Court also rules in computer porn case from Catoosa County
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WEST V. THE STATE (S14A0009)
The Supreme Court of Georgia has unanimously upheld a man’s convictions for malice murder and other crimes for beating to death his girlfriend’s 18-month-old daughter and physically abusing her other two children.
In this high profile case from Hall County, Stephen Clark West was convicted in August 2012 of murder, aggravated assault, and cruelty to children in the first degree for killing Kaylee Kipp, daughter of Deanna Renee Kipp, and for severely abusing Kipp’s 7-year-old and 4-year-old daughters, S.K. and A.K. The judge sentenced West to life without the possibility of parole.
In a separate trial, Deanna Kipp was convicted in November 2012 of felony murder and child cruelty for her role in her daughter’s murder and the abuse of her other children. She was sentenced to life plus 35 years in prison. In November 2013, the Georgia Supreme Court upheld her convictions but remanded her case to the trial court to correct sentencing errors.
According to the evidence, on the afternoon of June 12, 2011, emergency responders found Kaylee’s body in her “Pack ‘n Play” crib at the Gainesville apartment that her then 24-year-old mother shared with West, who was 22. Kaylee had been dead for hours and rigor mortis had set in. The medical examiner determined that skin lesions at the toddler’s diaper line were most likely caused by postmortem insect activity. Examination of her body revealed several possible causes of death. According to the medical examiner who performed the autopsy, Kaylee was struck at least six times in her head and face, and the bruises were consistent with human knuckle marks from a closed fist.
Pooling of blood at the front of her body was consistent with being pressed face down against the pad of her crib. The medical examiner concluded that multiple injuries caused Kaylee’s brain to undergo severe swelling and that the little girl died not only as a result of blunt force trauma to her head but also as a result of asphyxiation caused by having her face pressed down into the bottom of her “Pack ‘n Play.” She might have survived if she had received immediate medical attention to reverse the swelling in her brain, and “her suffering was likely prolonged,” according to this Court’s opinion upholding Kipp’s convictions.
Following Kaylee’s death, S.K. and A.K. were taken to the Edmundson-Telford Center for Children for physical examinations and forensic interviews. They too had sustained a number of gruesome injuries. A nurse practitioner found cigarette burns on S.K.’s wrist and elbow and a large bruise on her backside, which the child said was from being “spanked really hard.” The younger child had multiple bruises in various stages of healing. Both her eyes were black like “raccoon eyes” – called periorbital bruising – and her right ear was bruised, all consistent with someone pulling or yanking her hair. She also had bruising on the back of her neck as a result of force being applied. The older child testified at West’s trial that West spanked the girls with a belt most nights, pinched them and pulled them by their hair. She described one incident when he not only spanked her but shoved her face into a pillow so she could not breathe. The girls were placed in a temporary foster home where they told the foster mother that the night before Kaylee’s body was found, West had spanked them. S.K. told the foster mother that also that night, she had heard Kaylee crying and being spanked downstairs. She said that her mother made her go check on Kaylee the next morning. The little girl found her baby sister cold to the touch. She later told another foster mother that Kaylee was thrown into her crib “like a basketball.” She related how she had found Kaylee dead and expressed fear that she or A.K. would also die. Both girls had recurring nightmares.
Kaylee’s blood and saliva were found on a pair of denim shorts found in the master bedroom that evidence later showed belonged to West. The location of Kaylee’s blood and saliva on the shorts suggested West was holding her against his lap while punching her.
Police interviewed West twice after finding Kaylee’s body and noted a number of inconsistencies in his statements. He claimed he was “probably a little drunk,” “blacked out,” and did not remember touching Kaylee, but he was “so sorry” if he did.
Kipp admitted to an investigator that she had seen West spank the children with significant force, put his hands over their mouths, and force Kaylee’s face into the pad of her crib.
In his appeal, West argued the evidence was insufficient to convict him, the State improperly attacked his right to remain silent, and his trial attorney had rendered “ineffective assistance of counsel” in violation of his constitutional rights.
In today’s opinion, written by Chief Justice Hugh Thompson, the high court has rejected all his contentions. “The evidence was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder and cruelty to children,” the opinion says.
