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Docket Number
Attorney(S)
  • Bernadette C. Crucilla, for appellant. Howard Z. Simms, District Attorney, Nancy S. Moskaly, Myra H. Kline, Assistant District Attorneys, for appellee.
Judges
  • Gary Blaylock Andrews
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Cites
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Bernadette C. Crucilla, for appellant. Howard Z. Simms, District Attorney, Nancy S. Moskaly, Myra H. Kline, Assistant District Attorneys, for appellee.
Judges
  • Gary Blaylock Andrews
See more information ...
Smart Summary

Bosnak v. The State, A03A0861 (Ct. App. Ga. Sept. 22, 2003)

Factual and Procedural Background

Angela Marie Bosnak was convicted of one count of cruelty to a child (her two‑month‑old son, R'M) in Bibb Superior Court before Judge Sizemore. She appealed the denial of her motion for new trial. The medical evidence at trial showed that on April 30, 2001 R'M was admitted to the emergency room with extreme malnourishment and dehydration (sunken eyeballs, delayed capillary refill, increased skin turgor, muscle wasting, no baby fat). Dr. Herrington testified the child had not been adequately fed within the last six to seven days and that, had the child been of normal birth weight, it would have taken about two weeks to lose the observed weight. Bosnak left the child in the care of her live‑in boyfriend, Harper, who observed feeding and bathing concerns and who later accompanied the child to seek medical attention. Bosnak testified she had fed R'M the morning of April 30 and disputed the emergency room appearance. The trial court convicted Bosnak; she appealed claiming, among other things, a Sixth Amendment confrontation violation arising from limits on cross‑examination of Harper.

Legal Issues Presented

  1. Whether the evidence was legally sufficient to support Bosnak's conviction for cruelty to a child under the Jackson v. Virginia standard.
  2. Whether the trial court violated Bosnak's Sixth Amendment right of confrontation by sustaining the State's objection and prohibiting questioning about a potential sentence Harper might have faced.

Arguments of the Parties

Appellant's Arguments

  • Bosnak argued the trial court violated her Sixth Amendment confrontation right by refusing to allow cross‑examination of Harper about a potential sentence he could have received but for cooperating (to show motive/bias).
  • Bosnak asserted factual defenses at trial, including that she had fed R'M the morning of April 30 and that he did not appear as in the emergency room photos.

Appellee's Arguments

  • The State objected to questioning about a potential sentence on the ground that Harper had never been charged in connection with R'M and no such potential sentence had been discussed.
  • The prosecution allowed questioning about whether Harper was charged, whether he thought he would be prosecuted, and whether his statement was given under coercion, but opposed inquiry into specific potential penalties.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) Standard for viewing evidence with all inferences in favor of the jury's verdict (legal sufficiency review). Used to conclude the evidence was legally sufficient to support the conviction.
Straker v. State, 259 Ga. App. 904 (578 S.E.2d 568) (2003) Cited in support of sufficiency of the evidence analysis. Cited alongside Jackson to affirm legal sufficiency.
Hodo v. State, 272 Ga. 272, 275 (528 S.E.2d 250) (2000) That inability to ask a witness to conjecture about possible punishment does not diminish an attempt to show witness motive and is not an abuse of discretion. Relied upon to hold the trial court did not abuse its discretion in limiting questions about potential sentence.
Watkins v. State, 276 Ga. 578, 581 (581 S.E.2d 23) (2003) Distinguishes situations where pending charges and the potential sentence are pertinent to examining a witness about favorable terms of a deal. Used to note there were no pending charges here and thus the nature of pending charges was not pertinent.
Brown v. State, 276 Ga. 192, 193 (576 S.E.2d 870) (2003) Authority on limits of cross‑examination and trial court discretion. Cited to support the conclusion that the trial court's limitation was within discretion.
State v. Vogleson, 275 Ga. 637, 638 (571 S.E.2d 752) (2002) Example where nature of pending charges was pertinent to examination of a witness about favorable terms vs. potential sentence. Distinguished from the present case because no pending charges existed here.
Owens v. State, 251 Ga. 313, 314 (305 S.E.2d 102) (1983) Authority regarding relevance of pending charges to witness examination. Distinguished for the same reason as Vogleson.
Beam v. State, 265 Ga. 853, 856 (463 S.E.2d 347) (1995) Cases where inquiry into prosecution and bias was cut off entirely. Distinguished: here cross‑examination into bias was not entirely cut off.
Byrd v. State, 262 Ga. 426, 427 (420 S.E.2d 748) (1992) Similar authority on limits to inquiry into witness bias when prosecution is involved. Distinguished for the same reason as Beam.
Hines v. State, 249 Ga. 257, 260 (290 S.E.2d 911) (1982) The trial court may exercise reasonable judgment in determining when the subject of cross‑examination is exhausted; cross‑examination is not absolute. Invoked to support the proposition that trial court discretion to limit questioning is permissible.
Watkins v. State, 264 Ga. 657, 660 (449 S.E.2d 834) (1994) No error where the trial court did not preclude all inquiry on a subject with respect to which appellant was entitled to reasonable cross‑examination. Used to reinforce that limiting some inquiry is not error where reasonable cross‑examination remains.
Lighten v. State, 259 Ga. App. 280, 285 (576 S.E.2d 658) (2003) Harmless‑error principle where the jury heard the contested information and was not directed to disregard it. Applied to conclude any error in limiting questioning would have been harmless because the jury heard the potential sentence range.

