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Whitaker v. State

The 10-year delay between trial and appeal did not violate the defendant's due process rights by preventing him from raising appellate issues, since trial counsel remembered sufficient details to reply to assertions of ineffectiveness and the claims the defendant would have raised absent the delay were meritless.

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After a jury trial, Appellant Tony Orlander Whitaker was found guilty of felony murder and cruelty to children. The trial court entered judgment of conviction for the felony murder and sentenced Appellant to life imprisonment. The cruelty to children charge merged into the felony murder conviction. Appellant appeals after the denial of a motion for new trial. 1. Construed most strongly in support of the verdicts, the evidence shows that on May 17, 1999, Shonda Sweet left her 13-month-old twin sons with Appellant while she ran errands for the day. At some point, Appellant phoned his godmother, Dorothy Williams, asking her to come over to his house. Ms. Williams, noticing that Appellant sounded upset, drove to Appellant’s home with her husband Dennis and her daughter Denata. Upon arriving, Appellant asked Ms. Williams to check on Darrius, one of the twins, because he could not awaken him. When Ms. Williams entered the bedroom, she saw Darrius lying face down on the corner of the bed and his lips were purple. Mr. Williams called 911, and Denata attempted to perform CPR on Darrius but had no success. Paramedics arrived and tried to revive the child. Darrius was then taken to the hospital, but he was declared dead on arrival.

Speaking with hospital staff and law enforcement, Appellant reported that Darrius had been ill and indicated that he had heard something fall and found the child on the floor next to the bed. Appellant stated that the child was breathing and that he placed the child back on the bed. Later, when he went to check on Darrius, he saw that the baby was not breathing and that he had been vomiting out of the mouth and nose.

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