Ronnie Thornton, 32, was
sentenced to death in November 1992 in Douglas County for the beating
death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May
7, 1991. Doctors determined Artealia and her siblings had been
The state Supreme Court reversed Mr. Thornton's
convictions in May 1994 because the prosecutor used videotaped testimony
instead of calling the children to testify. A retrial hasn't been held
yet and Mr. Thornton was transferred off death row in September 1997.
Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children
and received a four-year sentence.
(264 Ga. 563)
(449 SE2d 98)
Murder. Douglas Superior Court. Before Judge Emerson.
Ronnie Thornton was convicted of the malice
murder of Artealia Lavant; three counts of the felony murder of
Artealia Lavant, the underlying felonies being two counts of cruelty
to children and one count of aggravated battery; and one count of
cruelty to children as to Cynthia Lavant.
The jury recommended the death penalty for each
of the four counts of murder, finding that each murder had been
committed during the course of an aggravated battery, OCGA
17-10-30 (b) (2), and that each murder
was wantonly vile, horrible or inhuman in that it involved torture
to the victim and depravity of mind. OCGA
17-10-30 (b) (7). The trial court imposed four death
sentences for the murder convictions, and a twenty-year consecutive
sentence for the offense of cruelty to children.
Shirley Lavant and her three young children,
Cyquieta, Cynthia and Artealia, lived with Ronnie Thornton. Thornton
was frequently unemployed, and was the primary caretaker of the
children while Lavant worked.
On the day of Artealia's death, Lavant returned
home after taking Cyquieta to school. She found Thornton standing
over Artealia's motionless body. Thornton stated that Artealia, two
years old, had choked on pizza and that he had been performing CPR
Following a 911 call, paramedics arrived and
unsuccessfully attempted to revive the child. Repeated attempts at
the hospital to resuscitate Artealia also failed. Hospital personnel
noticed that both Artealia and Cynthia, four years old, were covered
in bruises, and notified the Department of Family and Children's
When questioned by a nursing assistant about her
bruises, Cynthia stated that "Ron did it." At that time the nursing
assistant did not know who "Ron" was, but wrote down Cynthia's
statement. Later that day Cynthia gave the same answer to a DFCS
employee who questioned her about her bruises. There is nothing in
the record to indicate that anyone present influenced Cynthia's
The autopsy performed on Artealia Lavant revealed
numerous fresh and old injuries, particularly to her head and face.
The child was substantially underweight, and bruises covered her
abdomen, chest and back. Additionally, there was an older injury to
one arm indicating that the tissues had been repeatedly grabbed and
rotated. The doctor who performed the autopsy opined that
significant head injuries were the cause of Artealia's death. There
was no presence of food in the child's throat or windpipe, and no
indication that she died as a result of choking.
A further examination of Cynthia Lavant revealed,
in addition to numerous external bruises, that she had untreated,
older fractures of her upper arm, wrist bone and ribs. The examining
physician testified that it would take a significant amount of force
to fracture the ribs in this manner.
Shirley Lavant testified that she began living
with Thornton while in the process of divorcing the children's
father. She stated that she had repeatedly noticed bruising and
other injuries sustained by the children, but that Thornton had
always explained that they had fallen or otherwise hurt themselves
while playing. Lavant was originally charged with Artealia's murder,
but these charges were dismissed, and Lavant was permitted to plead
guilty to two counts of cruelty to children.
Lavant's sister-in-law, Jean Wallace, testified
that on several occasions prior to Artealia's death she noticed that
the child was bruised, swollen and extremely withdrawn. When she
confronted Lavant, Lavant stated that Artealia had injured herself
playing. Wallace repeatedly contacted Cobb County DFCS seeking an
investigation, but none was made.
1. Construing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have
found Thornton guilty of the crimes charged beyond a reasonable
doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)
2. (a) Over Thornton's objection the trial court,
under the auspices of the Child Hearsay Act, admitted in evidence
the videotaped statement of Chuckie Colon, a twelve-year-old
relation of the Lavants, who stated that, on two separate occasions,
he saw Thornton physically abuse Artealia and Cynthia Lavant. This
videotape was made by Jean Wallace and another Lavant relation eight
months after one of the alleged incidents occurred and five months
after the occurrence of the other. In the videotape Chuckie
described watching Thornton slap and strike both victims; jerk their
arms; pick up and drop Artealia; and throw Artealia on her bed.
After the jury had viewed the videotape, Chuckie took the stand and
testified that he was telling the truth when the videotape was made.
Initially, we agree with Thornton that Chuckie's
videotaped statement was not admissible under the Child Hearsay Act,
OCGA 24-3-16. That Act provides that
[a] statement made by a child under the age of 14 years describing
any act of sexual contact or physical abuse performed with or on the
child by another is admissible in evidence by the testimony of the
person or persons to whom made if the child is available to testify
in the proceedings and the court finds that the circumstances of the
statement provide sufficient indicia of reliability.
The Act, by its own language, excepts from the
hearsay rule "only . . . such statements as are made by the actual
victim of the event being related." (Emphasis supplied.) Assad v.
