Roddicus Butler was tried by a Decatur County jury and convicted of the murder of Jamira Washington, a two-year-old child. Following the denial of his motion for new trial, Butler appeals, contending that the evidence is insufficient to sustain his conviction, that the trial court erred when it denied his motion to suppress certain statements that he gave to law enforcement, and that he was denied the effective assistance of counsel at trial. Upon our review of the briefs and record, we find no error, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Butler lived with Doretha Washington and her three young children — one of whom was Jamira — in a house in Bain-bridge.
Later that afternoon, James Earl Spooner, Jr., an investigator with the Bainbridge Police Department, interviewed Butler at the house Butler shared with Doretha and the children. In that interview, Butler explained that he had slept until early afternoon, that he
The medical examiner subsequently determined that Jamira had died as a result of blunt-force trauma to her abdomen, and he ruled out the possibility that Jamira might have choked or died as a result of improperly administered CPR measures. Besides the abdominal trauma, the medical examiner also noted that Jamira had suffered a number of other significant injuries, including a puncture wound to the back of her head, a fractured arm, bruises on her back, defensive wounds on her hands, and internal head injuries consistent with blunt-force trauma to the head. In light of the findings of the medical examiner, Investigator Spooner arranged to interview Butler again, this time at the police station.
At the second interview, Butler stuck at first to his original story.
On appeal, Butler contends that the State failed to prove beyond a reasonable doubt that he acted with malice, which is required, of course, to sustain a conviction for felony murder predicated on cruelty to children in the first degree. See OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”). In support of this contention, Butler points to his own testimony at trial that he was merely
It is true that a parent — or someone acting in loco parentis —■ may apply some force to a child as a disciplinary measure without violating the law. But the application of such force must be reasonable, and if it is not, it may go beyond mere discipline and instead amount to malicious infliction of “cruel or excessive physical or mental pain.” Tabb v. State,
2. We next consider the contention that the trial court erred when it denied a motion to suppress the oral and written statements that Butler gave to Investigator Spooner at the second interview. The record shows that Investigator Spooner attempted to make an audio and video recording of the interview, but the recording stopped before
At a Jackson-Denno
[i]n ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.
Humphreys v. State,
In this case, we cannot say that the trial court clearly erred when it credited the testimony of Investigator Spooner, and we cannot say that it erred when it concluded that the statements given by Butler
3. Last, we consider the contention that Butler was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Butler must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington,
(a) Butler first claims that his trial lawyer was ineffective because she failed to object when Investigator Spooner testified that, after Butler stuck to his original story at the outset of the second interview, Investigator Spooner told Butler: “[Y]ou and I both know this is not exactly what happened[.] You are holding something out, apparently you got mad and lost your temper or whatever.” Citing Axelburg v. State,
Like any other evidence, testimony reflecting comments made by an officer in the course of an interview ought not be admitted if the probative value of the testimony is substantially outweighed by its tendency to unduly arouse emotions of prejudice, hostility, or sympathy.*
The probative value of this testimony was not substantially outweighed by its prejudicial effect. It hardly would have surprised anyone observing the trial to learn that Investigator Spooner was not satisfied with the original story that Butler had offered and believed
(b) Butler also asserts that his trial lawyer was ineffective because she failed to object on two other occasions on which witnesses expressed opinions, he says, on the ultimate issue. In one instance, the prosecuting attorney asked Investigator Spooner, based on his investigation, “who killed Jamira,” and Investigator Spooner responded, “Roddicus Butler.” In the other instance, the medical examiner testified that he “delineate [d] the manner of [Jamira’s] death as a homicide.” “Generally, witnesses are prohibited from expressing opinions on an ultimate issue where jurors can come to their own conclusion from factors within their understanding.” Sharpe v. State,
(c) Butler further contends that his trial lawyer was ineffective when she failed to object to opinion testimony by Investigator Spooner about the proper administration of CPR measures,
questioned as [an] expert [ ] by the State, and thus [was] either tacitly or impliedly accepted as such by the trial court. It follows that any objection raised by [Butler’s lawyer] to such questioning would have been futile, and therefore cannot serve as the basis for a claim of ineffective assistance.
