Keller v. State

308 Ga. 492

842 S.E.2d 22

KELLER

v.The STATE.

S20A0006

Supreme Court of Georgia.

Decided: April 20, 2020

Kathryn E. Rhodes, for Appellant.

Julia F. Slater, District Attorney, George E. Lipscomb II, Assistant District Attorney; Christopher M. Carr, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.

Boggs, Justice.

Randall Guy Keller was convicted of felony murder and related crimes arising out of the beating death of his ex-wife's two-year-old son, William Powell. He appeals, asserting numerous claims of error, including ineffective assistance of counsel, the trial court's rulings on motions before and during trial, several evidentiary rulings, and alleged bias on the part of the trial judge. For the reasons stated below, we affirm.¹

1. Construed in the light most favorable to the jury's verdicts, the evidence at trial showed that at the time of the murder, Keller, who was separated from his second wife, was living in Columbus with his first wife, Ashley Keller, their two daughters, six-year-old T. K. and five-year-old J. K., Ashley's son from another relationship, two-year-old Powell, and Ashley's brother, Dustin Burwell. Keller also had another son from his second marriage, who visited from time to time. Keller disliked Powell, treated him differently from his daughters, and verbally abused him.

In the first week of June 2013, Keller lost his job and learned that he was going to need a lawyer for a custody dispute with his second wife over their son. On June 6, 2013, Keller wrecked his car. That afternoon, he and Ashley argued about his treatment of Powell, and Keller kicked and damaged a door.

At approximately 2:00 a.m. on June 7, Keller went outside to confront his neighbors with regard to a drug deal that he believed had taken place in front of his house. After a short time Keller came back in the house and told Burwell that "stuff was going down" and he needed help. Burwell went outside with him, and they confronted the neighbors. One neighbor, Regina Mathis, was awakened by her daughter, who told her that there was a man in the yard. Mathis looked out, saw Keller enter her truck and attempt to break into another car, and called the police. When the police arrived, they told everyone to go back in their houses and not talk to each other. Keller was "very agitated" and "acting crazy." Mathis later discovered that a check stub and other papers were missing from her truck.

After the police left, some friends of Keller stopped by and stayed for about half an hour, and all the children were acting normally. After the visitors left, Ashley put the children to bed and began watching a movie. Powell got out of bed and came into the living room while Ashley was watching the movie, and she took him back to bed and checked on the two girls, one of whom was still awake. Later, she checked on the children again and they all were asleep, and she went to bed around 3:30 a.m., while Keller, who "did not sleep much" due to his ADHD, stayed up "doing stuff in the house."

Keller's older daughter, T. K., heard a noise that woke her up, and she went to Powell's room, where Keller was standing in the doorway and angrily told her to go back to bed. T. K. later made a picture book with a counselor, in which T. K. recounted that she heard someone go into Powell's room and heard Powell choking, that she then went to Powell's room and Keller was there, that Keller told her to go back to bed, and that she saw Powell lying motionless on the floor.

Burwell was asleep when Keller, distraught and in tears, woke him up and told him that when Keller walked into Powell's room, Keller had found Powell lying there unconscious. Burwell saw Powell on the living room floor; he was cold to the touch, his lips were turning blue, and he was completely motionless. At around 4:00 a.m., Burwell woke up Ashley and told her that Powell was not breathing; Ashley ran into the living room and saw Powell on the floor with Keller performing CPR. Ashley called 911 and stayed on the phone until the paramedics arrived at 4:30 a.m. Powell was in full cardiac arrest ; the paramedics revived him and he was immediately transported to Columbus Regional Medical Center and placed on life support.

Doctors at Columbus Regional Medical Center performed a CT scan on Powell, which they initially read as normal. However, Powell was not behaving normally, so the doctors transferred him to Scottish Rite Hospital in Atlanta, where doctors re-examined the CT scan and concluded that it showed damage to Powell's brain and a skull fracture.