State, 195 Ga. App. 692, 693 (394
SE2d 617) (1990); Riddle v. State, 208
Ga. App. 8, 11 (2) (430 SE2d 153)
(1993). ("That statute provides an exception to the hearsay rule
only for statements concerning acts of sexual conduct or physical
abuse performed on the child making the statement." (Emphasis
The cases relied on by the state do not support a
conclusion that the out-of-court statements of a child witness who
observes the physical abuse of another child, but who is not himself
a victim of such abuse, may be admitted as an exception to the
hearsay rule under OCGA 24-3-16.
Contrary to the state's contention, the amendment
to OCGA 24-9-5 governing the
competency of certain classes of witnesses excepts "children solely
from a competency challenge based on the allegation they do not
understand the nature of an oath," Sizemore v. State,
262 Ga. 214, 217 (416
SE2d 500) (1992), or the nature of the truth. Norton v. State,
263 Ga. 448 (3) (435 SE2d 30) (1993).
It does not expand the circumstances under which hearsay statements
of a child may be admitted in evidence.
The record does not support the state's
additional argument that Chuckie's videotaped statement was
admissible under the Child Hearsay Act because Chuckie was a victim
of mental abuse by Thornton. See OCGA 16-5-70.
While Chuckie stated that he was afraid of Thornton, he also said
that the only statement Thornton ever made to him in connection with
his observation of the abuse was to "mind [his] own business."
Furthermore, we conclude that Chuckie's videotape
was not admissible as a prior consistent statement, see Cuzzort v.
State, 254 Ga. 745 (334 SE2d 661) (1985),
because no in-court testimony was ever elicited by the state with
which the videotape could be consistent and the veracity of which
could be attacked.
(b) Thornton argues the trial court erred in
admitting videotaped interviews between a sheriff's deputy and
Cynthia and Cyquieta Lavant, also under the Child Hearsay Act.
Contrary to Thornton's contention, videotaped statements of victims
of abuse are not inherently inadmissible under the Child Hearsay Act
if the requirements of the statute are otherwise met. Vick v. State,
194 Ga. App. 616 (391 SE2d 455) (1990).
In her interview Cyquieta stated that when she
left for school on the morning of Artealia's death, Artealia was not
sick. She additionally stated that "once in a while" Thornton would
pick Artealia up by one arm. Cyquieta also stated that at one point
Artealia's arm was swollen and her mother "suspect[ed] it was Ron by
picking her up by the arm." Because these statements were
observations of the abuse of another rather than statements of abuse
suffered by the declarant, the statements were inadmissible under
the Child Hearsay Act.
In her videotaped statement Cynthia said that
Thornton inflicted the bruises on her face. She also stated that
Thornton had hit both Artealia and Cyquieta. While the former
statement was admissible under the Child Hearsay Act, the latter was
We find that the trial court erred in admitting
Cyquieta's videotaped statement, and erred in admitting Cynthia's
videotaped statement except to the extent Cynthia described abuse
inflicted upon herself.
Due to the erroneous admission of the evidence
described above, the appellant's conviction must be reversed. In the
remainder of this opinion, we will consider the appellant's
remaining enumerations of error and address those issues which
potentially could reoccur if the state chooses to retry the
(c) Cynthia Lavant's statement to a nurse's aide,
in response to a question about her bruises, that "Ron did it," was
admissible under the Child Hearsay Act. Cynthia was the actual
victim of the abuse being related, she was available to testify, and
the defense attorney expressly declined the trial court's offer,
made outside the presence of the jury, to call the child to the
stand pursuant to Sosebee v. State, 257 Ga.
298 (357 SE2d 562) (1987).
(d) There is no requirement in OCGA
24-3-16 that the state provide the
defense with pre-trial notice of its intention to introduce child
hearsay statements in evidence. In this case the trial court, in
conjunction with Thornton's Brady motion, notified the defense three
days prior to trial that there was nothing exculpatory in the
videotaped interviews with Chuckie Colon and Cynthia Lavant. At the
same time the trial court ordered the state to allow defense counsel
to view the videotaped interview with Cyquieta Lavant. Additionally,
Thornton was able to view the three videotapes during proffers made
outside the presence of the jury. At no time did he move for a
continuance to further explore the issues raised therein. Nor did he
cross-examine Chuckie Colon, or invoke the procedures of Sosebee to
call Cynthia and Cyquieta to the witness stand, even though the
record shows that this opportunity was made available to him more
than once. We are unable to say under these circumstances that
Thornton's right to due process was violated by not being permitted
to view all three videotapes prior to trial.
(e) We have previously held that Confrontation
Clause concerns addressed in Idaho v. Wright, 497 U. S. 805 (110 SC
3139, 111 LE2d 638) (1990), are not present in OCGA
24-3-16. Allen v. State,
263 Ga. 60 (428 SE2d 73) (1993).
Thornton's argument that the statute conflicts with the
Confrontation Clause lacks merit.
3. (a) Thornton failed to make a hearsay
objection to Officer Zachery's testimony regarding his interview
with Shirley Lavant and may not raise this issue for the first time
on appeal. Earnest v. State, 262 Ga. 494 (1)
(422 SE2d 188) (1992). Additionally, we note that defense
counsel cross-examined Detective Zachery extensively about
statements Shirley Lavant made during the interview.
(b) Likewise, Thornton specifically stated he had
no objection to the playing of the tape-recording of Shirley's 911
call, and may not now complain of its admission.
