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09/09/94 BRENDA LEE TURLEY v. STATE

September 9, 1994

BRENDA LEE TURLEY
v.
STATE



Appeal from Etowah Circuit Court. (CC-91-1158). Donald Stewart, TRIAL JUDGE.

Rule 39(k) Motion Denied October 21, 1994. Rehearing Denied October 21, 1994. Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Brenda Lee Turley, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. She was sentenced to life imprisonment.

The state's evidence tended to show that on September 17, 1991, Cady Lynn Phillips, a seven-week-old infant, died at the Children's Hospital in Birmingham, Alabama. An autopsy performed on the victim revealed extensive fractures of the skull, subdural hemorrhage, cerebral contusions, swelling of the brain, and hemorrhage of the thymus gland. The autopsy report stated that the victim died as a result of blunt force trauma to the head.

Lori Phillips, the victim's mother, testified that on September 17, she and her three children -- Angel Hodge, Keisha Phillips, and Cady Lynn Phillips -- went to the appellant's house. Turley's two children, David and Candy, were at the house. Sometime in the afternoon the appellant asked Phillips to go to the store. She suggested that her husband, Donnie Turley, would take Phillips to the store while she watched the children. When Phillips left to go to the store, Cady was on Candy's bed and Candy, Keisha, and Angel were in Candy's bedroom. Phillips testified that when she returned from the store, Cady was in her car seat, which was on one end of the couch, and the appellant was seated at the other end of the couch feeding her son, David, who has cerebral palsy. She testified that she thought this was odd because the appellant usually fed David in his chair at the table. Phillips said she went to the table and started making sandwiches for the children and that Cady began to whine. According to Phillips, the appellant jumped up and grabbed Cady and said that she was choking on a penny. Phillips took Cady from the appellant, reached into her mouth, and retrieved a penny. Phillips said that she knew Cady could not pick up a penny and put it in her mouth. Cady began to turn pale. Phillips said that she went to telephone the paramedics but that the appellant would not let her use the telephone. Phillips then ran out of the house and to a nearby telephone behind the appellant's house, from where she called paramedics.

Mel Colgrove, a paramedic with the Gadsden Fire Department, arrived on the scene and examined Cady. Mr. Colgrove testified that the Cady's pulse was normal but that she was having difficulty breathing. Colgrove also testified that Cady was pale and lifeless.

After arriving at the hospital, Phillips notified the nurses that Cady's head was swelling. Nurse Sylvie Maltby testified that she then felt Cady's head and that it felt "crunchy" on both sides like a "crushed eggshell." After being X-rayed, Cady was transported to the Children's Hospital in Birmingham, Alabama, where she died later that same day.

Angel Hodge, the victim's four-year-old sister, testified that she remembered being in the back room of the appellant's house, coloring, when the appellant came in and got the victim and took her to her car seat. She also testified that she then heard the victim crying and that she peeked around the door. Angel testified that when she did so she saw the appellant hitting the seven-week old infant with a wooden toy and with her fist. Angel testified that the appellant saw her and threatened to kill her if she told anyone. Angel said that she was afraid and that she began to have bad dreams. Angel testified that she told her great-grandmother because she was afraid.

I

The appellant contends that the trial court erred in allowing into evidence testimony concerning a statement made by the appellant because, she says, the statement was induced by a promise or offer of reward. She also contends that although she was informed of her Miranda *fn1 rights she did not have the mental capacity to understand those rights when they were read to her.

The appellant field a motion to suppress the inculpatory statement and the circuit court held a suppression hearing on the motion, at which the following evidence was presented. Officer Billy Phillips and Detective Sheila McClure of the Gadsden Police Department interviewed the appellant and testified at the hearing. Officer Phillips testified that he read the appellant her Miranda rights and that the appellant acknowledged that she understood her rights. Detective McClure then read an advisement of rights form to the appellant. Detective McClure told the appellant, "I'm going to read your rights. I want you to be able to understand each one of these rights. And if you have any questions you stop me and talk to me." The appellant was also read her waiver of rights at the bottom of the form and acknowledged that she understood the waiver. She then signed the waiver form. Officer Phillips testified that the appellant appeared to understand her rights. Officer Phillips stated that he did not threaten or coerce the appellant in any ...


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