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Docket Number

S00A2062.

Advocates

Billy M. Grantham, Attorney for Appellant: J. Brown Moseley, D.A., Thurbert E. Baker, A.G., Ruth Mary Bebko, A.A.G., Paula K. Smith, Senior A.A.G., Charles M. Stines, A.D.A., Attorneys for Appellee.

Judges

Robert Benham

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Smart Summary

CARTER v. THE STATE — Supreme Court of Georgia (Dec. 22, 2001)

Factual and Procedural Background

Cristle Cook, a 16-month-old child who lived with her mother and Lloyd Christopher Carter, was found not breathing when her mother returned from the laundromat. Carter had been left in charge of Cristle and another child that evening. At the emergency room, bruises estimated to be two or three hours old were observed on Cristle's head. She was transported to a larger hospital where she died. The cause of death was a subdural hematoma attributed to trauma; there was also a wound on the child's head and retinal hemorrhages. Medical testimony described injuries consistent with shaking or blunt force trauma (or both) and inconsistent with a fall or with any bleeding disorder.

Carter gave a statement to police admitting he may have inadvertently struck the child with his hand while attempting to "fan" her; at trial he testified that he did not strike her but may have touched her while fanning. Other medical testimony established that the child had no blood disorders.

The crimes were committed on June 24, 1994. Carter was indicted on September 19, 1994. A jury trial was held December 12–13, 1994, resulting in convictions on one count of felony murder (for which Carter was sentenced to life imprisonment) and one count of cruelty to a child (the cruelty conviction was vacated by operation of law as the underlying felony for felony murder). Carter filed a motion for new trial on January 13, 1995; he filed a notice of appeal on October 8, 1998; the motion for new trial was denied by order filed August 29, 2000; the case was docketed in this Court on September 5, 2000, and submitted on the briefs. The Supreme Court's decision was filed January 22, 2001.

Legal Issues Presented

Whether the circumstantial evidence at trial was sufficient to authorize a rational trier of fact to find Carter guilty of felony murder beyond a reasonable doubt.
Whether Carter was entitled to a new trial based on newly discovered evidence (a television program concerning a blood disorder that can mimic signs of child abuse).
Whether an alleged improper communication by the trial court to the jury (outside the presence of the parties) required reversal of Carter's conviction.

Arguments of the Parties

Appellant's (Carter's) Arguments

Carter asserted that newly discovered evidence (a television program about a blood disorder that can mimic child abuse) warranted a new trial.
Carter contended that an improper communication by the trial court to the jurors during deliberations—specifically a statement that a count on which the jury had not reached agreement would not be tried again—required reversal of his conviction.

Appellee's (State's) Arguments

The State argued that Carter's failure to object to the trial court's communication before the return of the verdict constituted waiver of the objection, citing Edwards v. State.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia	The standard for reviewing sufficiency of the evidence (whether a rational trier of fact could find guilt beyond a reasonable doubt).	The Court applied this standard to conclude the circumstantial evidence was sufficient to support Carter's felony murder conviction.
Preddie v. State	Applied in the context of sufficiency review (cited alongside Jackson).	Cited by the Court in affirming that the evidence authorized a rational trier of fact to find Carter guilty beyond a reasonable doubt.
Timberlake v. State	The factors governing motions for new trial based on newly discovered evidence.	The Court relied on the Timberlake factors (as set out in the opinion) in evaluating Carter's motion for a new trial based on the television program evidence.
Young v. State	Restatement/application of the Timberlake requirements for newly discovered evidence.	The Court invoked Young to list the requirements and then applied them, finding Carter's proffer failed the materiality requirement.
Hanifa v. State	The principle that a defendant has a right to be present at all proceedings and that extrajudicial communications between judge and jury are presumptively prejudicial; communications should be in open court and discouraged otherwise.	The Court relied on Hanifa to explain that a colloquy between judge and jury outside the presence of defendant and counsel is part of the proceedings to which the defendant is entitled and that unauthorized communications are presumptively prejudicial.
Logan v. State	Illustrative precedent on communications to the jury and coercion (cited by comparison).	The Court compared the coercive effect of the trial court's comment in this case to principles discussed in Logan.
Howard v. State	Situation where a jury was told essentially "It's with you, and that's all there is to it," held equivalent to requiring a verdict and resulted in reversal.	The Court applied the same principle to conclude the trial court's statement that a count would not be tried again was inherently coercive and required reversal.
Edwards v. State	Cited by the State for the proposition that failure to object before verdict may constitute waiver.	The Court noted the State's reliance on Edwards but rejected the waiver argument because the record did not show Carter knew of the colloquy.
Pennie v. State	Authority for the proposition that an error is not waived when the record does not show the defendant knew of the unauthorized communication.	The Court cited Pennie to support its conclusion that Carter had not waived the objection because the record did not show he knew of the trial court's conversation with the jury.
McLeod v. State	The opinion does not state the rule or principle cited for this case.	The case is cited in a footnote within the procedural history; the opinion does not explain its specific application.
Livingston v. State	The opinion does not state the rule or principle cited for this case.	The case is cited in a footnote within the procedural history; the opinion does not explain its specific application.

