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Richardson-Bethea v. State

Supreme Court of Georgia

August 28, 2017


          Peterson, Justice.

         Cornelius Richardson-Bethea appeals her convictions for malice murder and abuse of a disabled adult arising out of the death of Susan Walter, a woman with an intellectual disability who lived in Appellant's home.[1] Appellant argues that she is entitled to a new trial because her trial counsel was ineffective for failing to call an expert witness to refute aspects of the medical examiner's testimony. Assuming without deciding that counsel's performance was deficient, we conclude that Appellant has not shown that counsel's failure to call an expert witness was so prejudicial as to require a new trial.

         The first trial resulted in a mistrial when the jury could not reach a verdict. The evidence at the May 2014 retrial showed as follows. Walter came to live with Appellant in September 2011, under an arrangement through Lutheran Services of Georgia. Walter had orthopedic problems in addition to her intellectual disability and had a history of falls even before she went to live with Appellant. Walter's primary care physician, Deanna Ross, testified that Walter used a walker and was so "wobbly" that on occasion she was unable even to stand on a scale to be weighed. Ross observed bruising consistent with a fall at several office visits. There also was evidence of prior seizures: Walter's brother testified that he had been told Walter had a seizure-like episode in 2000, although he had not witnessed it. Appellant also made contemporaneous reports of Walter having experienced a seizure in or around August 2012, and Walter confirmed for her Lutheran Services case manager, Jolita Rix, that the seizure had taken place.

         When police and EMTs responded to Appellant's 911 call in the early morning hours of March 2, 2013, they found Walter dead and cold to the touch, with bruises on much of her body. Appellant reported to those who responded that the prior afternoon she had found Walter on the floor, having suffered an apparent seizure, and that the bruising had come from Appellant picking up Walter at that time. Later that evening, Appellant said, she went to check on Walter and found that she had vomited while in bed. Appellant reported that she assisted Walter onto a chair or couch and changed her bed linens. Appellant said she checked on Walter at midnight and she was fine, but found her unconscious and not breathing when she checked on her again around 2 a.m.

         In a subsequent interview, [2] Appellant denied ever hitting or otherwise losing her temper with Walter. Appellant attributed the bruises on Walter's face and chin to Walter falling on her face when she had the seizure and said bruising on Walter's abdomen resulted from a fall on a bar in the bathtub. Asked at the first trial when the bathtub incident occurred, Appellant initially testified that she didn't recall, then said it occurred "[m]aybe about a week" before Walter's death.[3] Appellant on March 1 had informed Walter's brother, and Rix, the Lutheran Services case manager, that Walter had a seizure that day, and Rix testified that she spoke to Walter on the telephone about 10 minutes after she reportedly had the seizure and that Walter seemed "cheerful." But Appellant made no contemporaneous report or documentation of the alleged bathtub fall, despite generally being diligent in documenting Walter's falls, near falls, and minor injuries. Gail Goodridge, a state contractor who also monitored Walter's care, testified that she visited Walter "a day or two" before her death and did not observe any injuries. And instructors at the day program that Walter attended also testified that they had not observed Walter having injuries of the sort she had at her death.[4]

         Two of Walter's physicians testified that Walter's injuries were not consistent with a ground-level fall to the floor. And Kris Sperry, then the State's longtime chief medical examiner, testified that several of Walter's injuries could not have resulted from a fall. Sperry, who performed Walter's autopsy, described extensive bleeding on the undersurface of Walter's scalp and a massive bruise on her lower abdomen, saying the fat in that area had "liquefied because of the extensive blows that were sustained[.]" Sperry testified that the abdominal injury appeared to have been caused by "multiple blows" to the area, possibly 15 to 20 or more punches, kicks, or blows from an object, and that it could not have been caused by Walter falling onto the shower bar. Sperry testified that Walter died due to swelling of her brain, compounded by a subdural hemorrhage.[5] He said he thought her death was caused by repeated blows to the right side of her head by fists and/or feet. Sperry testified that most of the injuries Walter sustained, including the abdominal injury, occurred around the same time, that she most likely would have been unconscious (and thus unable to talk on the phone) by the time the last of the blows to the head was inflicted, and that the head injuries would have caused her death within 30 to 60 minutes.

         For the defense case, Appellant's trial counsel called several witnesses - her pastor, the daughter of a former client, her niece, and her sister - to testify to her good character, honesty, and the positive relationship she had with Walter. Rix and Goodridge also testified to a generally positive relationship between Walter and Appellant and that Walter had reported satisfaction with living with Appellant.