(c) Upon the trial court's invitation to do so,
Thornton stated he had no objection to playing the videotaped
interview Deputy Ashcraft conducted with Shirley Lavant. This issue
was not preserved for appeal. Id.
4. Thornton alleges numerous instances of
prosecutorial misconduct during closing arguments of the guilt-innocence
phase of trial.
(a) Reading the prosecutor's entire closing
argument in context, we conclude that the district attorney was not
commenting on Thornton's failure to call an expert witness, but was
referring to Thornton's failure to rebut evidence that Artealia
Lavant was "beaten to death." Blige v. State,
263 Ga. 244 (430 SE2d 761) (1993). Additional remarks of the
district attorney did not comment on Thornton's failure to testify,
but were assertions that evidence demonstrating guilt had not been
contradicted. Ingram v. State, 253 Ga. 622
(8) (323 SE2d 801) (1984). The record does not support
Thornton's contention that the district attorney attempted to shift
the burden from the state to the defense on the issue of malice.
(b) The prosecutor's argument did not assert that
the presumption of innocence no longer existed, but rather urged the
jury to consider that presumption in the light of evidence presented
by the state. We find no error.
(c) There is no merit to Thornton's contention
that the prosecutor's argument to the jury that Thornton had acted
as "judge, jury and executioner" and had "imposed the death penalty"
on Artealia was improper. Moreover, no contemporaneous objection was
made. See Todd v. State, 261 Ga. 766 (2) (410
SE2d 725) (1991).
Asking the jury to "imagine the pain and
suffering" Artealia endured is not reversible error. See Hammond v.
State, 260 Ga. 591, 597 (5) (398
SE2d 168) (1990). It was not improper for the prosecutor to
urge the jury to convict in order to deter child abuse in the
community. Philmore v. State, 263 Ga. 67 (3)
(428 SE2d 329) (1993).
At the beginning of his closing argument, the
district attorney noted that defense counsel had never mentioned
Artealia Lavant's name. He added that, despite this, Artealia "will
never leave here," and "will not leave there for her family." He
later queried whether Cynthia Lavant "will ever come out complete of
the emotional state she's in." Thornton argues that these are
impermissible victim impact statements within the meaning of Sermons
v. State, 262 Ga. 286 (417 SE2d 144) (1992).
The statement regarding Artealia was not
impermissible. Ward v. State, 262 Ga. 293 (6)
(g) (417 SE2d 130) (1992). There was
no contemporaneous objection to the statement regarding Cynthia, and
even assuming the statement was error, we conclude that there is no
reasonable probability that this statement changed the result of the
trial. Todd v. State, supra.
Likewise, we have reviewed the other alleged
instances of prosecutorial misconduct during this argument to which
the defense did not object, and we conclude that they did not change
the outcome of the trial.
5. Thornton complains that the trial court made
seven errors in its charge to the jury following the guilt-innocence
phase of trial:
(a) Thornton alleges the charge invited the jury
to convict him of murder even if it found that Artealia Lavant died
as the result of "accidentally botched CPR" which followed an "unlawful
stemming from child abuse. The trial court gave a
legally correct charge on unlawful injury; it did not relate this
charge in any manner to Thornton's attempt to perform CPR on
Artealia. From our review of the evidence presented and the entire
charge, we hold that a reasonable juror would not have inferred that
he could find Thornton guilty of murder based on the administering
(b) The charge on reasonable doubt of which
Thornton now complains is virtually identical to the one he
requested. Further, the charge taken as a whole accurately explained
the concept of reasonable doubt to the jury, and did not shift the
burden of proof to the defense. There is no reasonable likelihood
that the jury may have applied this instruction in an
unconstitutional manner. Victor v. Nebraska, 511 U. S. ---- (114 SC
1239, 127 LE2d 583) (1994).
(c) The trial court's charge on conflicts in
evidence is, in substance, the same as the one requested by Thornton.
We find no error.
(d) Likewise, the charges on similar transactions
and cruelty to children did not differ in any material manner from
the charges requested by Thornton, and were correct statements of
(e) One count of the indictment charged that
Thornton killed Artealia Lavant in the course of an aggravated
battery in that he maliciously caused bodily harm to her by "rendering
a member of her body useless and seriously disfiguring her body." (Emphasis
supplied.) In charging the jury on this offense, the trial court
correctly defined aggravated battery as "rendering a member of his
or her body useless, or by seriously disfiguring his or her body or
a member thereof." (Emphasis supplied.) OCGA
Thornton argues that his conviction is defective
because the trial court's charge constituted a fatal variance from
the indictment. We disagree. There is no reasonable probability that
the trial court's charge permitted the jury to convict Thornton of a
crime in a manner not charged in the indictment. Childs v. State,
257 Ga. 243 (17) (357 SE2d 48) (1987).
(f) Thornton was charged with three counts of
felony murder. The trial court instructed the jury that if it did
not find the defendant guilty beyond a reasonable doubt of the
counts of felony murder, it was authorized to consider whether he
was guilty of the underlying felonies or the lesser included
offenses thereof. The law of voluntary manslaughter was not charged,
nor was there evidence of this crime present in the case. The
charges in question did not violate Edge v. State,
261 Ga. 865 (414 SE2d 463) (1992).
Philmore v. State, 263 Ga. at 69.