Attorneys for Appellant (West): Steven Miller
Attorneys for Appellee (State): Lee Darragh, District Attorney, Lindsay Burton, Chief Asst. D.A., Kelley Robertson, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Ryan Kolb, Asst. A.G.
CASTRO V. THE STATE (S14A0300) and PARKER V. THE STATE (S14A0301)
In another child killing involving a toddler, the Georgia Supreme Court has unanimously upheld the murder convictions and life prison sentences given to Eric Castro and Heather Brittany Parker for the 2012 beating death of Parker’s two-and-a-half-year-old daughter, Kailee Parker.
Similar to the facts in West v. the State (S14A0009), Castro was Parker’s live-in boyfriend. The couple shared an apartment in the Silver Creek community of Rome, Georgia, in Floyd County. In addition to Parker’s daughter, the couple had twins together, who were less than a year old.
Similar to the West case, the victim – also named Kailee – died from multiple injuries to her head. Medical evidence revealed that the child had been squeezed with a “significant amount of force,” causing multiple bruises to her chest; that she had been body slammed against a flat surface such as a floor; and that she had been hit at least five times in the head with substantial force shortly before her death. There were signs of previous abuse.
Also similar to the West case, Castro was sentenced to life in prison without the possibility of parole after he was convicted in a 2013 jury trial of malice murder, felony murder, aggravated assault, aggravated battery and cruelty to children. Parker, meanwhile, was convicted of felony murder and child cruelty, and sentenced to life in prison, with the possibility of parole.
According to the facts of the case, five months after Parker gave birth to Kailee in 2009, the then teenage mother sent Kailee to live with her paternal aunt where the baby remained for the next two years. In March 2012, Parker picked Kailee up one day for a visit and never brought her back. Castro, 27, was living with Parker and their infant twins when Parker brought Kailee to live with them. The couple frequently argued, after which Castro often left and stayed with his parents in the Garden Lakes community. One such argument ensued after Castro hit Kailee in the face, leaving a bruise under the toddler’s left eye. Castro left, but a week later, the couple reconciled and he moved back in. The Monday before Kailee died, Parker testified he again slapped the toddler in the face while they were sitting in a Wal-Mart parking lot. The couple argued, and he left for his parents’ house. According to State prosecutors, Castro treated Kailee differently than his own biological twins, often hitting the little girl in the face or on her legs instead of spanking her on her diaper. Later that week, the couple again reconciled and Parker brought Castro back to her apartment. On Thursday, he agreed to stay with Kailee and the twins while Parker took her brother to juvenile court. Castro later testified that while Parker was gone, Kailee began throwing up. While Parker saw no signs of vomiting when she returned, she did testify that Kailee was “really clingy.” She said she noticed bruising on the little girl’s shoulder and back, and when she asked about it, Castro told her Kailee had fallen against the television. The couple fought, and Castro left.
The next morning, Parker took her daughter to her aunt’s house. While Kailee was running up the steps to the house, she fell and hit her forehead against the brick steps, Parker and her aunt testified. Although the fall was minor, when Kailee’s aunt went to visit the child the next day at Parker’s and Castro’s home, she noticed Kailee had a “goose egg” on her forehead and her eyes were blackened. Early Saturday morning, Parker picked up Castro from his parents’ home and brought him back to her apartment. She testified that the toddler acted “depressed” all day and threw up when they got home from visiting her aunt. Castro testified that Kailee acted “distant” on Saturday and seemed “weak.” Parker wanted to take Kailee to the hospital emergency room, but Castro objected, fearing the Department of Family and Children Services would get involved due to the child’s bruises. Sunday Kailee continued to throw up and would not eat, although the couple kept trying to feed her. That evening, Castro struck Kailee after claiming she had stuffed too much food in her mouth. Sunday night, he tied the little girl up in a sheet and made her sleep on the floor. Parker testified that during the night, she heard a thumping noise and awoke to find Castro standing over Kailee. She made Castro leave the bedroom and locked the door.