Court's Reasoning and Analysis

The Court addressed three principal matters in sequence:

Sufficiency of the evidence — The Court held that although the evidence was circumstantial, it met the Jackson v. Virginia standard for sufficiency. Medical testimony established that Cristle Cook died from traumatic subdural hematoma, with associated head wounds and retinal hemorrhages, injuries inconsistent with a fall or a bleeding disorder. Carter's statement and trial testimony were considered, and the Court concluded a rational trier of fact could find Carter guilty of felony murder beyond a reasonable doubt.
Newly discovered evidence — The Court applied the Timberlake/Young framework for motions seeking a new trial based on newly discovered evidence. The Court concluded Carter's proffer (a television program about a blood disorder that can mimic child abuse) failed the third Timberlake/Young requirement — materiality likely to produce a different verdict — because nothing in the proffer connected the disorder discussed in the program to the victim in this case. Consequently, the trial court did not err in denying a new trial on that basis.
Improper communication with the jury — The record showed the deliberating jury sent a written question (contents not in the record). The trial court went to the jury room; although the parties' consent is not reflected in the record, the transcript of the colloquy shows the court told jurors that a count on which they had not reached agreement would not be tried again. The Court relied on Hanifa to explain that defendants and counsel are entitled to be present for any colloquy between the trial judge and the jury and that communications outside open court are presumptively prejudicial. The Court found the trial court's statement inherently coercive (suggesting the defendant might go free on that count if not convicted by the jury), likening it to the coercive statement in Howard. Because the nature of the communication did not show it could not have been prejudicial, the presumption of prejudice was not overcome. The State's waiver argument (that Carter failed to object before verdict) was rejected because the record did not show Carter knew of the unauthorized colloquy, citing Pennie. On this basis the Court concluded a new trial was required.

Holding and Implications

Holding: The Court reversed the judgment and held that Carter is entitled to a new trial.

Implications: The direct effect of the decision is reversal of Carter's felony murder conviction and the ordering of a new trial on the ground that the trial court's unauthorized communication with the jury was presumptively prejudicial and that the presumption was not overcome. The opinion affirms governing standards for sufficiency review and for evaluating newly discovered evidence and jury communications, but it does not announce a new legal rule beyond applying those standards to the facts of this case.

Disposition: Judgment reversed; all the Justices concur. Decision filed January 22, 2001; reconsideration denied February 16, 2001.

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CARTER v. THE STATE

BENHAM, Chief Justice.

This appeal is from Lloyd Christpher Carter's convictions for felony murder and cruelty to a child. Cristle Cook, the 16-month-old daughter of the woman with whom Carter lived, was not breathing when her mother came home from the laundromat. Cristle and another child had been left in Carter's care that evening. At the emergency room, bruises no more than two or three hours old were observed on her head. After measures to stabilize her were undertaken, Cristle was transported by ambulance to a larger hospital where she died. The cause of her death was a subdural hematoma which, according to a physician-witness, was the result of trauma. In addition, there was a wound on the child's head and retinal hemorrhages. The physician testified that the injuries were not consistent with a fall and that the child did not exhibit any blood clotting problems. A pathologist testified that the child suffered shaking or blunt force trauma or a combination of the two, and that her injuries were not consistent with any disease or blood disorder. In a statement to police, Carter admitted that he may have inadvertently struck the child with his hand while trying to "fan" her. At trial, he testified that he did not strike her, but may have touched her while fanning her. Other medical testimony established that the child had no blood disorders.