6. The jury found Thornton guilty of one count of
malice murder and three counts of felony murder for the death of
Artealia Lavant. While the evidence is sufficient to support the
convictions, see Division 10, infra, the appellant may be sentenced
on but one of the convictions since there was but a single victim.
Malcolm v. State, 263 Ga. 369 (434 SE2d 479)
(1993); OCGA 16-1-7.
We do not agree with Thornton's contention that a
new sentencing trial must be ordered because the jury imposed four
sentences of death based on the four murder convictions. The jury
found the aggravating circumstances OCGA
17-10-30 (b) (2) and 17-10-30
(b) (7) as to each of the four murder convictions. While the three
death sentences imposed for the felony murder convictions are void
under Malcolm, this does not affect the validity of the remaining
sentence of death. High v. Zant, 250 Ga. 693
(18) (300 SE2d 654) (1983).
7. In an extensive order the trial court found
that the state's notice of intent to offer evidence of similar
transactions was sufficient to place Thornton on notice of the time
and place of the alleged occurrences. Further, the trial court found
that the state's proffer of four allegedly similar transactions
satisfied the test of Williams v. State, 261
Ga. 640 (409 SE2d 649) (1991). Both findings are supported by
the record. The notice provided by the state in conjunction with the
proffer at the Williams hearing put Thornton on notice of the
similar transactions evidence the state intended to offer at trial
such that Thornton had "a meaningful opportunity to rebut that
evidence." Maxwell v. State, 262 Ga. 73,
74 (414 SE2d 470) (1992).
8. Thornton argues the trial court erred in
admitting three statements he made to members of the Douglas County
Sheriff's Department which he alleges violated his right against
(a) Thornton's initial statement was made during
the routine investigation of Artealia's death. He indicated that he
heard the child coughing and believed she was choking on food. He
performed CPR, artificial respiration and attempted to dislodge any
objects in her throat with his fingers, but he was unable to revive
her. The record supports the trial court's conclusion that Thornton
was not in custody at the time of this statement, and Miranda
warnings were not necessary. Lobdell v. State,
256 Ga. 769 (6) (353 SE2d 799) (1987).
(b) With regard to Thornton's second statement.
made after a waiver of his Miranda rights, the record belies
Thornton's contention that it was the product of "veiled threats."
Rather, the record shows that the statement, which was videotaped,
was made without the "hope of benefit" or "fear of injury." OCGA
[U]nwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must
nevertheless be excluded from evidence under Miranda. Thus, in the
individual case, Miranda's preventive medicine provides a remedy
even to the defendant who has suffered no identifiable
Oregon v. Elstad, 470 U. S. 298, 307 (105 SC
1285, 84 LE2d 222) (1984).
9. Over Thornton's objection, the trial court
permitted the state to offer three post-autopsy photographs of
Artealia, each depicting injuries to her skull with the scalp
deflected. The pathologist who performed the autopsy testified that
the autopsy revealed internal bruising all over Artealia's head
which was not visible from an external examination. The pathologist
further opined that there was a strong likelihood that these
injuries, resulting from blunt impact, were the cause of Artealia's
death. The photographs in question were cropped to depict only those
portions of Artealia's face and skull which illustrated the
We conclude that the admission of these
photographs meets the necessity exception to Brown v. State,
250 Ga. 862 (5) (302 SE2d 347) (1983).
("A photograph which depicts the victim after autopsy incisions are
made . . . will not be admissible unless necessary to show some
material fact which becomes apparent only because of the autopsy.")
See also Brown v. State, 262 Ga. 833 (9) (426
SE2d 559)(1993). The photographs were necessary to
demonstrate the cause of death and to rebut Thornton's claim that he
may have unintentionally killed the child while performing
cardiopulmonary resuscitation on her after she choked on a piece of
10. Contrary to Thornton's assertion, the record
shows that he consented in writing to a search of his home. He
points to nothing in the record demonstrating that this consent was
not voluntarily given.
11. Thornton argues the trial court erred in
permitting two physicians to testify to "an ultimate issue" in the
case: that Artealia was an abused child.
The emergency room physician who treated Artealia
on the morning of her death testified that his examination of the
child revealed "multiple contusions all over the body which were . .
. old in nature so there was a strong suspicion of child abuse." The
pathologist who performed the autopsy testified that Artealia had
suffered an injury to her arm indicating that the tissues had been "grabbed
and rotated." He testified that this rotation of tissues tears the
blood vessels, causing bleeding which turns into bulk if not
absorbed and is one of the "signs you look for . . . in suspected
child abuse cases."
These experts did not give their professional
opinions that Artealia had been abused, but only that there was a "suspicion"
of child abuse. After denying Thornton's motion for mistrial based
on this testimony, the trial court instructed the jury that "regardless
of the possible words 'child abuse' by a witness in this case, that
determination always remains for you the jury to decide." Further,
defense counsel twice maintained in his opening statement to the
jury that "the medical evidence" would show that "someone hit those
children over some period of time," and that the questions to be
answered were who had done it and when it had been done. Last, some
of the inferences to be drawn from the medical testimony in question
were beyond the ken of the average jurors. Allison v. State,
256 Ga. 851(3) (353
SE2d 805) (1987); Bethea v. State, 251
Ga. 328 (10) (304 SE2d 713) (1983). Considering all these
circumstances we find no error.