Late Monday morning, June 25, 2012, the couple tried to feed Kailee once more, after which she made a gurgling sound and vomited in her bowl. Castro told Parker that Kailee needed to go to the hospital, but she refused to take her because she had an appointment with a counselor. Both Parker and Castro testified Kailee was crying to go with her, but the counselor had asked her not to bring the child to the appointment so Parker left Kailee with Castro. Castro later testified that after Parker left, Kailee threw up on the couch and floor. As he pushed her toward the bathroom, he said her legs were stiff and she acted drunk. He said at trial that he thought the toddler was “faking it.” While at the counselor’s, Parker got a call from Castro saying something was wrong with Kailee. A witness who saw Castro carrying the limp little girl to the house of Parker’s aunt and stopped to help, testified that the child was covered in bruises. He called 911 and flagged down another man who also stopped his car and began performing CPR on the diaper-clad child. But she had no pulse and soon after was declared dead. According to the autopsy, Kailee died from blunt force trauma to the head, which fractured her skull and caused her brain to swell. The medical examiner testified that the child probably had been slammed against a broad surface such as a floor, door or wall; her head had been hit five times with significant force. Among other injuries, she had bruises on her cheek, chin and jaw, and a rug burn injury that could have come from someone dragging her.
In their joint appeal, both Castro and Parker argued the evidence against them was insufficient. In addition, Castro argued the trial court erred by allowing into evidence autopsy photos of Kailee’s skull. Parker additionally argued that the trial judge erred by reading the definitions for the separate felony counts against her at the same time it read to the jury instructions on the felony murder counts.
But in today’s 7-page opinion, written by Justice Harold Melton, the high court has rejected all their arguments.
“The evidence was sufficient to enable a rational trier of fact to find Castro guilty of all the crimes of which he was convicted beyond a reasonable doubt,” the opinion says. “The evidence recited above was also sufficient for a rational trier of fact to find Parker guilty of the crime of which she was convicted beyond a reasonable doubt.”
Attorneys for Appellants (Castro): Clarence Patton; (Parker): Robert Rutledge
Attorneys for Appellee (State): Leigh Patterson, District Attorney, Kay Ann Wetherington, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Vicki Bass, Asst. A.G.
THE STATE V. COSMO (S13G1070)
The Supreme Court of Georgia has reversed part of a Georgia Court of Appeals decision and reinstated the charge of computer pornography against a U.S. serviceman.
Under today’s unanimous ruling, written by Justice Robert Benham, when Dennis Cosmo is retried in Catoosa County for various criminal charges involving his alleged attempt to solicit a child for a sexual encounter, he may also be retried on the count of the indictment charging him with violating the state’s “Computer or Electronic Pornographic and Child Exploitation Prevention Act.” The Court of Appeals had thrown out his conviction for violation of this statute on the ground that the State failed to prove he had directly communicated with someone he believed was a child, as the statute requires.
But in today’s decision by the high court, “we conclude that direct communication was not required for a conviction pursuant to the crime as charged in this case, and we reverse the holding of the Court of Appeals as it relates to Cosmo’s conviction for violation of this statute.”
According to the facts of the case, Cosmo was a staff sergeant in the 75th Ranger Regiment who was about to deploy for a tour in Afghanistan when he began looking online for a sexual encounter. Detective Dave Scroggins was working as an undercover officer for the Northwest Georgia Crimes Against Children Task Force when on March 10, 2010, he posted an ad on “craigslist” on the Internet. Using the name of “Amber Hill,” Scroggins wrote in the personals section: “Hey guys, we’re back in town and looking forward to return engagements with our old friends…drop us a line if you’re interested.” On March 12, Cosmo responded in an email that said: “I am Denny, 27 years old in the army. I am deploying soon and looking to have some kinky fun before I go. Sound interesting?” The detective, as “Amber,” responded that “the girls and I provide a rather unique service” that sometimes helps “our friends take things beyond the legal limit.” Cosmo asked for specifics and Amber replied, “I have three very unique daughters, and we (or one of us) can certainly provide almost any desired service…Understand that our services are not free.” Cosmo wrote he was interested in “multiple girls in one bed” because he had “never been with two women at once.” Specifically he said he was interested in “the mother-daughter combo. Or maybe sisters.”
