Wright v. State

• Decision Date: 23 February 2009
• Docket Number: No. S08A1825.,S08A1825.
• Citation: Wright v. State, 673 S.E.2d 249, 285 Ga. 57 (Ga. 2009)
• Parties: WRIGHT v. The STATE.
• Court: Georgia Supreme Court

285 Ga. 57

673 S.E.2d 249

WRIGHT v. The STATE.

No. S08A1825.

Supreme Court of Georgia.

February 23, 2009.

William J. Mason, Columbus, for Appellant.

Robert Bradford Bickerstaff, II, Asst. Dist. Atty., John Gray Conger, Dist. Atty., Thurbert E. Baker, Atty. Gen., Sara Kaur Sahni, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Appellant Christopher Wright appeals his conviction for malice murder, felony murder, and cruelty to children arising from the death of his stepdaughter, five-year-old India Barrow.¹ At trial, it was shown that on the night of February 9, 2004, the mother left the victim and her infant half-brother in the care of appellant. Appellant made statements to police that he tried to feed the victim dinner, but she spit up her food and so he "popped" her twice. At trial, appellant further testified that after he "popped" the victim, he shook her and, while shaking her, her head hit the railing of her bunk bed. Appellant then put the child to bed. When the mother returned home, appellant dissuaded her from checking on the children, saying he would do it, and so she went to bed without looking in on the victim. The next morning, appellant went into the victim's room and started yelling her name. When the mother saw the child in appellant's arms, the victim was in a comatose state and so 911 was called.

On February 10, 2004, the victim was admitted to the hospital, comatose and in critical condition, suffering from massive head injuries and intra-cranial bleeding such that she was immediately placed on life-support. The victim died of her injuries on February 15, 2004. Hospital authorities concluded the victim's injuries were consistent with abuse.² Appellant now appeals his conviction, challenging the trial court's admission of certain evidence and alleging he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder and cruelty to children. OCGA § 16-5-70(b); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant claims the trial court erred when it admitted evidence of a similar transaction concerning the victim's infant brother. The facts underlying this enumeration of error show that on July 4, 2003, the mother brought the victim into the emergency room because of injuries she sustained while in appellant's care. The victim had a black eye, cut lip, swelling on her face, and ruptured eardrums. Because the authorities suspected child abuse based on the nature of the victim's injuries, they also had the victim's infant brother brought to the hospital for observation. At trial, it was shown that the infant had also sustained a cut lip and black eye.

Appellant contends evidence of the infant's injuries was inadmissible. We disagree.

Similar transaction evidence must satisfy three elements to be admitted: (1) the evidence must be introduced for a proper purpose; (2) the evidence must establish by a preponderance of the evidence that the defendant perpetrated the similar transaction; and (3) the two transactions must be sufficiently similar or connected so that the existence of the former transaction tends to prove the latter transaction.

Jackson v. State, 284 Ga. 484(3), 668 S.E.2d 700 (2008). We will not disturb such findings unless they are shown to be clearly erroneous. Id. at 487, 668 S.E.2d 700. Here, the State properly proffered the evidence to show course of conduct. The evidence also met the second and third prongs of the test because it showed that the injuries occurred while the infant was in appellant's care, the injuries were on similar parts of the body as the victim's injuries, and the injuries occurred simultaneously to when the victim's injuries occurred. See Glass v. State, 257 Ga.App. 662(b), 572 S.E.2d 31 (2002) (similar transaction evidence in aggravated assault case admissible where it involved same type of victim, similar inciting circumstances, and where injuries inflicted were in the same general areas of the body). Accordingly, the trial court did not err in admitting this evidence.