12. Thornton argues the trial court erred in
denying his motion to require Cynthia and Cyquieta Lavant to submit
to an interview concerning events surrounding their sister's death.
At the hearing on this issue, both DFCS, who had legal custody of
the girls, and the guardian ad litem appointed for the children
opined that neither the state nor Thornton should be permitted to
interview the children. As "[a] witness may refuse to be interviewed
prior to trial," Dover v. State, 250 Ga. 209
(2) (296 SE2d 710) (1982), and a child-witness' guardian may
make such a decision, id.,the trial court did not err in denying
Thornton's motion. The videotaped interviews with the children were
made by the Douglas County Sheriff's Office shortly after the murder
in the legal investigation of Artealia's death. The record does not
support Thornton's claim that the interviews were made to give the
state unfair access to the children.
13. In enumerations of error 13, 15, and 17,
Thornton argues that the trial court committed numerous errors in
conducting voir dire, and in failing to excuse several jurors for
(a) Contrary to Thornton's assertion, potential
juror Carter did not state that all murderers, save those who act in
self-defense, should receive the death penalty. The trial court
correctly sustained objections to many of Thornton's questions as
they either asked potential jurors to prejudge the case or to
outline the type of case in which a death sentence should or should
not be imposed. Blankenship v. State, 258 Ga.
43 (6) (365 SE2d 265) (1988).
The record does not bear out Thornton's claim
that the state was permitted to ask a potential juror about what
type of evidence would be sufficient to justify the death penalty;
rather, the record shows the state merely asked the juror to clarify
what she meant, in her response to a defense question, by an "aggravated"
murder. Further, Thornton did not object to this question or other
questions of which he now complains. Absent a contemporaneous
objection, the issue is not preserved for appeal. Pope v. State,
256 Ga. 195 (7) (c) (345
SE2d 831) (1986).
(b) Thornton maintains the trial court erred in
failing to excuse 12 jurors for cause. The responses of potential
jurors Samples, Britain, Strickland, Thomas, and Brown were, to
varying degrees, equivocal regarding their beliefs about the death
penalty and whether they would favor it over a sentence of life
imprisonment. However, the record supports the trial court's
findings that each juror in question was capable of serving
impartially, and would consider both the evidence in mitigation and
the trial court's instructions in determining the appropriate
sentence. "These findings are entitled to deference from this court."
Ledford v. State, 264 Ga. 60 (6)(b) (439
SE2d 917) (1994).
Defense counsel argue that potential jurors Smith
and Arrington should have been dismissed for cause because they
indicated to a bailiff that they were frightened by the fact that
Thornton was "grinning" at them. Both women were thoroughly
questioned by the trial court and stated that, while they were
surprised and made "uncomfortable" by Thornton's behavior, it would
not affect their abilities to be fair and impartial jurors, and
would have no effect on any decision they might make in the case. We
find no error in failing to excuse them for cause.
Thornton has failed to show that the tenuous
relationships between potential jurors Blackman and Rainwater and
the district attorney constituted sufficient grounds to strike them
for cause, and the trial court did not err in failing to do so.
Likewise, the record does not support Thornton's contention that the
three remaining jurors challenged held opinions so fixed that they
were unable to set them aside and decide the case based on the
evidence and the court's charge. Johnson v. State,
262 Ga. 652 (2) (424 SE2d 271) (1993).
(c) Thornton alleges that many of the
prosecutor's questions during voir dire were improper, and tainted
the jury. There was no contemporaneous objection to any of these
questions. Earnest v. State, supra. Further, the record does not
support Thornton's contention that the prosecutor denigrated the
significance of mitigating evidence. Considering the entire voir
dire, rather than isolated extracts, it is apparent that the
questions asked were sufficient to permit the discovery of bias or
prejudice held by any prospective juror. Curry v. State,
255 Ga. 215 (2) (b) (336
SE2d 762) (1985).
14. The trial court did not abuse its discretion
in denying Thornton's request to sever the charge of cruelty to
children involving Cynthia Lavant from the charges against him
involving Artealia Lavant. The record shows that the similar
offenses, resulting in injuries to Cynthia and death to Artealia,
occurred over the same period of time, and were based on the
defendant's continuing conduct as the children's caretaker and
disciplinarian. Terry v. State, 259 Ga. 165,
168 (377 SE2d 837) (1989).
15. Thornton maintains the trial court erred in
failing to require the district attorney to disclose any
associations between his office and prospective jurors in the case.
Considering that Thornton was permitted to submit an extensive pre-trial
questionnaire to prospective jurors, and allowed unlimited voir dire
on this issue, we find no error.
During a pre-trial hearing counsel for Thornton
conceded that the state had provided him with its entire files from
DFCS offices in Cobb, Douglas and DeKalb Counties regarding this
case. He may not now complain that these files were not provided to
16. Thornton argues that the trial court erred in
requiring his experts to reduce their findings to written reports
and provide these to the state pursuant to Sabel v. State,
248 Ga. 10 (282 SE2d 61) (1981) and
OCGA 17-7-211 when there was no
showing that Thornton intended to introduce either of these reports
at trial. We agree.