Court's Reasoning and Analysis

1. Sufficiency of the Evidence: Applying Jackson v. Virginia and related authority, the court reviewed the trial evidence with all inferences in favor of the jury verdict. The medical testimony and facts concerning R'M's extreme malnourishment and lack of adequate feeding supported the cruelty conviction. The court concluded the evidence was legally sufficient.

2. Confrontation/Cross‑Examination: The court recited the circumstances of Harper's interview (Miranda warnings, initial request for counsel, subsequent waiver and statement). On cross‑examination Harper denied that his change of mind was because police told him he faced five to twenty years. The State objected when defense counsel sought to pursue questioning about a potential sentence; the trial court prohibited inquiry into specific potential penalties but allowed questioning about whether Harper was charged, whether he thought he would be prosecuted, and whether his statement was given under coercion. The court held the trial court did not abuse its discretion in so limiting cross‑examination, relying on Hodo and other precedents that the inability to ask a witness to conjecture about punishment does not automatically show prejudice and that the confrontation right does not permit unlimited questioning. The court distinguished cases where pending charges or the nature of potential charges made sentencing discussion pertinent. Finally, because the jury had heard the potential sentence range and was not directed to disregard it, any error would have been harmless under Lighten.

Holding and Implications

Judgment affirmed.

Implications: The Court affirmed Bosnak's conviction and the denial of her motion for new trial. The decision upholds the trial court's discretionary limitation on cross‑examination regarding speculative punishment in the absence of pending charges; the opinion does not announce any new legal rule or broader precedent beyond the application of existing authority.

Show full summary ...

BOSNAK v. THE STATE.

ANDREWS, Presiding Judge.

Angela Marie Bosnak appeals from denial of her motion for new trial following her conviction of one count of cruelty to a child, her son R'M, contending that the trial court violated her federal Sixth Amendment right to confrontation by refusing to allow discussion of a potential sentence a witness could have received but for cooperating.

1. Viewed with all inferences in favor of the jury's verdict, Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence was that two-month-old R'M was admitted to the emergency room on April 30, 2001. The child presented with sunken eyeballs, delayed capillary refill, increased turgor of the skin, and poor reaction to his environment. Dr. Herrington diagnosed extreme malnourishment and dehydration and administered therapy. R'M had no baby fat and was suffering from muscle wasting. In Dr. Herrington's opinion, if R'M had been of normal birth weight, it would have taken about two weeks to lose this weight. Dr. Herrington also said the child had not been adequately fed within the last six or seven days and there was no indication of vomiting.

A bottle of sugar water was given to R'M, who "actually looked thirsty." After Dr. Herrington watched R'M consume the first bottle, he advised the nurses to continue to give him bottles as long as he would drink. It was one of the worst cases of malnutrition the doctor had ever seen.

Bosnak left for work every day and left R'M with her live-in boyfriend, Harper. He told Bosnak that occasionally R'M would not take food, but Bosnak told him not to worry because either R'M was full or did not want it right then. Harper also saw Bosnak feed R'M Gerber baby food with a spoon, which the doctor said was inappropriate for a two-month-old. Harper noticed when he was bathing R'M that his skin was sagging and told Bosnak to take the child to a doctor. Bosnak, however, refused because she did not want her other two children taken from her.

