*1 Cooper, Bar, Assistant General Counsel State for State Bar of Georgia. Spence, Jr.,
James E. for Powell.
S01A0404. THE LONDON v. STATE. Hunstein, Justice. Keith London murder, was convicted of malice two counts of fel- ony cruelty arising murder, and to children out of the death of two- year-old appeals Briana Cansler. He from the denial of his amended Finding error, motion for new trial.1 no reversible we affirm. 1. The evidence adduced at trial authorized the to find that three-year-old the home with ing sister, victim and her Cansler, were at appellant, boyfriend, began their mother’s when he abus- appellant the victim. observed hit the victim and throw appellant Afterwards, her down the staircase. mother and asked called she return home from work her daughter injured. had been When she arrived at the house the appellant sitting holding mother found on the couch the victim. The gasping victim was for air and her head was swollen. The victim died only eyewitness from blunt head trauma. revealed to her mother while she ing attack, sitting emergency wait- appellant room that hit had the victim and knocked her down the harming reported police stairs. denied the child and that mony However, she had fallen down the stairs. extensive trial testi- personnel
from medical established that the victim had been injuries abused such to the fall and that the fall itself could cause magnitude only if the victim had been thrown down the stairs. including The child, numerous doctors who examined the the medical syn- examiner, testified that the victim suffered from shaken infant syndrome. multiple drome and battered child She had bruises over body, including much of arms, side, chest, head, ears, her left and 14,1995. County The homicide occurred on November London was indicted in on Cobb (with 16, murder, February charges felony underlying 1996 on two counts of murder one felony being aggravated cruelty children), cruelty assault other to children. 27, charges August He was found imprisonment on all on 1996 and sentenced to life years cruelty for the murder and a consecutive to children. The trial court vacated felony 479) (1993). required by murder convictions as law. Malcolm v. 9,1996, 22,1998, His motion for new trial was filed October amended June part September 15,1999 remaining adversely denied in with the issue decided to London January appeal February appeal A notice of was filed 2000. The was dock argu eted this Court on December 2000 and was submitted for decision without oral ment. anus. The doctors testified that from the circular bruises on her arms, hard; it if someone had appeared grabbed very blow, her anus was bruising around consistent with a direct trauma pointed such as a hard kick with a shoe or a broom stick having rectum. The victim also suffered a pushed into the skull fracture on head, bruising the back of her to her brain that she had indicating *2 by something, been struck around the hemorrhaging thyroid gland. eyes Blood behind revealed that the victim had been shaken and forth and the severe bruising back of her ears indicated that someone had her around flung pinching jury while ears. The was also authorized to conclude that this was not the first the time victim had been left in care and appellant’s suffered a serious injury. earlier, The State adduced evidence which showed that six months May 1995, the victim hospitalized for a head which injury appel lant claimed she suffered when she fell off the Of top a bunk bed and then had three fall bicycles top of her. the Again, although child suffered severe call injuries, appellant failed to assis emergency tance. The evidence also demonstrated that claim of how appellant’s occurred was deemed injury by medical to professionals wholly be inconsistent with the gravity and extent of the injuries received. The medical testimony regarding prior incident also showed that previous injury Likewise, was consistent with child abuse. medical testimony established that two weeks before her death the victim suffered a fracture to her arm which had been left untreated. Appel lant contends the evidence was insufficient support convictions because the evidence was entirely circumstantial. “To warrant a con evidence, viction on circumstantial the proved facts shall. . . exclude every other hypothesis save that guilt of the of the accused.” OCGA Questions 24-4-6. as to § the reasonableness of are hypotheses generally to be decided by which heard the evidence. Where the evidence, authorized to find that though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, finding will not be disturbed unless the verdict of is insupportable as a matter of law. Rob (1) State, bins v. We conclude that the evidence was sufficient to authorize a rational trier of fact to find appellant guilty crimes charged beyond a reasonable doubt. Jackson v. 443 U. Virginia, S. 307
2. In error, his second enumeration of appellant contends that the trial court erred in denying the motion for mistrial that he made after the admission of certain testimony Dunton, from Julie a state’s conclude, however, witness. We the trial court did not abuse its discretion in determining a curative instruction was adequate preserve appellant’s trial, to a fair right and that the grant of a mis- trial was not essential order to preserve that right. See Scruggs State, contends that the trial court erred in admitting Cansler, of Brittany who years was four old at the time
of trial. More specifically, appellant that, contends because of her age and immaturity, Brittany did not have sufficient reasoning power to answer questions intelligently. At however, appellant chal- lenged Brittany’s competency on the ground that she was incompe- tent as a matter of law because of her infancy. Although a child is subject to a competency challenge on the ground that she does not have the use reason, 24-9-5, see OCGA State, Norton v. 24-9-7; §§ Sizemore v. (1993); Ga. 214 a child is not as a incompetent matter of law her infancy. Accordingly, conclude that the trial court did not err in denying motion appellant’s to prohibit Brittany from testifying ground of her infancy.
