Folson v. StateFolson v. State
- Reporters:
- , , ,
- Before:
- Benham
This аppeal is from Eugene Folson, Jr.’s conviction for felony murder, with cruelty to children as the underlying felony, based on the death of Canashus Ricardo Brown, Jr., Folson’s two-year-old stepson.
1
The mother of the victim testified at trial that Folson telephoned her at work to say something was wrong with Canashus; that she came home, found Canashus was not breathing, and called 911; and that Folson told her Canashus fell in the bathtub, and was rеluctant to give the child to her. A police officer who responded to the 911 call and attempted resuscitation
Appellant testified at trial that when he bathed the child, he left him in the tub to deal with a pot he heard boiling on the stove but returned to the bathroom upon hearing Canashus crying and coughing. Believing the child had fallen under the water, he began to hit the child’s back, then pressed his abdomen in an attempt to perform CPR. He testified Canashus calmed down but continued to whine and refused to eat, and he put him with the other children to play, then returnеd him to bed when he became sleepy. Folson denied making the statement at the scene to which the police officer testified, but admitted he did not mention at the scene that Canashus had fallen in thе bathtub or that he had attempted to perform CPR.
1. The evidence summarized above was sufficient to authorize a rational trier of fact to find Folson guilty beyond a reasonable doubt of felony murder with cruelty to children (
Evidence of the child’s age, the extent of [the] injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck is sufficient evidеnce from which a jury, applying generally-accepted societal norms, can conclude whether the defendant caused the child cruel or excessive physical pain. . . . [Cits.] The mental state of a defendant required to be established to prove cruelty to children is “ ‘the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm might result.’ ” [Cit.] The jury was authorized to conclude that appellant’s actiоns were malicious from the evidence that he, an adult, repeatedly struck the [two-year] -old victim wilfully and wantonly with “ ‘an awareness of a plain and strong likelihood that such harm might result.’ ” [Cit.]
(Punctuation and emphasis omitted.)
2. Folson contends the triаl court erred in ruling that a statement he made to a police officer was admissible. He bases his contention on his testimony that his right not to incriminate himself was not explained to him until after his statement had bеen taken, and on inconsistencies on the statement and waiver of rights forms regarding the time the interrogation began and in the testimony of an investigator present during questioning. The interrogating officer explаined the time discrepancy by stating his practice was to put the starting time of the interview process on both forms, and both the interrogating officer and the observing investigator testified the interrogating offiсer explained Folson’s rights to him prior to beginning the interrogation.
In 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 statementwas made freely and voluntarily. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to thе admissibility of the defendant’s statement at a Jackson v. Denno hearing will be upheld on appeal.
(Punctuation omitted.) Escutia v. State, 277 Ga. 400, 401-402 (1) (589 SE2d 66) (2003). Given the testimony of the officers and the explanation of the time discrepancy on the forms, we conclude the trial court’s findings that Folson was propеrly advised of his rights and that the statement was voluntarily given were not clearly erroneous and will, accordingly, be upheld.
3. Eight autopsy photographs were exhibited to the jury and admitted into evidence. Folsоn contends the admission of so many gruesome photographs was unnecessary (see McCullough v. State, 255 Ga. 672 (2) (341 SE2d 706) (1986) (photograph must be necessary to establish a material fact that could only become apparent because of the autopsy)) and was unduly prejudicial. See Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983). However, in a hearing outside the presence of the jury, testimony by the medical examiner established for each photograрh the purpose it served in demonstrating the severity of the injuries suffered by the victim and that the fact being demonstrated could not have been shown without the autopsy.
The medical examiner testified that without these photographs, the internal injuries [and] hemorrhaging ... would not be apparent and that the injuries could not be shown merely by photographs of the exterior of the body. Because these injuries did not bеcome apparent until the autopsy, the photographs were admissible to aid the medical examiner in describing the cause and manner of death. [Cits.]
Jackson v. State, 272 Ga. 429, 430 (2) (531 SE2d 700) (2000).
4. The trial court rejected Folson’s request to charge on the offense of misdemeanor involuntary manslaughter. Folson argues on appeal that rejection of his requested instruction was reversible error because his testimony regarding his attempt to perform CPR supplied the factual predicate for a finding that he caused the child’s death “without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm,” (
“A charge on involuntary manslaughter is not warranted even if it is the sole defense if the evidence does not support the charge.” Hayes v. State, 261 Ga. 439, 443 (6) (a) (405 SE2d 660) (1991). The evidence to which Folson points in asserting his right to a charge on involuntary manslaughter was his own testimony that he struck Canashus on the back to clear his airway and pressed the child’s abdomen in an effort to perform CPR. If the jury believed Folson’s testimony, it could have found that the child’s injuries were inflicted by accident, and that no crime was committed (see Hayes v. State, 268 Ga. 809 (9) (493 SE2d 169) (1997)), but his testimony did not suggest, and he has not pointed out on appeal, and our review of the record hаs not revealed any evidence of an unlawful manner in which his lawful act of attempting to resuscitate the child was performed. Indeed, had Folson’s alleged efforts to perform CPR been shown to have become so violent as to produce the injuries described by the medical examiner, his actions would have constituted the offense of reckless conduct and he would not have been entitled to a charge on lawful act-unlawful manner involuntary manslaughter. Paul v. State, 274 Ga. 601 (3) (a) (555 SE2d 716) (2001). The evidence did not support the giving of an instruction on involuntary manslaughter and we see no error in the trial court’s rejection of the requested instruction. Hayes v. State, 261 Ga. 439, supra.
5. In his last enumeration of error, Folson complains of the trial court’s charge on the offense of cruelty to children, objecting that the charge included as elements of the offense the infliction of both
physical and mental pain when the evidence was tailored only to include physical abuse. In
Kennedy v. State,
supra at 590, this Court held that a jury could apply generally-accepted societal norms to conclude whether a defendant caused a child cruel or excessive physical pain. That principle was
Judgment affirmed.
All the Justices concur.
Notes
The crime was committed on December 31,2000, and Folson was indicted on Fеbruary 5, 2001, for malice murder, felony murder (cruelty to children), and cruelty to children. After a one-day trial on October 31, 2001, a jury acquitted Folson of malice murder and convicted him of felony murder and cruelty to a child. The trial court sentenced Folson to life imprisonment for felony murder, the underlying felony having merged by operation of law. Folson’s motion for new trial, filed November 15, 2001, was denied by an order filed April 18, 2003. Pursuant to a notice of appeal filed that same day, the appeal was docketed in this Court on April 6,2004, and was submitted for decision on the briefs.