On April 30th, Harper showed R'M to his grandmother, Clark, who had taken care of and successfully fed R'M in the past. According to Clark, R'M would leave her home with a full belly and return skinny. On April 30, because of the child's condition, an ambulance was called. Bosnak became upset because she thought she would be in trouble and left, leaving Harper a note saying she was going to Florida and leaving everything to him.

Dr. Hutchings, R'M's family doctor, testified that R'M had no feeding problems and none had been mentioned to him.

Bosnak contended that she fed R'M the morning of April 30th and he was fine and did not look like he did in the photos taken that day at the emergency room.

The evidence was legally sufficient. Jackson, supra; Straker v. State, 259 Ga. App. 904 ( 578 S.E.2d 568) (2003).

2. Bosnak contends her Sixth Amendment right to confrontation was violated when the State's objection to her cross-examination of Harper was sustained.

The detective who interviewed Harper stated that, although Harper was not in custody, he was advised of his Miranda rights, as was the detective's standard procedure. While, initially, Harper said he wanted an attorney, as the detective was getting up to take him out of the interview, Harper changed his mind, signed the form, and was interviewed.

On cross-examination, Harper was asked why he changed his mind and stated

A. I changed my mind because I changed it. That's all. I changed it.
Q. It didn't have anything to do with the fact that the police told you that you were facing between five and twenty years in jail —

A. No.

Q. — for that charge?

A. No.

The State objected on the ground that Harper had never been charged in connection with R'M and no such potential sentence had been discussed. The trial court ruled that, while there could not be questions about the potential sentence, Harper could be questioned about whether he was charged, whether he thought he was going to be prosecuted, and whether he gave his statement under any coercion. No curative instructions were given to the jury, which was excused during the discussion of the objection, and questioning along the permitted lines continued.

The trial court did not abuse its discretion by so ruling. As stated in Hodo v. State, 272 Ga. 272, 275(4) ( 528 S.E.2d 250) (2000), "[t]he mere fact that [Bosnak] was unable to ask [Harper] to conjecture about possible punishment did not diminish [Bosnak's] attempt to show [Harper's] motive for testifying on behalf of the State, and did not amount to an abuse of the trial court's discretion. [Cit.]" See also Watkins v. State, 276 Ga. 578, 581(3) ( 581 S.E.2d 23) (2003); Brown v. State, 276 Ga. 192, 193(3) ( 576 S.E.2d 870) (2003).

First, as in Watkins, there were no pending charges here and this was not a situation where the nature of any pending charges was pertinent to an examination of a witness regarding his understanding of favorable terms contained in any deal, compared to the potential sentence available for the pending charges. Compare State v. Vogleson, 275 Ga. 637, 638(1) ( 571 S.E.2d 752) (2002); Owens v. State, 251 Ga. 313, 314(1) ( 305 S.E.2d 102) (1983). Nor did the trial court cut off all inquiry into the potential bias of Harper that would have come from any discussion of prosecution of him. Compare Beam v. State, 265 Ga. 853, 856(4) ( 463 S.E.2d 347) (1995); Byrd v. State, 262 Ga. 426, 427(2) ( 420 S.E.2d 748) (1992). With the exception of inquiry into the specific penalty for child cruelty, cross-examination of Harper was allowed to continue.

The right of cross-examination integral to the Sixth Amendment right of confrontation is not an absolute right that mandates unlimited questioning by the defense. Hines v. State, 249 Ga. 257, 260(2) ( 290 S.E.2d 911) (1982) (trial court "may exercise a reasonable judgment in determining when the subject is exhausted"); Watkins v. State, 264 Ga. 657, 660(1) ( 449 S.E.2d 834) (1994) (no error where "the trial court did not preclude all inquiry on a subject with respect to which appellant was entitled to a reasonable cross-examination. [Cits.]").

Also, as stated above, the jury did hear the potential sentence range and was not directed to disregard it. Therefore, even had there been error, it would have been harmless. See Lighten v. State, 259 Ga. App. 280, 285(4) ( 576 S.E.2d 658) (2003).

Judgment affirmed. Barnes and Adams, JJ., concur.

ANDREWS, Presiding Judge.

DECIDED SEPTEMBER 22, 2003.
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BOSNAK v. STATE
(Sep 22, 2003)