3. Appellant complains the trial court erred when it allowed, under the necessity exception, the admission of hearsay statements made by the victim for the purpose of showing prior difficulties between appellant and the victim. Prior difficulty evidence may be admitted to show motive, intent, or bent of mind, but its admissibility is not dependent on a showing that it is sufficiently similar to the crime. Withers v. State, 282 Ga. 656(2), 653 S.E.2d 40 (2007). "The testimony of third parties about prior difficulties between the defendant and the victim may be admitted into evidence under the necessity exception to the hearsay rule if the testimony is necessary and trustworthy" (Allen v. State, 284 Ga. 310(2), 667 S.E.2d 54 (2008)) and "when the statement is more probative of the material fact than other evidence that may be produced and offered." Turner v. State, 281 Ga. 647, 650(3)(a), 641 S.E.2d 527 (2007). Whether the testimony has particularized guarantees of trustworthiness is a matter left to the trial court's discretion and is not disturbed absent a showing of an abuse of that discretion. Miller v. State, 283 Ga. 412(2), 658 S.E.2d 765 (2008); Culmer v. State, 282 Ga. 330(2), 647 S.E.2d 30 (2007).

Appellant objects to three specific witnesses who testified regarding hearsay statements made by the victim. Each witness's testimony is addressed below.

(a). On July 20, 2002, a military police officer responded to a domestic disturbance call made by the victim's mother.³ When the officer arrived, the victim had a bruise on her face and was holding an ice pack on it. The officer, who had been trained on interviewing children, testified that when she asked the victim what happened, the victim, who was three or four at the time, repeatedly said "Daddy did it." In its order denying appellant's motion for new trial, the trial court found that the child's words were non-testimonial because they were in response to the officer's question as to what happened.

The trial court erred in admitting this evidence because the victim's statements were testimonial and violated appellant's Sixth Amendment right to confrontation. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Brown v. State, 278 Ga. 810(3), 607 S.E.2d 579 (2005). As opposed to statements made in response to garnering police assistance during an ongoing emergency (such as statements elicited during a 911 call to determine the need for assistance), here the child's words were statements in response to a question by law enforcement after the emergency had already ended and were reflective of past events and, as such, were testimonial in nature. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Thomas v. State, 284 Ga. 540(2), 668 S.E.2d 711 (2008). Nevertheless, the admission of the victim's statements was harmless because there was no "reasonable probability that the evidence contributed to the verdict" since the jury had other admissible evidence of appellant's guilt, including appellant's testimony admitting he shook the victim such that her head hit the railing of her bunk bed and medical evidence showing the victim died due to severe head trauma. Brown v. State, supra, 278 Ga. at 811, 607 S.E.2d 579. See also Bell v. State, 278 Ga. 69(3), 597 S.E.2d 350 (2004) (admission of victim's statements to police was harmless in light of the "strength of evidence" against defendant). Therefore, there was no reversible error.

(b). The victim's maternal grandmother, who provided childcare to the victim on a regular basis, testified that on the day before the child was fatally injured, the victim showed the grandmother scratches on her stomach and said appellant had hit her in the stomach. Appellant alleges the testimony is not trustworthy because the witness's daughter was a co-defendant at trial. This argument is not persuasive. The evidence revealed that the maternal grandmother took care of the child on a regular basis and was concerned for the child's welfare, even enlisting another adult's help to encourage the child to confide as to whether there were any problems at home. Under these circumstances, there were particular guarantees of trustworthiness to warrant the admission of the grandmother's testimony and the victim's statement. Brown v. State, supra, 278 Ga. at 810-811, 607 S.E.2d 579 (statements victim made to family member regarding prior difficulty with defendant were admissible under necessity exception); Bell v. State, supra, 278 Ga. at 72, 597 S.E.2d 350 (statements victim made to relatives were admissible under necessity exception to hearsay rule to establish prior difficulty). The trial court's decision to admit this evidence was not an abuse of discretion.

(c). The victim's biological father, who had not been allowed by the mother and appellant to see the victim in some time, testified that in the fall of 2003 he was allowed by the maternal grandmother to visit with the victim and, during the visit, the victim told him appellant had hit her in the stomach. The biological father stated he checked her stomach, but did not see any injury. Appellant argues that because the biological father had not legitimated the child or been in her life consistently, the victim's statements to the biological father did not have particularized guarantees of trustworthiness. Pretermitting whether the biological father's testimony should have been precluded, any error in allowing the testimony was harmless in light of the overwhelming evidence of appellant's guilt. See Humphrey v. State, 281 Ga. 596, 600, 642 S.E.2d 23 (2007).

Accordingly, there was no error warranting reversal of appellant's conviction based on the trial court's...