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Wade v. State

Supreme Court of Georgia

June 18, 2018

WADE
v.
THE STATE.

          HUNSTEIN, JUSTICE.

         Appellant Nicholas Clarence Wade was convicted of murder and related offenses arising out of the beating death of Keon Belk, as well as the aggravated assault of Vinnie Jones. On appeal, Appellant contends that the jury was improperly charged, that the trial court erroneously admitted certain testimony and evidence, and that he was improperly sentenced. Though we find no reversible error with respect to the verdicts, we agree that Appellant was erroneously sentenced, and we must, therefore, vacate and remand for resentencing.[1]

         Viewed in a light most favorable to the verdicts, the evidence and testimony adduced at trial established as follows. At all relevant times, Appellant lived with Jillian Belk and her 18-month-old son, Keon, in a house in DeKalb County, Georgia. Jillian worked at a hospital and would leave the house for her shift around 5:20 a.m. Appellant was Keon's sole caretaker in Jillian's absence. In the days prior to Keon's death, Jillian noticed bumps and bruises on Keon's body, including a blackening of his toes, new scratches on his back and foot, and a scab over his eye. When asked about the injuries, Appellant reported that the injury on Keon's back was caused by another child, that the injury to his foot was caused by a bike chain, and that the above-the-eye injury resulted from a fall; Jillian was satisfied with Appellant's explanations. No family members noticed any changes in Keon's personality or behavior prior to his death, and Keon's medical history indicated that he was a normal, healthy child.

         On the morning of February 3, 2014, Jillian left for work at her normal time. About an hour later, EMTs responded to an emergency at her shared residence. When they arrived, Keon was unconscious and unresponsive. Appellant informed the EMTs that he had put Keon to bed around 8:00 the night before and that he had heard a loud bang the next morning, which prompted him to perform CPR on Keon and call 911. Keon was taken to DeKalb Medical Center at Hillandale where the doctors performed CPR for 20 minutes until they were able to reestablish the child's pulse. Appellant told the attending nurse that Keon had experienced cold-like symptoms over the last couple of weeks and had not experienced any trauma prior to being brought to the hospital. Keon was subsequently transported to Egleston Children's Hospital. At this time, Appellant called Jillian to inform her that Keon "wasn't breathing right" and that the child was being transported to Egleston Hospital; Jillian immediately headed to Egleston. Appellant continued to communicate with Jillian over the phone, telling her that he had fallen on top of Keon after tripping on a makeshift baby gate and that Keon had previously injured himself after falling out of bed and hitting a lockbox. Appellant apologized many times without explanation.

         Upon arriving at Egleston, Keon was on a ventilator; he could not breathe on his own and continued to be unresponsive. The treating physician noted bruising on Keon's head and a healing burn on the child's toes. After conducting numerous tests, the doctor determined, among other things, that: Keon had a healing rib and leg fracture; his brain was swollen and bleeding; he had injuries to his liver, pancreas, and kidneys; he was experiencing retinal bleeding and had fluid in his abdomen and lungs; and his ribcage and spine had been forcefully compressed. Keon's treating physician concluded that the child's injuries were consistent with abuse, that his liver lacerations were the result of blunt force trauma to the abdomen inflicted by "some sort of blow, a punch, [or] a kick, " and that his rib and spine injuries were consistent with the child being squeezed and slammed. The doctor testified that a child would not sustain such injuries by falling out of bed and that the injuries could not have been caused accidentally. Keon died from his injuries on February 4, 2014. The medical examiner opined that Keon's death was the result of delayed complications from non-accidental blunt force abdominal trauma and that Keon's injuries were consistent with being kicked and punched in his chest and abdomen.

         After Keon's death, law enforcement were unable to locate Appellant. Jillian, however, alerted authorities when Appellant contacted her, and she agreed to meet Appellant at an apartment complex behind a nearby shopping center; officers followed Jillian to the meeting point. Appellant got into the front passenger seat of Jillian's car, again apologized for Keon's death, and asked her, "What are we going to do?" Appellant had a sawed-off shot gun in his lap and a bag filled with personal items, including clothes, a cell phone, and money. Officers followed Jillian as she drove away from the apartment complex with Appellant as a passenger and eventually initiated a traffic stop; Jillian pulled into a church parking lot. DeKalb County Investigator Victor Jones saw Appellant sitting in the front passenger seat, and he pulled his police car in front of Jillian's vehicle to ensure it would come to a complete stop. As Jones exited his vehicle, he saw Appellant holding the shotgun to his chin as if he were going to commit suicide. Investigator Jones drew his service weapon and warned Appellant not to shoot, after which Appellant lowered the weapon in Jones' direction and fired; a nearby officer returned fire. Appellant was injured during the exchange of gunfire, but he was given aid and subsequently arrested.

         While incarcerated, Appellant spoke with Danny Cooper, an acquaintance, regarding Keon's care and subsequent death. Appellant explained that, prior to Keon's death, he was trying to make Keon "tough, " and he admitted to putting Keon's foot in a space heater, striking him with a remote control, and kicking him in the chest as a form of punishment. As to the morning in question, Appellant admitted to Cooper that, after Jillian left for work, he kicked and punched Keon and then put him back to sleep on the couch. Appellant noticed Keon's labored breathing and, when he checked on the child sometime later, he discovered that Keon's face had turned blue.

