find White guilty beyond a reasonable doubt of the crimes of which she was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. White asserts that the crime of cruelty to a child in the first degree should have merged for sentencing purposes with her felony murder conviction based on the underlying felony of cruelty to a child. See Malcolm v. State, 263 Ga. 369, 372-374(5), 434 S.E.2d 479 (1993).

The State agrees that the crimes merged in fact, and examining the evidence in the context of the trial court's instructions to the jury, we agree. Accordingly, the judgment of conviction and sentence entered thereon for cruelty to a child in the first degree must be vacated. See Fitzpatrick v. State, 268 Ga. 423, 424(1), 489 S.E.2d 840 (1997).

3. The trial court denied White's motion to sever her trial from that of Walker. See OCGA § 17-8-4. She contends this was error, as her defense was antagonistic to Walker's. "The mere fact that codefendants' defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm. [Cit.]" Holmes v. State, 272 Ga. 517, 518(2), 529 S.E.2d 879 (2000). White makes no such showing. Walker's only witness had previously testified for the State, and that evidence, as well as evidence flowing from Walker's cross-examinations of witnesses that arguably could be construed as implicating White, was merely cumulative of the State's evidence against her. See Loren v. State, 268 Ga. 792(2), 493 S.E.2d 175 (1997).

White nonetheless asserts that she was harmed by her inability to call Walker to testify, that evidence against Walker might have "spilled over" to her and been considered against her, and that she was forced, by virtue of the chance of a coin toss, to give her closing argument before Walker. But, White makes no showing that Walker would have been more likely to testify if their trials had been severed. See Owen v. State, 266 Ga. 312, 314(2), 467 S.E.2d 325 (1996). At the hearing on the motion to sever, although the State noted that its theory of the case was that White and Walker acted jointly in the fatal abuse of Daija, White asserted that if severance was granted, she could ask Walker if he wrote a certain letter to White after Daija's death and whether he could corroborate White's testimony that she had no intimate contact with Daija during the days before her death, without Walker invoking his rights under the Fifth Amendment to the Constitution of the United States.³ Assuming arguendo that such questioning could be conducted, White does not show that the absence of such testimony harmed her; it was uncontroverted at trial that Walker wrote the letter at issue, and there is no showing that Walker's testimony would tend to exculpate White. Id.

As to the spillover effect of evidence, the mere fact that the evidence against Walker might have been stronger than the evidence against White does not mandate severance. See Strozier v. State, 277 Ga. 78, 81(5)(b), 586 S.E.2d 309 (2003). Nor is there any harm shown by the order of closing arguments. Of necessity, in a joint trial, even when there are antagonistic defenses, one defendant must argue first. The trial court did not abuse its discretion in denying White's motion to sever. Holmes, supra.

4. After the trial court's instructions to the jury, White noted that the court frequently used plural terms such as "the...