4. Appellant contends that the trial court erred by admitting hearsay statements made by appellant had abused the victim and then thrown her down the stairs. The trial court admitted Brittany’s hearsay statements under 24-3-16, OCGA the child hear- § say statute. appellant’s trial, After Woodard v. we held in *3 (496 896) 317, Ga. SE2d the child hearsay stat- ute was unconstitutional to the extent it permitted the introduction into hearsay evidence of statements made aby child under the age 14 describing physical or sexual abuse inflicted on another person. Thereafter, in denying appellant’s amended motion for new the trial court ruled that Brittany’s statements were nevertheless admissible as prior inconsistent statements under the rationale of (286 717) (1982). State, Gibbons v. SE2d (a) Appellant’s contention that statements were hearsay not admissible as prior inconsistent was not cross-examination, available for is without merit inasmuch as our review of the record that Brittany shows answered numerous questions regarding herself, home, her family, her and her pet, general crime, answered several questions testifying, for she, example, and the victim appellant, upstairs were when the victim crime, died. As for more specific questions regarding the Brit- tany answered times many anything that she did not see or happen answering evaded the questions. Although Brittany point did at one testify that she did see what happened, any she never testified as to surrounding details her sister’s death. in a response to question from the as to whether she prosecutor “okay,” Brittany was testified that she wanted “to down. get That’s all want to do.”
(b) As for to cross-examine it appellant’s right has been held that the Sixth Amendment “is satisfied if a defendant is given ‘(h)is opportunity forgetful bias, cross-examine a witness about
94 attentiveness, very his lack of care and . . . and even . . . the fact ” (470 State, 723, 725 memory.’ that he has a bad Brown v. 652) (1996), Owens, v. 484 U. S. 559 quoting SE2d United States (108 addition, the United States require Court Owens has held that the constitutional Supreme ments of the confrontation clause are satisfied when the hearsay declarant at trial and available for cross-examination. Id. standards, the foregoing at 558. Under we conclude that Gibbons,2 for cross-examination within the meaning available appellant question regarding was free to at trial the reasons confusion, for her and evasion. forgetfulness, (c) also contends that a proper foundation was not laid statements under if the admitting prior Gibbons. Even first statement made to her mother was not Gibbons, admissible as inconsistent under it was gestae hearsay admissible under the res rule. See exception State, v. Andrews Ga. 223 SE2d Although cannot conclude that the numerous other statements would be State, under that exception, admissible see Walthour v. (to (1998) under gestae be admissible the res
exception, declarant’s statement must be the result of a sponta- reaction, neous and not the result of reflective thought processes), order establish reversible error must show that had appellant similar accounts her sister’s regarding injuries not been disclosed to the there a existed probability result of the trial would have Burgeson State, been different. v. 102, 104 Ga. Even assuming, arguendo, the statements should not have been admitted due to the lack of a laid, foundation proper being we are led to conclude that based statement, mother’s the medical the similar transac- evidence, tion there is no reasonable probability disclosure additional, of this cumulative testimony affected the result of the jury’s deliberations as it was harmless in light of the overwhelming evidence of appellant’s guilt. generally See Laney (1999); Felder v. 769) (1996) (under “highly probable test” a reversal is not *4 if the required guilt evidence of overwhelming there is no reasonable probability that the verdict of the would have been error). different in the absence of this When the testimony issue is reviewed in light strength above, of the evidence outlined we find that there is no possibility would 2 Although appellant testimony does not contend that in-court was not incon sistent with her note the record shows that her at trial did contradict statements.
95 returned a different verdict had the trial court not allowed the testi- mony. Nor does it implicate any issue of constitutional dimension as the foundation requirement witness, addresses fairness to a not a defendant’s right of confrontation. See Duckworth v. 268 Ga. 201) (1997). 566 Thus, based upon our weighing error “in the context of case,” the entire Johnson v. 61 (1976), we conclude that because the challenged testimony did not contribute to the judgment, no reversible error exists.
5. Finally, although appellant
contends that his trial counsel
reasons,
ineffective for two
we conclude that
the record shows
the performance of appellant’s counsel was not deficient under
the standards
enunciated
Strickland v. Washington,
SEARS, Presiding Justice, dissenting. I cannot agree with the majority that the trial court’s error in admitting multiple hearsay statements by Brittany Cansler was harmless. These out-of-court pervaded trial, and were not cumulative of the one hearsay statement the child made to her mother and that the majority properly finds was admissible. although majority applies the nonconstitutional harm State, less error standard of Johnson v. even though the error that occurred at trial was of constitutional dimension, I conclude that error was not harmless either under the nonconstitutional or consti tutional harmless error standard. I Accordingly, dissent.