         Appellant was convicted of malice murder following the second trial. Appellant argued in her amended motion for new trial that she had been denied effective assistance of counsel because her trial counsel had failed to retain expert testimony to refute the medical testimony presented by the State. At the hearing on the motion for new trial, the defense presented the testimony of a forensic pathologist, Joseph Burton, who previously had served as the chief medical examiner for several Georgia counties. Burton testified that he agreed with Sperry that subdural hemorrhaging in conjunction with swelling of the brain was the cause of Walter's death. And at one point he testified that subgaleal bruising[6] showed that someone struck Walter on the head more than one time with some object. But Burton also testified that he did not think a punch or a kick to the top of the head could have caused the hemorrhaging.

         Burton testified it is possible for someone to remain lucid for several days following an incident that causes subdural hemorrhaging and brain swelling, so it is possible that Walter had a telephone conversation after receiving an injury that caused those symptoms. Even so, he acknowledged that it was "a stretch" to conclude that Walter was conscious for even as long as ten or 12 hours following the injury. Burton disagreed with Sperry's conclusion that a fall onto the shower rail could not have caused Walter's abdominal injury. And, although Burton initially said that the abdominal injury likely occurred about the same time as the brain injury, he later said the abdominal injury happened several days before Walter's death. Burton testified that it was possible that Walter's death was not a homicide and she rather had a seizure the day before her death, hit her cheek which caused the subdural hemorrhaging, hit her head on the floor which caused the subgaleal bruising, remained conscious for several hours, and died that night.

         But on cross-examination, Burton testified that he would not be willing to testify to a reasonable degree of medical certainty that she died in that fashion. He acknowledged having a bias against the GBI, saying he thought GBI pathologists testified "with a prosecutorial slant." He also acknowledged having erroneously stated in a report that Walter was an alcoholic. Questioned by the trial court about what he considered in reaching his conclusion as to the cause and manner of death, Burton said that among other things he considered Appellant's testimony that she saw Walter fall out of a chair, then, in Burton's words, "kind of thrash around on the floor" for several minutes.

         The State called Appellant's trial counsel at the motion for new trial hearing. After meeting with Sperry prior to the first trial, trial counsel testified, he concluded that he did not need a forensic expert in Appellant's case because (1) Sperry was very accomplished and the chief medical examiner for the State; (2) trial counsel had worked with Sperry previously as a criminal defense lawyer and found him unbiased and accommodating; and (3) Sperry was very knowledgeable about the case and unequivocal about his medical findings. In the light of Sperry's impartiality and credibility, trial counsel testified, he determined that he did not have a good faith basis to ask the court to pay for a defense forensic pathology expert. He also was concerned about the negative effect of the jury hearing a second round of testimony about Walter's injuries. The defense focus was on the theme that Appellant was not the type of person to have inflicted Walter's injuries, trial counsel said.

         The trial court denied the motion for new trial, finding that the evidence was sufficient to support the guilty verdicts and that Appellant had failed to prove that her counsel was ineffective. The trial court found that the defense strategy based on Walter's penchant for falling as the cause of her injuries, Appellant's good character, and the warm relationship between her and the victim was reasonable, as it was supported by ample evidence. Counsel was justified in not presenting an expert that would have kept the focus on Walter's injuries, the trial court ruled. The trial court also found that there was no reasonable probability that the outcome of the trial would have been different had Burton testified at trial, given that Burton agreed with much of Sperry's testimony and would not testify to a reasonable degree of medical certainty that Appellant's theory of Walter's death was correct. Moreover, the trial court pointed to problems with Burton's testimony, such as internal contradictions and his admitted bias against GBI pathologists like Sperry. The trial court noted that Burton had to retract a reference to the victim as an alcoholic, and the trial court said it had been unable to find any basis in the record for Burton's understanding that Appellant had said she saw Walter thrash about on the floor for several minutes.[7]

          1. Although Appellant does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that she was guilty of the crimes for which she was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant's sole contention on appeal is that she was denied effective assistance of counsel during the preparation of the case for trial and during the trial itself by trial counsel's failure to retain expert testimony to refute the medical testimony presented by the State. In order to establish that trial counsel was ineffective, Appellant must show both that trial counsel's performance was deficient, and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). In order to show prejudice, the defendant must show that a reasonable probability exists that, but for trial counsel's errors, the outcome of the trial would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "We accept the trial court's factual ...

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