At Scottish Rite, Ashley spoke with police detectives and one of Powell's physicians, Dr. Tamika Bryant, about what had happened to Powell. Dr. Bryant told Ashley that Powell had a skull fracture and "it's not an accident." Ashley never told Keller that Powell had a skull fracture and did not speak to him about Powell's other injuries. Keller gave Ashley two different accounts of how and where he found Powell and told her not to speak to her family about what was going on.

On the same day, Brandyn Mullen rode back to Columbus with Keller and another man, Frank Smith, to pick up some of Powell's things. Mullen asked Keller what happened, Keller responded that "snitches get stitches," and he told Mullen there would be no snitching. When they arrived at the house, Keller immediately began using cleaner to clean Powell's room, even though the other rooms in the house were "a mess" or "normal kids’ rooms." Keller was cold, anxious, and fidgety; over the course of the day he told Mullen four different stories about where and how he found Powell. Keller referred to Powell as "the body" even though he was still alive, did not visit Powell in the hospital, and said he was "sick and tired of Ashley" and was "thinking about taking the kids and going down to Florida."

Detectives obtained a search warrant and searched Keller's house on the next day, June 8, while both Keller and Frank Smith were present. Detectives found marijuana, a smoking device, and a digital scale, as well as check stubs with Mathis’ name on them. Detectives also obtained a warrant authorizing them to search Keller's phone, which revealed Google searches at 4:12 a.m. and 2:50 p.m. on June 8 for "how many pounds of pressure to cave a human skull."

A second CT scan at Scottish Rite showed the skull fracture as well as progressive, significant damage to Powell's brain from lack of oxygen, bleeding on the brain, and brain herniation through the base of the skull. As a result of these injuries, Powell was taken off life support and died on June 9, 2013.

Keller was arrested for Powell's murder. On June 11, Keller made a telephone call to Ashley from the jail, in which he said that "it was an accident" and that Keller "liked to throw the kids on the couch" but "this time [Powell] didn't respond." At Keller's trial, a recording of that call was played for the jury.

Dr. Bryant, an expert in child abuse pediatrics, testified at Keller's trial that in her examination of Powell, she observed in addition to the brain injuries a spinal injury, multiple impacts to the back and both sides of his head, and bruises on his head and neck as well as the rest of his body. She further testified that these injuries, absent some explanation, were consistent with child abuse, were not compatible with falling out of bed or falling down, and were the result of multiple blunt force trauma, which was consistent with Powell's head being slammed into something hard and flat like a hardwood floor.

Dr. Lora Darrisaw, the GBI forensic pathologist who performed the autopsy on Powell, noted multiple impact injuries to his head, including the skull fracture. Dr. Darrisaw testified that Powell's death was caused by multiple blunt force trauma consistent with his head being slammed into a flat, broad surface, that the injuries were inconsistent with an accident in the home, and that the manner of death was homicide.

Keller testified at trial and admitted that he "teased" Powell, acknowledged the searches on his phone regarding the pressure needed to fracture a human skull, and admitted that the marijuana and scales were his. He also testified that he suffered from post-traumatic stress disorder (PTSD), that he took medications for that condition, that he was not supposed to drink alcohol or use marijuana while taking the medications, and that on the night of the incident he was not sleeping and was drinking alcohol and smoking marijuana.

Although Keller has not challenged the sufficiency of the evidence to support his convictions, as is this Court's practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Keller was guilty of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his first three enumerations of error, Keller alleges that his trial counsel was ineffective in various respects. To prevail, Keller must demonstrate both that the performance of his lawyer was professionally deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to show either deficiency or prejudice, this Court need not examine the other prong of the Strickland test. See Palmer v. State , 303 Ga. 810, 816 (IV), 814 S.E.2d 718 (2018).

To prove deficient performance, Keller must show that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." (Citation omitted.) Romer v. State , 293 Ga. 339, 344 (3), 745 S.E.2d 637 (2013). And to prove prejudice, Keller "must show that...