We held in Rower v. State,
264 Ga. 323 (443 SE2d 839) (1994), that with regard to
scientific reports, "the state is entitled to only those discovery
rights specifically granted to the defendant by OCGA
17-7-211." Id. at 325. We pointed out
that, consistent with discovery rights granted the defendant, the
state may discover only those written reports generated by defense
experts which the defense intends to introduce at trial. We
overruled Sabel to the extent it conflicted with this holding.
Although Rower was decided after Thornton's case was tried,
Thornton's appeal was "in the pipeline," see Taylor v. State,
262 Ga. 584 (2) (b) (422
SE2d 430) (1992), and, thus, the Rower rule applies to
Thornton's appeal, id., and there was error.
17. Because the trial court correctly concluded
that Thornton did not make "a substantive showing of the likelihood
of prejudice by reason of extensive publicity," it did not err in
denying Thornton's motion for change of venue. Jones v. State,
261 Ga. 665, 666 (409
SE2d 642) (1991). Over half of the venire members had neither
heard nor read anything about the case. The vast majority of those
who had been exposed to pre-trial publicity could remember nothing
about it. Of those who had been exposed to pre-trial publicity, only
one person stated that she had formed an opinion about the defendant
as a result, and she was excused for cause.
18. The record belies Thornton's claim that he
was denied a right to a speedy trial. There are two terms of court
in Douglas County, commencing in April and in October. Thornton was
initially indicted in May 1991, during the April term, and he filed
a demand for speedy trial in that same term. The grand jury
subsequently re-indicted Thornton, and he was brought to trial in
September 1992, within two terms of court after the term in which
his demand for speedy trial was made. OCGA
17-7-171 (b). Further, the record shows that Thornton, after
consultation with counsel, withdrew his demand for speedy trial in
19. Prior to trial, the trial court excused from
service eight college students who were registered and attending
classes or scheduled to begin classes during or around the week the
trial was to begin. Thornton contends that these were qualified
jurors, that there was no valid reason to excuse them, and that
their elimination violated his right to a jury drawn from a fair
cross-section of the community.
In Georgia, there is no statutory exemption from
jury duty for college students. See OCGA
15-12-1. However, 15-12-1
permits a trial court to excuse a juror from service if the juror
shows "good cause why he [or she] should be exempt from jury duty,"
15-12-1 (a). Thus, while a blanket,
indiscriminate excusal of registered college students is
incompatible with Georgia law and with the need to draw juries from
a fair cross-section of the community, a trial court has the
discretion, as with other potential jurors who request to be excused
from service, to excuse a student from jury duty based on a
determination that service would impose a special and undue hardship
on the individual student. In ruling on a student's request for
excusal, a trial court should consider the student's obligations,
the length of the trial, and other factors or circumstances relevant
to the individual's request. Likewise, a trial court may refuse a
student's request for excusal based on those same considerations.
4 See, e.g., Robinson v. State,
180 Ga. App. 248, 249 (348
SE2d 761) (1986) (court affirmed trial court's refusal to
excuse student from service in two-day trial which began on Monday
and ended on Tuesday, where student had exams on Wednesday and
Friday of the same week). The record in this case shows that the
trial court interviewed each student individually, and that the
anticipated duration of the particular trial for which the jurors
were summoned, which lasted one month, played a significant part in
the trial court's decisions on requests for excusal. Therefore, we
find no error.
20. Thornton argues that his indictment should
have been quashed because Thomas Furr, a medic who rendered aid to
Artealia Lavant just before her death, served on the grand jury
which indicted him. Furr did not testify at trial.
Trial counsel in this case was not appointed
until after Thornton's indictment. Thornton's counsel conceded below
that he became aware of Furr's participation in the case at least
six months prior to trial, and that he possessed a list of the grand
jury members. His challenge to the indictment, made during voir dire,
is untimely. Sowers v. State, 194 Ga. App.
205 (2) (390 SE2d 110) (1990). Further, Thornton has failed
to show bias resulting from Furr's presence on the grand jury, or
that if bias were shown, it would entitle him to a dismissal of the
21. The record does not support Thornton's claim
that placing additional African-Americans and females on the jury
lists in order to mirror the representation of these groups in
Douglas County's population resulted in the underrepresentation of
white males on the grand jury and petit jury lists.
22. Thornton maintains the trial court erred in
permitting the state to offer inadmissible non-statutory aggravating
circumstances during the sentencing phase of trial.
(a) Initially Thornton argues that the state
provided inadequate notice of the non-statutory aggravating
circumstances it intended to offer during sentencing. Thornton does
not claim that the notice was not timely provided under OCGA
17-10-2, but maintains that his
sentencing trial was rendered fundamentally unfair by the state's
failure to provide dates and places where the alleged conduct took
We conclude that the state provided adequate
notice of its intent to offer evidence of an incident in which
Thornton allegedly pointed a gun at one Rod Johnson. While the
notice did not provide a specific date, the incident was described
with sufficient particularity to place Thornton on notice of when
the incident occurred.