         1. Although Appellant does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to review the record independently to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence as summarized above was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant first argues that the trial court erred when it failed to give his requested instructions on accident, as well as the State's burden to disprove affirmative defenses beyond a reasonable doubt. Specifically, Appellant contends that Jillian's testimony concerning Appellant's explanation of Keon's fatal injuries - namely that Keon hit a lockbox after falling out of bed and that Appellant fell on top of Keon after tripping over a gate - constituted "slight evidence" sufficient to warrant the instructions. Whether the evidence was sufficient to warrant the requested instruction is a legal question, which we review de novo. See Wilson v. State, 279 Ga. 104 (2) (610 S.E.2d 66) (2005)

         OCGA § 16-2-2 states that "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." The affirmative defense of accident arises when a defendant contends that his acts were accidental or a product of misfortune rather than criminal intent or negligence. See Kellam v. State, 298 Ga. 520 (2) (783 S.E.2d 117) (2016). Evidence that Keon may have fallen from the bed while sleeping and injured himself does not "involve homicide by accident . . . but only death from accidental means not attributable to any conduct, culpable or otherwise, on the part of the defendant." (Emphasis added.) Johnson v. State, 239 Ga. 324, 324 (236 S.E.2d 661) (1977). Cf. Smith v. State, 296 Ga. 116, 119-120 (765 S.E.2d 328) (2014) (accident defense unwarranted where defendant's theory was that victim accidently started fire herself). Likewise, Appellant's "admission" that, in the days leading up to Keon's death, he had "tripped over a board" and fallen on top of the boy does not account for the extent of Keon's injuries, and, thus, is no basis for an accident instruction. See Kellam 298 Ga. at 523.

         Nevertheless, even if the evidence supported an instruction on accident, the trial court's refusal to give the instruction does not mandate reversal. "Th[e] accident defense applies where the evidence negates the defendant's criminal intent, whatever that intent element is for the crime at issue." State v. Ogilvie, 292 Ga. 6, 9 (734 S.E.2d 50) (2012). "Here, the jury was properly and fully instructed that the State had the burden of proving beyond a reasonable doubt that [Appellant] acted with the requisite malicious intent to commit each of the crimes charged, " and "[t]he jury's conclusion that [Appellant] acted with malice thus necessarily means that it would have rejected any accident defense, which is premised on the claim that he acted without any criminal intent." Sears v. State, 290 Ga. 1, 3-4 (717 S.E.2d 453) (2011). See also Thomas v. State, 297 Ga. 750 (2) (778 S.E.2d 168) (2015).

         3. Appellant successfully moved in limine to prevent "character evidence" and "other acts" evidence from being presented by the State; Appellant asserts that the State twice violated this order. In the first instance, Jillian testified that Appellant, while in the church parking lot and armed with the sawed-off shotgun, "sa[id] that he wasn't going back to jail, and he put the gun under his chin." The trial court sustained Appellant's objection and motion to strike, and the jury was instructed to disregard the comment. Later, Cooper testified that Appellant told him that he was carrying the sawed-off shotgun after Keon's death because he was "not going back to prison." Following this statement, Appellant objected and moved for a mistrial. The trial court sustained the objection, denied the mistrial, and provided a curative instruction; Appellant objected to the curative instruction and again moved for a mistrial. Following argument from counsel, the trial court concluded that the statements were, contrary to the earlier ruling, likely admissible and denied the motion for mistrial.[2] On appeal, Appellant contends that the trial court's decision was erroneous. We review this claim for abuse of discretion. See Smith v. State, 302 Ga. 699 (3) (808 S.E.2d 692) (2017).

         Generally speaking, "[e]vidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion." OCGA § 24-4-404 (a). Likewise, absent exception, "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith." OCGA § 24-4-404 (b). Though Appellant contends that the statements from Jillian and Cooper placed Appellant's prior felony before the jury, he overstates his case. Instead, the record reflects that: the State instructed Jillian not to reference Appellant's criminal history and Cooper's testimony was a surprise; the witnesses' statements were nonresponsive; the statements simply referenced Appellant's prior incarceration; and the trial court provided a curative instruction, which the jury is presumed to have followed, see Womac v. State, 302 Ga. 681 (2) (808 S.E.2d 709) (2017). Under these circumstances, Appellant's character was not put at issue, and the trial court did not abuse its discretion when it denied Appellant's motions for a mistrial. See Graves v. State, 298 Ga. 551 (3) (783 S.E.2d 891) (2016).[3]

         4. Appellant also contends that the State adduced improper expert testimony and that, as such, he was entitled to a mistrial. Relevant here, Dr. Tamika Bryant, a physician at Egleston's Children Hospital, testified that Keon's injuries were "nonaccidental" and were consistent with a "stomp, kick, or punch." Likewise, the medical examiner opined that some of Keon's injuries were "nonaccidental, " meaning that the injury "was inflicted by another individual." The trial court denied Appellant's repeated requests for a mistrial, and, on appeal, ...


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