Kennedy v. StateKennedy v. State
Lead Opinion
Appellant Jason Steven Kennedy was convicted of the felony murder of Caitlyn Cawthon, the 19-month-old daughter of his girlfriend, with the underlying felony being cruelty to children.
Emergency medical personnel were called to a Columbia County apartment where they found the child without a pulse and not breathing. The child was transported to a hospital where efforts to resuscitate her failed and she was pronounced dead. An autopsy performed the next day revealed a lаrge subgaleal hematoma, an epidural hematoma, and subperiosteal bleeding. The medical examiner who performed the autopsy concluded the child’s death was the result of repeated blunt force trauma to the head that caused brain swelling and was an inflicted, non-accidental injury. The medical experts testified the lethal blows caused injury similar to that a child might receive in a fall from 10-30 feet or that which an unrestrained child would suffer in a car accident. The injuries were of such severity that the child would have been incapacitated and rendered incapable of meaningful activity. Based on statements of the child’s mother and appellant to medical personnel and law enforcement officers that the child was alert and active 55 minutes before she died, medical experts opined that the fatal blows were inflicted on the child within the last hour of her life. When the child’s mother left the child in apрellant’s care at 6:10 p.m. on July 11, the child was crying in her crib; when the child’s uncle and a friend arrived about 15 minutes later, they were told by appellant the child was sleeping. The uncle and friend left approximately 30 minutes after they arrived, but befоre exiting the parking lot, were chased down by appellant who reported the child was blue and not breathing.
1. Appellant contends the evidence was insufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt of felony murder based on the felony of cruelty to children because there was no evidence the child suffered pain or that appellant acted maliciously.
Aрpellant’s contention is premised on the belief that the State must prove the child suffered pain in addition to proving that appellant’s conduct caused pain. See Brewton v. State,
While two of the State’s three expert witnesses believed the child was renderеd unconscious by the blows, a third expert, the medical examiner who performed the autopsy, testified the child “may very well have been dazed and concussed.” However, jurors need not be presented with expert testimony that a particular action on the part of the defendant caused a child cruel or excessive physical pain since it is not beyond the ken of the average layperson presented with evidence that a toddler died after being subjected to multiple severe blows to the head by an adult to decide whether the perpetrator caused the child cruel or excessive physical pain. Evidence of the child’s age, the extent of her injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck is sufficient evidence from which a jury, applying generally-accepted societal norms, can conclude whether the defendant caused the child cruel or excessive physical pain. See London v. State,
(b) 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.’ ” (Emphasis in original.) Jones v. State,
2. Appellant contends the trial court improperly singled out his testimony when it charged the jury: “When Defendant testifies, he becomes the same as any other witness . . . you have a right to take into consideration the fact that he is interested in the
3. Appellant maintains the trial court committed reversible error when it defined felony murder as causing the death of another human being in the commission of a felony, irrespective of malice, but did not give a charge explaining the phrase “in commission of a felony” and the legal relationship that must exist between the felony and the death. See Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, § 2.03.30 (3rd ed. 2003). Appellant acknowledges he did not submit a written request that such a jury instruction bе given. See OCGA § 5-5-24 (b). The failure to give an unrequested charge is reversible error when “ ‘the omission is clearly harmful and erroneous as a matter of law in that [the charge as given] fails to provide the jury with the proper guidelines for determining guilt or innоcence.’ [Cit.]” Seay v. State,
4. Lastly, appellant sees error in the trial court’s grant of a motion in limine which prevented appellant from introducing into evidencе a letter appellant had written to the victim after her death and had placed in her casket at her funeral. In the letter, appellant expressed his love for the child and his belief she was now serving a higher and mightier purpose. The trial court granted the motion on the ground that the letter was “self-serving hearsay.” In Parker v. State,
Judgment affirmed.
Notes
The child died on July 12, 1996, and appellant was arrested on July 17, 1996. A grand jury in Columbia County returned a true bill of indictment charging appellant with malice murder and felony murder/cruelty to children on December 18, 1996. Trials in September 1997, January 1999, and June 1999, each ended in mistrial due to the jury’s inability to reach a verdict. This trial commenced on January 29, 2001, and concluded on February 2, 2001, when the jury returned its verdict acquitting him of malice murder and convicting him of felony murder, for which he was sentenced to life imprisonment on February 12, 2001. A motion for new trial, filed on February 19, 2001, and amеnded on April 25 and April 29, 2003, was denied by the trial court on May 12, 2003. A notice of appeal was timely filed on May 27, 2003, and the appeal was docketed in this Court on June 4. It was orally argued on September 9, 2003.
Concurrence Opinion
concurring.
This case, in which the defendant claimed that the 19-month-old victim was unconscious and thus incapable of feeling pain, points out an anomaly in Georgia’s cruelty to children statute. To obtain a conviction under OCGA § 16-5-70 (b), the State must prove that the defendant caused the child cruel or excessive physical or mental pain.
Compare OCGA § 19-7-5 (b) (3) (A) (fоr mandatory reporting purposes, “child abuse” is nonaccidental “physical injury or death inflicted upon a child by a parent or caretaker”); Ala. Code § 26-15-3 (felony child abuse committed when certain persons “torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child”); Fla. Stat. § 827.03 (felony child abuse defined as “intentional infliction of physical or mental injury upon a child”); N.C. Gen. Stat. § 14-318.4 (felony child abuse committed when one “intentionally inflicts any serious physical injury upon or to the child”); Tenn. Code Ann. § 39-15-402 (aggravated child abuse committed when act of abuse “results in serious bodily injury to the child”).