ALBANY, Ga. — The Georgia Supreme Court unanimously upheld the murder conviction and life sentence of a Dougherty County man who was found guilty of killing his girlfriend’s 13-month-old son.
Tony Orlander Whitaker was appealing his murder conviction and life term on the grounds that his due process rights were violated when it took 10 years to have a hearing on his motion for appeal.
In the opinion written by Presiding Justice Carol Hunstein, the court upheld the sentence saying that, despite the delay, the high court found it did not damage — or prejudice — the man’s case. “Therefore, Appellant’s due process rights were not violated by the 10-year delay between trial and appeal,” the opinion released Tuesday says.
Whitaker was found guilty by a jury in January 2000 of felony murder and cruelty to children and sentenced to life in prison. In his appeal, Whitaker claimed the evidence against him was all circumstantial and that the state failed to exclude every possible alternative reason for the baby’s death.
The high court’s opinion states, “We conclude that the evidence is sufficient to have authorized a jury to find that the State excluded all reasonable hypotheses except that of Appellant’s guilt, and to have authorized any rational trier of fact to find Appellant guilty beyond a reasonable doubt.”
Court records state Whitaker argued his case had been damaged by the 10-year delay because his counsel couldn’t remember details of the case that were critical to his appeal on the grounds that his attorney had been ineffective for failing to raise a pre-existing medical condition the victim had and for failing to object to the prosecutor’s use of a Styrofoam head in re-enacting for jurors how the baby had been injured.
“However, a thorough review of the transcript of the hearing on the motion for new trial reveals that trial counsel remembered sufficient details of the case to reply to Appellant’s assertions of ineffectiveness,” the opinion says.
Whitaker’s trial attorney testified that the defense’s own expert agreed the baby’s death was a homicide and not due to anything else. For this and other reasons, “the errors that Appellant claims he would have raised on appeal are without merit (and) there can … be no prejudice in delaying a meritless appeal,” the opinion says.
According to the court, on May 17, 1999, Shonda Sweet left her twin 13-month-old sons, Darrius and Tarrius, with Whitaker, who was her live-in boyfriend, while she was running errands.
Sweet told the court that when she left, the twins were clean, dressed and sleeping in the middle of the couple’s bed. On her way home that evening, a police officer called Sweet and asked her to come to Phoebe Putney Memorial Hospital, where she learned that Darrius was dead.
Court transcripts show that, earlier in the day, Whitaker had called his godmother, Dorothy Williams, and asked her to come to his duplex. When she arrived, she found Darrius lying face down on the corner of the bed with fluid coming from his nose.
Williams noticed that the baby’s lips were purple, and her husband called 911. At some point, Whitaker told him he’d given Darrius a bottle, laid the child down and that he had vomited. After cleaning up the baby, he’d noticed something was wrong and called Williams.
Paramedics testified they were unable to revive the baby, and one said he was “frustrated” because no one at the scene would claim responsibility for the baby and seemed to have a “nonchalant” attitude. A police officer testified that when a doctor told Whitaker the baby was dead, he was “very flat, very calm.” A child protective services worker, who had been summoned by hospital staff, testified that when she asked Whitaker why he’d called his godmother instead of paramedics, he told her he’d been outside smoking, heard a loud noise and came inside to find Darrius crying, according to court records.
The forensic pathologist who performed an autopsy on the child testified at trial that there was swelling and a “patterned” injury on the back of the baby’s head of three separate vertical lines that suggested he had been slammed into an uneven surface. The bruises on his forehead indicated “grip marks where somebody grabbed the child’s head and squeezed vigorously, or knuckle marks where somebody rapped a knuckle on the head, or even knuckle marks in terms of punching.”
The baby had skull fractures, damage to his brain, including hemorrhages and swelling of the brain, and fresh bruises along his buttocks, back and head believed to be caused by blunt force trauma from “shaking and impact.”
The pathologist stated the baby would have died within 30 minutes and the injuries were inconsistent with a simple fall off of the bed, court records show.