After Amber disclosed that she was 32 and her daughters were 14, 12, and 9 years old, she asked Cosmo to explain “exactly what you want.” Cosmo replied, “you, definitely, and leaning towards the 14 yo depending on price. Maybe even 12 if I can afford three….Have she done this before or the things I mentioned in the email and knows what to expect with this meet?” After the agent replied that the “girls are very experienced,” Cosmo provided explicit details of what he would like Amber and her 14-year-old daughter, “Brooke,” to do, including sexual acts using “her small hands.” Cosmo and Amber then arranged to meet in Ringgold and Cosmo confirmed with Amber that he was “good with just you and [Brooke]….” A woman posing as “Amber” then talked with Cosmo by telephone to arrange their meeting in more detail as Cosmo traveled from the Fort Benning area near Columbus to Ringgold. During subsequent phone conversations, Cosmo asked the woman to meet alone with him first before she brought her daughter and said he was “not comfortable with this underage thing.” In a text message he wrote, “just you and me though right?” “Amber” texted back that she sensed “indecision” on his part regarding her 14-year-old daughter; “that is not the type of client I feel most comfortable with;” and “if I got the wrong impression I need to make other arrangements.” Twenty minutes before they were scheduled to meet, Cosmo again texted, “just you and me right?” When Amber called him, he reiterated, “I’m not too comfortable with us, with the, the underage thing.”
When Cosmo arrived at the Quality Inn where they agreed to meet, he was arrested. He later testified at trial that a desire for underage sex “wasn’t even in my mindset until Amber introduced it.” He said he went along with it to keep Amber interested in him because she was the only person communicating with him online the week before he was scheduled to deploy to Afghanistan. He said he “gave her a response that I expected she wanted to hear.”
In March 2012, the jury convicted him of computer pornography, attempt to commit a felony and three counts of criminal solicitation. The jury acquitted him of two counts of attempt to commit a felony, and the court sentenced him to 10 years, with the first year to be served in a probation detention center, and the remainder on probation. Cosmo then appealed to the Georgia Court of Appeals, which reversed the lower court’s judgment, agreeing with Cosmo that “because the State’s evidence failed to show any interaction between himself and a child or a person he believed to be a child, insufficient evidence supports his conviction.” The appellate court also ruled that Cosmo deserved a new trial because the trial court refused to instruct the jury on his defense of entrapment. The State then appealed to the Georgia Supreme Court, which agreed to review the case to determine whether the Court of Appeals erred in determining that the version of the Computer or Electronic Pornographic and Child Exploitation Prevention Act time required the State to prove that a defendant directly interacted with a child or a person believed to be a child in order to convict him.
In today’s opinion, Justice Robert Benham writes that the Court of Appeals was wrong, and “that portion of the Court of Appeals opinion finding Cosmo may not be convicted of that count of the indictment charging him with violating Official Code of Georgia § 16-12-100.2 (d) (1) by attempting to solicit a child, because the evidence shows he did not interact directly with a person he believed to be a child, is reversed. Upon remand of the case to the trial court, Cosmo may be retried on this count of the indictment.”
The wording of the statute in effect at the time stated: “It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service…to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act…that by its nature is an unlawful sexual offense against a child.” The Court of Appeals reversed Cosmo’s conviction for this offense on the ground that the wording of the statute “cannot be construed to encompass his communication with only an adult or person known to be an adult.”
“The Court of Appeals, however, failed to consider that this code section makes it a crime to ‘attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child’ to commit an illegal act enumerated in the statute,” today’s opinion says. The statute “makes the attempt to do certain prohibited acts one of the ways in which the statute may be violated.” And “[c]ommunication with a person the defendant believes to be the parent of a child who is the object of the defendant’s attempt to solicit satisfies the intent element of the offense.”
While Cosmo argued solicitation requires direct communication with a minor, “We disagree,” the opinion states. “Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by Official Code of Georgia § 16-12-100.2 (d) (1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child.”
“The second element of criminal attempt with respect to the crime charged – the taking of a substantial step toward the commission of soliciting a child – is also established in this case,” the opinion says. He traveled a good distance to meet the child and when taken into custody, he had on him $300 in cash, condoms, and a receipt for the purchase that day of a male performance enhancement agent. “This evidence would entitle a jury to find Cosmo had engaged in substantial steps to establish criminal attempt of the crime charged.
Today’s ruling does not affect the Court of Appeals’ remand of Cosmo’s case for a retrial on whether he was entrapped.
Attorneys for Appellant (State): Herbert “Buzz” Franklin, District Attorney, Alan Norton, Asst. D.A.