The notice as to allegations of drug use and
sales presents another matter. The state notified Thornton only that
it intended to "offer evidence that Ronnie Thornton used, sold and
distributed illegal drugs." At the sentencing phase the state
offered the testimony of Joe Harper, a federal prisoner convicted of
drug trafficking. Harper testified that he observed Thornton using
drugs "a lot of times," and that, additionally, he had been with
Thornton when he sold crack cocaine. Harper's testimony was
unspecific as to dates and places.
It is permissible for the state to offer evidence
of unproven criminal charges during the sentencing phase of a death
penalty trial where the state timely notifies the defendant of its
intention to do so. Jefferson v. State,
256 Ga. 921 (8) (a) (353 SE2d 468)
(1987); Ross v. State, 254 Ga. 22 (5)
(a) (326 SE2d 194) (1985). We hold,
however, that notice of unproven criminal charges must be described
with enough particularity to alert the accused to what he must
defend against. The state failed to do that in this case. The notice
provided the defendant made reference to no incident or period of
time in which the state would attempt to show unproven, drug-related
activity. We note that notice of the state's intention to prove
prior convictions must be specific. See, e.g., Wright v. State,
255 Ga. 109 (7) (335 SE2d 857) (1985).
Notice of prior criminal activity for which there is no conviction
should be given equal deference.
(b) The trial court conducted a hearing out of
the presence of the jury to determine whether the testimony of a
number of witnesses, relating to non-statutory aggravating
circumstances, was reliable. The record supports the trial court's
findings of reliability.
(c) Thornton has failed to demonstrate how his
First Amendment rights were violated by the admission of his
statement referring to Artealia Lavant as "that bitch's baby."
23. Thornton argues the trial court committed
numerous errors in its charge following the sentencing phase of
(a) Thornton maintains the trial court erred in
not charging the jury that to find OCGA
17-10-30 (b) (2) as an aggravating circumstance, it must find
that Thornton was engaged in the commission of an aggravated battery
at the time the homicide occurred. While we do not agree that the
trial court's charge invited the jury to find an aggravated battery
based on injuries which were not contemporaneous with the murder, we
note that the jury found that the "murder . . . was committed while
the offender was engaged in an aggravated battery of the victim
prior to the death of the victim." (Emphasis supplied.) It is thus
clear that the jury was not misled by the trial court's charge.
Likewise, we conclude that the trial court's slip of the tongue in
instructing the jury that to find an aggravated battery it must find
that the defendant deprived the victim of a "part" of her body,
rather than a "member" of her body, did not permit the jury to find
this aggravating circumstance on less than is required by law. See
Baker v. State, 245 Ga. 657 (6) (266 SE2d
477) (1980). As the trial court charged the intent element of
aggravated battery requested by the defense and the charge was a
correct statement of the law, we find no error.
(b) Thornton did not request the trial court to
charge that the (b) (7) aggravating circumstance must have occurred
contemporaneously with the murder. The trial court's charge was a
correct statement of the law. The jury found that the "murder . . .
involved torture to the victim and depravity of mind." Nothing in
the trial court's charge suggested that the jury could find the
depravity of mind element based on Thornton's efforts to perform CPR
on the victim.
(c) The trial court's instruction on nonstatutory
aggravating circumstances was not error. The trial court did not err
in refusing to charge the jury that it could not consider
nonstatutory aggravating factors. Lee v. State,
258 Ga. 82 (7) (365 SE2d 99) (1988);
Zant v. Stephens, 250 Ga. 97, 100 (297
SE2d 1) (1982). The trial court did properly instruct the
jury that it could not impose the death penalty unless it found the
existence, beyond a reasonable doubt, of at least one statutory
(d) During deliberations the jury sent the trial
court a note stating that it needed "clarification of the Georgia
law pertaining to life in the penitentiary." The trial court asked
the jury to "restate" its question, and "elaborate a bit so I can
tell exactly what you're asking." The jury retired and subsequently
sent a note to the court stating that it withdrew its previous
request. Under these circumstances, the trial court did not err in
failing to charge the jury that a life sentence meant that Thornton
would spend the rest of his natural life in prison. Jones v. State,
263 Ga. 904 (1) (440 SE2d 161) (1994).
Compare Simmons v. South Carolina, 62 USLW 4509 (decided June 17,
(e) The trial court's charge did not ask the jury
to "weigh" the (b) (2) and (b) (7) aggravating circumstances. Nor
did the trial court's charge invite the jury to weigh the torture
and depravity of mind elements of aggravating circumstance (b) (7).
Aggravating circumstances are not invalid simply because they may
overlap to some degree. Castell v. State, 250
Ga. 776 (17) (301 SE2d 234) (1983).
(f) The trial court was not required to instruct
the jury to consider the specific mitigating circumstances requested
by Thornton. Taylor v. State, 261 Ga. 287
(11) (404 SE2d 255) (1991).
(g) The trial court did not err in instructing
the jury that it could "recommend" the death penalty when it was
clear from the charge that the recommendation would be binding on
the trial court. Holiday v. State, 258 Ga.
