Appellant Vickie Faye Linson was charged with malice murder, felony murder, and cruelty to children, and, after a jury trial, she was found guilty of each offense. The trial court entered judgments of conviction on the guilty verdicts and imposed concurrent sentences of life imprisonment for malice murder and felony murder and 20 years for cruelty to children. A motion for new trial was denied, and Appellant appeals. *
1. Construed most strongly in support of the verdicts, the evidence shows thаt the victim of all crimes charged was Zi’Terrian Linson, who was Appellant’s 16-month-old son, was afraid of her, and had been physically abused by her on numerous occasions. Mario Johnson, who was Appellant’s co-defendant at trial, was her boyfriend and lived in the same apartment. On the morning of January 2, 2008, Appellant awakened Johnson and asked him to take care of the victim. She did not follow her usual practice of notifying her child care provider that the victim would not be coming that day. Although Appellant claimed that she heard the victim fall out of bed, she left for work, later telling friends that she heard him crying and knew that he was dying.
Johnson tried to console the victim, finally realized something was wrong, and sought help in а panicked and distraught manner. Emergency personnel found the victim cool to the touch and in a very grave condition. Appellant arrived and was unemotional, trying to obtain information from Johnson, and declining to ride in the ambulancе or with the police escort. Having learned that the victim’s body was cool, Appellant falsely reported a problem with the apartment’s heating unit. She later incorrectly told police that she did not have a phone numbеr for the child care provider. At the hospital, Johnson continued to be distraught and Appellant was unconcerned. Several witnesses testified to Appellant’s lack of grief and apparently insincere displays of grief when the viсtim’s death was announced and at the time of the funeral.
The forensic pathologist testified that the victim had extensive external and internal injuries which were caused by blunt force trauma, including a great amount of force to the abdomen, and were inconsistent with a single fall. The primary cause of death was internal bleeding from extensive lacerations to the liver. Relying on part of a statement by Johnson as to time and medical testimony presented by the defense, Appellant contends that the fatal injury was likely inflicted after she left home. However, according to the pathologist’s testimony and contrary to Appellant’s contention, the nature of the victim’s
Both Appellant and Johnson stipulated to the admissibility of polygraph examinations. The examination of Jоhnson was inconclusive as to whether he caused the injuries to the victim’s stomach, but Appellant’s examination strongly indicated deception in all of her relevant responses. See
Johnson v. State,
“£ “(Q)uestions as to reasonableness are gеnerally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate сourt will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Cit.)’ (Cit.) It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defеndant does not render the evidence insufficient. (Cit.)” [Cit.]
Phillips v. State,
2. Appellant urges that the trial court’s conduct, rulings, and comments compromised its neutrality and violated Appellant’s constitutional right to a fair, adversarial, and reliable trial, as codified in OCGA § 17-8-57.
The State argues that, because Appellant failed to object to any of the first three comments of which she complains, she has waived any error.
However, we have clarified that a violation of OCGA § 17-8-57 will always constitute “plain error,” meaning that the failure to object at trial will not waive the issue on appeal. [Cit.] On appeal, the issue is simply whether there was such a violation. If so, “(i)t is well established that th(e) statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. (Cits.)” [Cit.]
State v. Gardner,
OCGA § 17-8-57 mandates reversal of the judgment in a criminal case where the trial court expresses its opinion “as to what has or has not been proved or as to the guilt of the accused ....” “Such reversal is required, though, only when such comments are made in the presence of the jury. [Cit.]”
Johnson v. State,
Appellant also argues that the trial court erroneously expressed its opinion when it stated during preliminary instructions that the
State may not use all of its witnesses and “may think they don’t nеed them all,” and when Johnson’s videotaped statement was stopped and the trial court explained to the jury that the parties were trying to shorten it and not be repetitive. The first comment was made in the context of an explаnation of the procedures that would be followed for the receipt of evidence. The context of the second comment indicates that the trial court was explaining that the parties had agreed to present оnly part of the long videotape and were adhering to that agreement. Because these comments were limited to a clarification of procedures and did not address the credibility of witnesses or any fact at issue in
Appellant further complains that the trial court, after noting that the prosecutor indicated in closing argument that she did not believe that Johnson was guilty of the murder charges, instructed the jury to fill in not guilty оn both murder counts on Johnson’s verdict form. After defense counsel objected, the trial court instead instructed the jurors, over a renewed objection, that it was granting Johnson’s previously denied motion for directed verdict as to the murder сharges based upon the evidence. While the better practice would have been for the trial court not to have indicated the reason why the murder charges against Johnson were “no longer before the jury, we have previously determined that ‘remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.’ [Cit.]”
Holmes v. State,
3. Apрellant contends, and the State concedes, that she could not be convicted of both malice murder and felony murder. Indeed, Appellant “murdered a single victim and can be sentenced for either malice or felony murder but nоt both. [Cits.]”
Nix v. State,
4. Appellant further contends that cruelty to children, which was the predicate offense for felony murder, merges into that count. Because the felony murder conviction must be vacated by operation of OCGA § 16-1-7, cruelty to children does not merge into felony murder and may be vacated only if it merges into malice murder as a lesser included offense thereof.
Collum v. State,
[A] single act may constitute an offense which violates more than one statute, “ ‘and if each statute requires proof of an additional fact which the оther does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’(Cit.)” Drinkard v. Walker, supra at 215 ....
Waits v. State, supra.
Both malice murder and cruelty to children, as charged in the indictment, require a malicious intent. See OCGA §§ 16-5-1 (a), 16-5-70 (b). However, “ ‘(t)he fact that [such intent] supports an element in each crime does not warrant merging of the sentences where other mutually exclusive elements of the crimes remain.’ [Cit.]”
Drinkard v. Walker,
supra at 216. The other elemеnts of the two offenses must be compared. “Malice murder, but not [cruelty to children], requires proof that the defendant caused the death of another human being .... OCGA § 16-5-1 (a).”
Hutchins v. State,
284
Ga. 395, 396 (
Interestingly, this holding and portions of our analysis are not inconsistent with the following
pre-Drinkard
precedent involving the same crimes:
Jackson v. State,
Although we vacate the judgment of conviction and sentence for felony murder, the judgments of conviction and sentences for malice murder and cruelty to children are affirmed.
Judgments affirmed in part and vacated in part.
Notes
The crimes occurred on January 2, 2008, аnd the grand jury returned an indictment on February 5, 2008. The jury found Appellant guilty on March 6,2009 and, on that same day, the trial court entered the judgments of conviction and sentences. The motion for new trial was filed on March 26, 2009, amended on January 15, 2010, and denied on January 19, 2010. Appellant filed the notice of appeal on February 9, 2010. The case was docketed in this Court for the April 2010 term and submitted for decision on the briefs.