The crimes were committed on June 24, 1994, and Carter was indicted for two counts of felony murder and two counts of cruelty to a child on September 19, 1994. A jury trial on December 12-13, 1994, resulted in verdicts of guilty on one count each of felony murder, for which Carter was sentenced to life imprisonment, and cruelty to a child, which was vacated by operation of law as the underlying felony for felony murder. Carter filed a motion for new trial on January 13, 1995. He filed a notice of appeal on October 8, 1998, and his motion for new trial was denied by an order filed August 29, 2000. See McLeod v. State, 271 Ga. 455 (fn. 1) ( 520 S.E.2d 692) (1999); Livingston v. State, 221 Ga. App. 563 (1) ( 472 S.E.2d 317) (1996). The case was docketed in this Court on September 5, 2000, and was submitted for decision on the briefs.

1. The evidence adduced at trial, though circumstantial, was sufficient to authorize a rational trier of fact to find Carter guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Preddie v. State, 266 Ga. 576 (1) ( 468 S.E.2d 746) (1996).

2. In his second enumeration of error, Carter contends he was entitled to a new trial based on evidence discovered after his conviction. The evidence which Carter contends entitles him to a new trial was a television show which concerned a blood disorder that sometimes produces symptoms mimicking those of child abuse.

As set forth in Timberlake [ v. State, 246 Ga. 488 (1) ( 271 S.E.2d 792) (1980)], on motion for a new trial based on newly discovered evidence, it is incumbent that the movant satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. Failure to show one requirement is sufficient to deny a motion for new trial.

Young v. State, 269 Ga. 490, 492 (fn. 5) ( 500 S.E.2d 583) (1998).

Carter's proffered newly-discovered evidence fails to satisfy the third requirement set out in Young: it was not shown to be so material that it would probably produce a different result. Nothing in the proffered evidence suggested that the victim in this case suffered from the disorder discussed in the television show. Without such a connection to the victim, the evidence was not material to the issues in this case. Accordingly, the trial court did not err in denying Carter's motion for new trial on that ground.

3. Finally, Carter contends that an improper communication by the trial court to the jury requires reversal of his conviction. The record is silent regarding whether the parties consented to the trial court talking to the jury in the absence of the parties. Carter states in his brief that the deliberating jury sent out a written question, the contents of which are not in the record, and that the trial court went to the jury room with the agreement of the parties to tell the jury to continue deliberation. However, the transcript of the ensuing conversation between the trial court and the jurors shows that the trial court went outside the bounds of that agreement. When asked whether a count of the indictment on which the jury had not reached agreement would be tried again if they did not reach a verdict, the trial court said that it would not be tried again.

This Court addressed this issue of trial courts communicating with juries in Hanifa v. State, 269 Ga. 797 (6) ( 505 S.E.2d 731) (1998):

Within the Georgia constitutional right to the courts is a criminal defendant's "right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court." A colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present. "Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial." We state again: all communications with the jury are to be discouraged except in open court with all persons present. [Footnotes and citations omitted.]

The character of the communication in the present case does not show that it could not have been prejudicial to Carter. On the contrary, telling the jurors that a defendant will not be tried again on a specific count if this jury does not reach a verdict is inherently coercive, suggesting as it does that the defendant will go free if not convicted by this jury. CompareLogan v. State, 266 Ga. 566 (2) ( 468 S.E.2d 755) (1986). In Howard v. State, 218 Ga. App. 346 (1) ( 461 S.E.2d 274) (1995), where the jury was told, "[i]t's with you, and that's all there is to it," the comment was held to be equivalent to requiring the jury to reach a verdict one way or another, and the conviction was reversed. The same principle must be applied here. Since the trial court's communication to the jury in this case could have been prejudicial to Carter, the presumption of prejudice mentioned in Hanifa, supra, has not been overcome.

Citing Edwards v. State, 188 Ga. App. 667 (9) ( 374 S.E.2d 97) (1988), the State suggests that since Carter did not object to the trial court's communication prior to the return of the verdict, he cannot now object. However, the record does not show that Carter knew of the trial court's unauthorized colloquy with the jury, so the error was not waived. Pennie v. State, 271 Ga. 419 ( 520 S.E.2d 448) (1999).

Because the content of the trial court's conversation with the jury was not such as to overcome the presumption of error which arose from the fact of the conversation, Carter is entitled to a new trial. Howard v. State, supra. Judgment reversed. All the Justices concur.

DECIDED JANUARY 22, 2001 — RECONSIDERATION DENIED FEBRUARY 16, 2001.

CARTER v. STATE