Opinion
41684.
DECIDED JANUARY 30, 1985.
Murder, etc. Fulton Superior Court. Before Judge Etheridge.
Derek H. Jones, for appellant.
Lewis R. Slaton, District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, for appellee.
Turner and Clark were convicted of cruelty to children and felony murder as a result of the death by beating of Turner's four-year-old daughter. Each was sentenced to life imprisonment for murder, and to a term of twenty years for cruelty to children. Turner appeals.
The crimes were committed on February 21, 1984, the defendant was convicted on August 24, 1984, the judgment of conviction was appealed on September 21, 1984, a transcript of evidence was filed on October 11, 1984, the record was docketed in this court on October 31, 1984, and the case was submitted to this court for decision on December 12, 1984.
1. The state concedes that Turner "may not be convicted of felony murder and also be convicted of the underlying felony [cruelty to children] which supports the conviction of felony murder." Bolton v. State, 253 Ga. 116, 117 ( 318 S.E.2d 138) (1984). The conviction for cruelty to children is therefore vacated. Bolton, supra.
2. Turner questions the sufficiency of the evidence to sustain her conviction. The child was not breathing and registered no blood pressure when she was brought to an emergency medical facility. An attending nurse testified that her body exhibited numerous cuts, bruises, scrapes and burns, possibly a broken arm, swelling of the face, and hematoma at the upper forehead. Wounds in the groin area were consistent with cigarette burns. She had a badly burned left hand, and there were bite marks on her buttocks. A large quantity of blood was found in the child's abdominal and thoracic cavities. The clinic supervisor testified that the injuries were consistent with child abuse. The autopsist testified that the child died of blunt force trauma to the head, which caused intra-cranial bleeding.
Turner admitted striking the child with a belt, with an electric iron cord, and with switches, but said that she stopped when evidence of trauma became visible. She said that the child "had a right nasty attitude and that she acted real smart like she knew what everything was going on." Neighbors testified that Turner was in the apartment on the night of the homicide.
Clark, the co-defendant, admitted that he had hit the child "too hard." He acknowledged kicking the child and hitting her in the stomach. He said Turner was present in the apartment when he struck the child.
The evidence is sufficient to sustain the conviction under Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979).
3. Turner contends that she was denied due process under the Fourteenth Amendment when the trial court allowed the jury to consider a verdict of felony murder. The indictment charged Turner with cruelty to children, and with malice murder in that she struck and beat the child with hands, fists and other objects. The language of the indictment was sufficient notice to Turner that she could be found guilty of the included offense of felony murder in the course of committing the felony of cruelty to children. McCrary v. State, 252 Ga. 521, 524 ( 314 S.E.2d 662) (1984).
4. We find no violation of Brown v. State, 250 Ga. 862 ( 302 S.E.2d 347) (1983). The physical conditions visible in the photographs were not created by the autopsist. Although the tubes inserted into the child's body could have been removed before the photographs were taken (and should have been removed), they were not "so gruesome as to require reversal." 250 Ga. at 866.
5. We find no violation of the principle stated in Alexander v. State, 247 Ga. 780, 784 ( 279 S.E.2d 691) (1981). There was no instruction here that a unanimous finding of innocence was required as to the charged offense before the jury properly might consider Turner's guilt as to a lesser included offense.
Judgment affirmed in part; reversed in part. All the Justices concur.