VIRGER v. THE STATE (Two Cases)
305 Ga. 281
| Ga. | 2019Background
- Victim: Diarra Chappell, 13‑month‑old living in a Douglas County townhouse with Darius Virger and Alexis Cave; she died on Feb. 15, 2013 from abusive head trauma and forceful rectal injury.
- Virger was primary caregiver; both adults lived together, had a history of domestic violence, and exchanged antagonistic texts; multiple bruises on Diarra were observed prior to death.
- After an early‑morning emergency, Virger and Cave brought Diarra to the hospital; autopsy revealed multiple blunt‑force head injuries inconsistent with a highchair fall and a fresh hemorrhage/tearing of the rectum consistent with forceful penetration.
- At trial Virger was convicted of malice murder, first‑degree child cruelty, aggravated sexual battery, and related counts; Cave was convicted of felony murder (based on second‑degree child cruelty), first‑degree child cruelty, and aggravated sexual battery; both received life sentences plus consecutive terms for other counts.
- On appeal both challenged sufficiency of evidence and denial of severance; Virger raised additional claims (juror for‑cause strike, physical separation, 404(b) evidentiary rulings); Cave challenged admission of character evidence, exclusion of expert testimony (Battered Person Syndrome/PTSD), and denial of a continuance.
Issues
| Issue | Virger’s Argument | Cave’s Argument | Held |
|---|---|---|---|
| Sufficiency — murder and child‑cruelty convictions | Evidence insufficient to prove malice murder and child‑cruelty beyond reasonable doubt | (joined) Evidence insufficient to support felony murder based on child cruelty and aggravated sexual battery | Evidence sufficient as a matter of law; experts excluded highchair fall; Cave’s conduct and admissions supported party liability and proximate cause |
| Sufficiency — aggravated sexual battery | No DNA/semen; no proof of specific object; alternative causes possible | Similar challenge to aggravated sexual battery conviction | Medical and expert testimony supported forceful rectal trauma; jury could infer foreign‑object penetration; absence of defendant’s DNA not dispositive |
| Severance (joint trial) | Antagonistic defenses and spillover from evidence against Cave required severance | Spillover from strong evidence against Virger prejudiced Cave | Trial court did not abuse discretion; limiting instructions given and jury differentiated culpability |
| Exclusion of BPS/PTSD expert testimony | N/A | Expert proffered to negate mens rea and support coercion defense; trial court excluded it | Exclusion affirmed: BPS/PTSD evidence admissible to support self‑defense only; Georgia law bars use to negate intent or support coercion; trial court did not abuse discretion |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Thompson v. State, 295 Ga. 96 (2014) (limits on admitting Battered Person Syndrome/PTSD testimony; admissible for self‑defense only)
- Smith v. State, 247 Ga. 612 (1981) (recognition of Battered Person Syndrome as relevant to self‑defense)
- Krause v. State, 286 Ga. 745 (severance standard; antagonistic defenses alone insufficient)
- Lupoe v. State, 300 Ga. 233 (joint trial of co‑defendants charged with same crimes permissible when evidence overlaps)
- Grayer v. State, 282 Ga. 224 (proximate causation where failure to obtain medical care can support felony murder)
- State v. Mott, 931 P.2d 1046 (Ariz. 1997) (upholding exclusion of psychiatric testimony offered to negate intent; discussed for comparative authority)