Attorney for Appellee (Cosmo): Adam Hames
THOMPSON V. THE STATE (S14A0235)
The Supreme Court of Georgia has upheld the murder conviction and life prison sentence of a man convicted in Barrow County of shooting and killing his mother with a crossbow.
Rodney Thompson argued in his appeal that the evidence shows the shooting was an accident, not murder; that the trial court was wrong in refusing to allow his attorney to introduce evidence that would show he had an IQ of only 67 and therefore lacked the mental capacity to operate a crossbow properly; that evidence of his prior threat to kill his mother should not have been admitted at trial; and that statements he made in front of an investigator violated his Miranda rights and also should not have been admitted at trial.
But in today’s unanimous decision, Justice David Nahmias writes for the Court that, “we find no merit to these contentions, and we therefore affirm” the lower court’s ruling.
According to the facts of this high-profile case, in 2008, 39-year-old Thompson was living with his mother, Marjorie Lynch, 64, in Bethlehem, GA, along with his sister, her three children, and a cousin’s child. About a week before she was killed, Lynch told her son he would have to start helping out with the household bills and pay rent. Otherwise he would have to leave. The morning of June 5, 2008, Lynch called 911 and said her son had stabbed her in the back. Deputies from the Barrow County Sheriff’s Office arrived five minutes later and found Thompson smoking on the porch. When asked if he had stabbed his mother, he first said no, but when asked again, he said that he had. Officers handcuffed him and put him in the back of a police car. When they entered the home, they found Lynch lying on her bedroom floor near a phone, with a crossbow “bolt” – similar to an arrow – sticking out of her back. She was still alive and told one of the deputies she’d been asleep when she was shot. One of the paramedics who arrived later on the scene heard her mumbling, “he shot me.” Lynch was taken by helicopter to Grady Memorial Hospital in Atlanta, but she died during surgery from blood loss.
During a search of Thompson’s bedroom, investigators found a crossbow and two bolts. The crossbow had a “safe mode” and a “fire mode;” it was in fire mode. A sales associate from the Bass Pro Shop later testified that Thompson had purchased the crossbow two to eight weeks before Lynch’s death. He explained that Thompson’s crossbow required 150 pounds of pressure to cock it. To make the crossbow fire, it had to be manually switched to fire mode, because it could not be cocked while in safe mode.
Thompson was taken to the sheriff’s office where he was read his Miranda rights and waived them. A recording of part of his interview was later played for the jury. Thompson said he had gone up to his mother’s room to show her his crossbow, although she was asleep. When he walked in, the loaded crossbow accidentally went off and hit his mother in the back. He explained that this was the first time he had used the crossbow, which he had bought for hunting, although he did not have a hunting license. He said his mother sometimes asked him to pay rent and sometimes that made him angry, but he said this particular time he was not angry. Asked why he had not helped his mother after shooting her, he said he had heard her calling 911 and went outside to smoke a cigarette. After about 40 minutes of interrogation, Thompson cut it off, saying, “I’m not going to say anything…I told you everything already.” Investigators continued to question him, but the State later conceded that the remainder of the interview would probably be inadmissible and did not present it at trial. After the interview, Thompson was moved to a conference room where he was guarded by investigator Matt Guthas. While Guthas didn’t ask him any questions, Thompson began talking. Guthas wrote down the phrases he could understand on a napkin and later testified he overheard Thompson saying such things as, “got into this thing with my mom this morning” and “shot her in the back.”
During the trial, the State introduced certified documents showing that in 1994 Thompson had pleaded guilty to making terroristic threats against his mother. Following the trial, the jury convicted Thompson of felony murder and aggravated assault, and he was sentenced to life in prison.
Today’s opinion responds to each of Thompson’s enumerated errors, finding no merit in any of them. “When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to reject Appellant’s accident defense and find him guilty beyond a reasonable doubt of felony murder based on aggravated assault,” the opinion says.
Attorney for Appellant (Thompson): Kathleen Anderson
Attorneys for Appellee (State): James Smith, District Attorney, Deborah Wilbanks, Chief Asst. D.A., Samuel Skelton, Asst. D.A., Samuel Olens, Attorney General, Patricia Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Katherine Iannuzzi, Asst. A.G.