To begin, will address the appropriate standard that should be in this applied case for whether determining the error was harmless. At the court admitted numerous out-of-court Brittany Cansler under our Statute.3 Hearsay Child 5After London’s trial, however, this Court held in Woodard v. State5 that admitting a child witness’s hearsay statements into evidence under OCGA 24-3- § 16 violated a right defendant’s to equal protection.6 Thus, the trial court’s decision to admit Brittany’s statements under 24-3-16 vio- § lated London’s right to equal protection.
The majority properly
attempts
determine whether
the trial
court’s decision to admit
the hearsay statements was nevertheless
by
correct
analyzing whether
the statements were admissible
§
OCGA 24-3-16.
6
In addition to Earnest’s testimony, State also introduced the George Washington, of a child social worker protective County Department Family with the Cobb and Children Services. testified that he and a Washington police officer conducted a video- taped days interview with several after the crime. The was and the videotape played provided with a interview, 13-page copy transcript During interview. Brittany demonstrated where London Briana in the face punched quoting Jones v. 265 Ga. Moore 674, 677 8 Jones, Moore, quoting at at pointed to a on her face to show where blood spot appeared Briana’s face. also stated that London sent upstairs Briana but that he then came play, upstairs punched Briana, her, that he was throwing things and that he picked up right interview, before she fell. Later in the Brittany reiterated that at one in the point beating face, blood was out of Briana’s coming and she also stated that Briana fell down the stairs “real hard back- ward”; that trouble; London told her Briana was in and that London *6 also hit Brittany pulled her hair. Dunton, Julie who was Brittany’s foster mother for months,
several testified that Brittany stated that when Briana’s occurred, death London had sent Brittany and Briana upstairs to that play; London had a visitor and had told and Briana to be quiet; noise; that Briana made some that London came upstairs Briana, and hit causing wall; her to hit her head into a that London then stairs; threw Briana down the and that Briana lay at the bloody bottom of the stairs. Ms. Dunton also testified that Brit- tany frequently told her that she had nightmares about “a bloody baby at the bottom of the stairs.” According Dunton, to Ms. for sev- eral weeks after Brittany her, came to live with Brittany told the foregoing story everyone to she saw.
In addition to testifying Brittany’s about crime, of the many witnesses who interviewed Brittany, including above, the three witnesses discussed testified Brittany’s that to consistent, them were spontaneous, and therefore did not to appear be the result of any coaching.
Because seven witnesses other than mother testified them; about statements made because these state- ments were more detailed than the statement she made to her mother and merely statement; were not cumulative of that critical, these witnesses offered prejudicial testimony regarding the consistency statements; and because one of the state- ments was videotaped and thus had the potential significantly impact I cannot conclude that admitted improperly hearsay statements were harmless under the standard for determin- whether a ing constitutional error is harmless.9
Furthermore,
if I
even
were to
apply
nonconstitutional
standard,
harmless error
I could not conclude that
the error in this
case was harmless. As I
explained,
the statements
in question
permeated the
were highly prejudicial, and were not cumula
tive of other evidence. Because of the extraordinarily
prejudicial
statements,
nature of the hearsay
extraordinary
and because of the
9 Jones,
quantity to the verdict.10 the error did not contribute highly probable harmless error test “highly probable” regard, adopting Error What Makes Traynor, with from Johnson, approval we quoted effect that the Error to the Harmless, The Riddle of Harmless “ judi net worth of the greatly improve test ‘can “highly probable” either of affirmance it thus holds down excesses cial process reversal in court or of day assurance of a fair recklessly dampens of liti expense fair at the day calls for still another needlessly ”11In light first in court.’ awaiting day are still their gants who case, our affirmance involved in the severity of the error ” “ in court’ for day assurance of a fair today ‘recklessly dampens London. reasons, majority respectfully dissent foregoing
For the opinion. July 16,
Decided Wilson, appellant. Edwin J. for Norman, Head, Maria B. Attorney, H. District Dana J.
Patrick Hornbuckle, Golick, Attorneys, District Thurbert Bruce D. Assistant General, Smith, Baker, K. Senior Assistant Attor- Attorney E. Paula General, Philbrick, General, Attorney Tammie J. Assistant ney appellee. *7 v. THE STATE.
S01A0435. TODD Hines, Justice. murder in connection
Reginald Todd was convicted of malice
wife,
follow,
with the death of his
Loretta Todd. For the reasons
affirm.
10Johnson,