Fielding v. State,
(d) Finally, Butler complains that his lawyer failed to object to the prosecuting attorney asking leading questions of the witnesses for the State, but Butler cites only six leading questions asked in the direct and redirect examinations of the medical examiner and two leading questions during the direct examination of Investigator Spooner. Having reviewed each leading question in its context, we conclude that Butler has not met his burden to rebut the presumption that the failure to object to the leading questions might have been sound trial strategy. As a result, he has failed to show deficient performance. Mitchell,
(e) In conclusion,
[t]he absence of evidence from which a finding of trial counsel’s deficient performance could be made, coupled with [Butler’s] mere speculation concerning the prejudice purportedly wrought by the unproven deficient performance, leads us to conclude the trial court did not err when it determined that [Butler] did not carry his burden of proving ineffective assistance of counsel....
Jones v. State,
Judgment affirmed.
Notes
The events that form the basis for the conviction occurred on November 19,2003. Butler was indicted on February 3, 2004 and charged with cruelty to children in the first degree and felony murder predicated on cruelty to children in the first degree. His trial commenced on May 4,2004, and the jury returned its verdict on the same day, finding Butler guilty on both counts. The trial court merged the cruelty to children into the felony murder, see Sears v. State,
Butler apparently is the father of one of the children, but not Jamira.
As Butler carried Jamira down the road, he encountered his mother and another witness. He told his mother that Jamira was choking, and she called for emergency assistance. The other witness administered CPR measures until emergency personnel arrived, noting as she did that Jamira had several large bruises on her abdomen.
At the request of Investigator Spooner, Butler also demonstrated his CPR technique on a mannequin. Investigator Spooner - who once had been certified as a CPR instructor and had been employed previously with emergency medical services - noted that Butler did not apply significant force to the mannequin as he demonstrated his CPR technique.
See Miranda v. Arizona,
See Jackson v. Denno,
In any event, when a question is raised on appeal about the voluntariness of a statement, the appellate court is not limited to the evidence adduced at a Jackson-Denno hearing, and it instead “may look to all the evidence of record in determining the admissibility of a confession.” Haynes v. State,
Figuratively speaking, the hill that must be climbed to make out a claim of ineffective assistance is almost always high and steep. In this case, however, it is especially high and steep because Butler failed to put on any evidence in support of his claim — including any testimony from his trial lawyer - at the hearing on his motion for new trial. Instead, Butler agreed to submit his motion to the trial court on the moving papers and without presenting any evidence beyond the trial record. Inasmuch as Butler “waived a hearing, there is no testimony of trial counsel regarding the decisions [s]he made at trial. In the absence of evidence to the contrary, counsel’s decisions are presumed to he strategic....” Mitchell v. State,
We do not comment here on the admissibility of opinion testimony under OCGA § 24-7-701 et seq., which were enacted as a part of our new Evidence Code. Because this case was tried before January 1, 2013, the new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101.
Whether a statement actually was made in an interview is a question of fact, not opinion. What happened, happened.
Under the new Evidence Code, see note 9, supra, “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403.
If Investigator Spooner had been satisfied with the original account, there obviously would have been no second interview, and Investigator Spooner would not have continued to challenge and question that account after Butler repeated it. Moreover, the jury knew that Investigator Spooner arrested Butler at the conclusion of the second interview, a circumstance that signaled quite clearly what Investigator Spooner thought had happened to Jamira.
In Axelburg, the Court of Appeals held that the trial court ought not have admitted interrogation comments in which an officer claimed that he had expertise concerning sleepwalking, held himself out as an expert in forensic interview techniques, said that he knew whenever a suspect was lying, and accused the defendant of lying about his sleepwalking.
We note as well that any rational juror would have surmised that Investigator Spooner believed that Butler had killed Jamira, even without being told explicitly. Such a comment upon the patently obvious carries little danger of prejudice. See Division 3 (a), supra.
In particular, Spooner testified that, because of the location of the bruises on Jamira and the necessity for a heartbeat in order for a person to receive bruises, it did not occur to him that Jamira’s injuries would have been caused by CPR.