Glaze v. State

402 S.E.2d 729, 261 Ga. 171, 1991 Ga. LEXIS 182
CourtSupreme Court of Georgia
DecidedApril 11, 1991
DocketS91A0074
StatusPublished
Cited by1 cases

This text of 402 S.E.2d 729 (Glaze v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glaze v. State, 402 S.E.2d 729, 261 Ga. 171, 1991 Ga. LEXIS 182 (Ga. 1991).

Opinion

Bell, Justice.

Herbert Earl Glaze appeals from his convictions of felony murder (with cruelty to children as the underlying felony) and of cruelty to children in connection with the death of Clifton Lamar Burton.1 We affirm the conviction of felony murder and vacate the conviction of cruelty to children.

[172]*1721. Appellant argues the evidence was insufficient to support the conviction of felony murder, which was based on the underlying felony of cruelty to children.

There was evidence appellant beat the victim, who was three years old, with multiple blows to the body; that the beating caused the victim’s brain to swell; and that the swelling caused the victim’s death. We find the evidence authorized a rational trier of fact to find appellant guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. “[Glaze] may not be convicted of felony murder and also be convicted of the underlying felony (cruelty to children) which was alleged by the indictment to support the conviction of felony murder. [Cits.] The conviction for cruelty to children is therefore vacated.” [Zackery v. State, 257 Ga. 442, 443 (2) (360 SE2d 269) (1987).]

3. Appellant contends the court erred by failing to charge the jury on accident as a defense, but we find no error.

When considered in light of testimony by the victim’s mother and the medical examiner who performed the autopsy on the victim, appellant’s testimony did not require instructing the jury on accident.

Appellant lived with the victim’s mother, who worked days at a Union 76 gas station. Appellant worked the night shift at the same Union 76, and cared for the victim during the day while the mother worked. The mother testified that at 7:00 a.m. on August 30, 1989, she took the victim to the Union 76, where appellant took the victim and went home. She said that she had not disciplined the victim that morning or the previous day, and that the victim was in good health when she turned him over to appellant. Appellant later telephoned her and told her they were home and were going to go over the victim’s ABCs and counting. Around 9:00 a.m. appellant telephoned her and told her that the victim had stopped breathing.

Dr. Dunton of the Fulton County Medical Examiner’s Office performed the autopsy on the victim. He testified that during his external examination he made the following observations:

[O]n the back portions of the arms, the back, buttocks, the back portions of the legs, . . . there were areas of dark red irregular outlines, discoloration, on all of those body surfaces.
The injuries on the child’s body would roughly have covered the back sides of his arms from this level (indicating) almost all the way down to the wrists, on both sides, down this way (indicating).
[173]*173He had some discolorations that were longer than they were wide, that is little rectangular marks here, here, here (indicating), and some that were also running this way (indicating).
There were some across the buttocks in a similar fashion, more this way (indicating) and then all along the backs of the thighs (indicating), sparing the little area right here behind the knees and down on both calves.
They were very irregular, confluent if you want to think of it, areas sort of running together. All of these areas were dark red.

Dr. Dunton said that he then made incisions in the body to determine “whether the discoloration extended deeper into the tissues [than the surface of the skin], which would represent bruises,” as opposed to lividity from the pooling of blood after death. The incisions revealed that

[t]hese [the surface discolorations] all represented bruises. There was bleeding in the tissues beneath the skin, . . . between the surface of the skin and the underlying muscles in the layer of fat and other tissues. Bleeding, fresh bleeding was present in all of those areas, on the backs of the arms, on the back of the buttocks, on the backs of the legs.

According to Dr. Dunton, the victim had “severe bruises” that “were on the backs of the arms, on the back of the buttocks, on the backs of the legs.” He said that in general “it would take a significant blow to produce the kind of bruising that this child had in the areas that he had.”

Dr. Dunton later testified that he had seen no evidence of bruises that were older than a day, and in particular that the bruises were “[a]t the very outside limit, no more than a day, but likely not that old, probably a matter of hours.”

When asked whether the force inflicted on the victim was consistent with a “spanking,” Dr. Dunton testified “[t]hat’s not the term I would use ... I would use the term beating.”

Appellant testified that after he and the victim arrived home at 7:15 a.m. on August 30, he “disciplined” the victim for inadequate performance during counting exercises. According to appellant, during a 15-minute period he “spanked” him with a belt, striking him 11 or 12 times, but the victim did not act as if he was in distress or pain after the beating. Appellant asserted he had not intended to kill or be cruel to the victim.

[174]*174Appellant argues that his testimony was sufficient to create an issue whether he killed the victim by accident, and that the trial court therefore erred by refusing to grant his request to instruct the jury on accident.

However, although appellant testified that he “spanked” the victim without any intent to kill or be cruel, his testimony was wholly inconsistent with the evidence that the victim was in good health within approximately two hours of his fatal injuries; that the victim’s back, buttocks, and the backs of his arms and legs were covered with severe bruises that generally would require significant blows to inflict; that the bruises were no more than a day old and were probably just hours old; and that the child had been “beaten” rather than “spanked.”

“The evidence does not show accident or misfortune and it was not error to fail to charge these principles of law to the jury in this case.” [Cits.] The spanking which appellant admitted giving the child simply could not have caused the injuries that led to its death. [Holt v. State, 247 Ga. 648, 650 (2) (278 SE2d 390) (1981).]

4. The victim’s mother was jointly indicted with appellant, but at appellant’s request her trial was severed from his trial. She had not yet been tried when appellant was tried,2 and testified as a witness for the state. Appellant contends that his cross-examination of the mother was improperly limited during the following colloquy:

Q. . . . And as a result of [a detective’s] questioning, and I assume his further investigation, is that when [appellant] was charged with the murder of [the victim]?
A. Yes.
Q. Were you not also charged yourself with the same thing at that time?
A. No.
Q. You were never indicted for murder?

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Bluebook (online)
402 S.E.2d 729, 261 Ga. 171, 1991 Ga. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glaze-v-state-ga-1991.