393 (19) (a) (369 SE2d 241)
(h) Thornton maintains the trial court erred in
refusing to charge the jury that it could impose a life sentence
based solely on mercy. The trial court's instructions satisfied the
requirement under Georgia law that the jury be informed it can
consider all evidence presented in both phases of trial; that the
jury be instructed to consider mitigating circumstances; and that
the jury be informed that it can recommend a life sentence even if
it should find one or more statutory circumstances beyond a
reasonable doubt. Ross v. State, 254 Ga., supra at (6). We find no
(i) The trial court did not err in failing to
charge the law requiring corroboration of an accomplice's testimony,
absent a request to do so. McCorquodale v. State,
233 Ga. 369 (2) (211 SE2d 577) (1974).
24. Thornton complains of a number of instances
of alleged prosecutorial misconduct during the state's closing
argument following the sentencing phase of trial. However, in only
one of these instances did Thornton make a contemporaneous objection.
5 We have reviewed the allegations
to which no objection was made and conclude that there is no
reasonable probability that any improper argument changed the result
of the trial. Todd v. State, 261 Ga., supra at (2) (a).
The one instance in which a contemporaneous
objection was made involved the district attorney's statement that
he expected Thornton's relatives to beg the jury "to not give what
is justice in this case," but that "no one will get to come in here
and beg for Artealia." Thornton objected to this statement on the
ground that it constituted impermissible victim impact evidence
under Sermons v. State, supra. We conclude that the district
attorney's argument was not victim impact evidence, and that these
limited remarks did not unduly prejudice Thornton.
25. The state provided evidence sufficient for a
rational trier of fact to find that Thornton intended to kill
Artealia Lavant. See Division 10, supra.
The evidence is sufficient to support both the
jury's finding that an aggravated battery occurred, In the Interest
of H. S., 199 Ga. App. 481 (405 SE2d 323)
(1991); Thompson v. State, 156 Ga. App.
1 (273 SE2d 894) (1980), and that the offense of murder was
committed while Thornton was engaged in the commission of this
aggravated battery. OCGA 17-10-30 (b)
(2). Further, the evidence shows a continuing pattern of abuse which
culminated in the fatal injuries inflicted on the child and supports
the jury's finding of the (b) (7) aggravating circumstance. Hall v.
State, 261 Ga. 778 (11) (415 SE2d 158) (1991).
David McDade, District Attorney, Michael J.
Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Matthew P. Stone, Rachelle L. Strausner, Assistant
Attorneys General, for appellee.
indictment alleged that the crimes occurred on May 7, 1991.
Thornton was indicted on May 22, 1991, and reindicted on August
19, 1991. On August 20, 1991, the state filed its notice of
intent to seek the death penalty. Thornton's trial began
September 21, 1992, and on October 20, 1992 the jury returned
its verdict finding him guilty of the crimes charged. The jury's
recommendation of death sentences was returned on October 22,
1992, and the trial court imposed sentence on November 10, 1992.
Thornton's motion for new trial, filed December 8, 1992, and
subsequently amended in August 1993, was denied on November 11,
1993. His appeal was docketed in this court on February 1, 1994.
The case was orally argued on May 16, 1994.
2 In Rayburn v.
State, 194 Ga. App. 676 (391 SE2d 780) (1990),
decided prior to Assad and Riddle, the child victim's grandmother
and a DFCS caseworker testified to statements the victim made
regarding acts of sexual abuse. Additionally the grandmother
testified in court that she had "observed her granddaughter as being
bothered, walking the floor, and not sleeping well . . . ." Rayburn
at 677. In this context the Court of Appeals noted that the Child
Hearsay Act contemplates the in-court testimony of a witness "about
what the child victim said and did relevant to the alleged sexual
contact." Id. This case does not support the state's proposition
that the Child Hearsay Act authorizes admission of the out-of-court
observations of a child as to what the victim did relevant to
abuse.In both Holden v. State, 187 Ga. App.
597 (2) (370 SE2d 847) (1988), and Tatum v. State,
203 Ga. App. 892 (2) (418 SE2d 152) (1992),
witnesses testified in court to statements which child victims had
made in their presence out of court. That these child victims were
not the victims named in the indictment is insignificant as this
testimony fell squarely within the parameters of the Child Hearsay
Act. Assad, supra; Riddle, supra.It does not appear that the issue
before us was raised in the final case relied on by the state, In
the Interest of T. M. H., 197 Ga. App. 416
(398 SE2d 766) (1990). Accordingly, that case does not stand
for the proposition asserted by the state.
takes the position that OCGA 17-10-1.1
and 17-10-1.2, which became effective
after his case was tried, have no bearing on this issue. See
Livingston v. State, 264 Ga. 402 (444 SE2d
748) (1994), which upheld the constitutionality of these Code
4 This Court
has held that "the pre-trial excusal of four prospective jurors who
were college students enrolled in schools outside the county" was
not error under 15-12-1 (a). Hall v.
State, 261 Ga. 778 (3) (415 SE2d 158) (1991).
It is not clear from the language of Hall whether the students were
excused, and their excusal affirmed, solely because of their status
as students, or because the fact that they attended college outside
the county would work a particular and individual hardship on them,
as opposed to college students who attended college within the
county. To the extent Hall would authorize the blanket excusal of
students based solely on their status as students, it will not be
argues that he preserved these issues for appeal by filing a pre-trial
Kenneth W. Krontz, Elizabeth A. Geoffroy, Barry J. Fisher, for
DECIDED OCTOBER 31, 1994.