Eskew v. State
309 Ga. App. 44
Ga. Ct. App.2011Background
- Eskew cared for 6-month-old D.O. at Eskew’s home on April 2, 2008; D.O. was seriously injured and later treated at two hospitals with severe trauma; Eskew was indicted on two counts of aggravated battery for shaking and skull fracture; Eskew testified the injury occurred when he dropped the baby, denying violent shaking; the trial included medical evidence from treating physicians and Eskew’s experts; the jury convicted Eskew on both counts and the court sentenced accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuance denial preservation | Eskew argues lack of time to review medical records harmed defense | Eskew contends court abused discretion by denying continuance | No abuse; trial court within discretion |
| Request for reckless conduct charge | Eskew orally requested a reckless conduct charge | Stonaker rules allow no error without written request | No error; charge refused per Stonaker rules |
| Mistrial on expert testimony | Testimony about unproduced late examination tainted trial | Mistrial not warranted; evidence cumulative | No abuse of discretion; no mistrial |
| Merging of convictions for sentencing | Two aggravated battery counts should merge | Evidence showed two separate acts; no merger required | Convictions not merged; valid for two acts |
| Ineffective assistance of counsel | Counsel unprepared due to late records; prejudice shown | Record supports counsel’s coordination with expert; no prejudice shown | No ineffective assistance; no prejudice shown |
Key Cases Cited
- Stonaker v. State, 236 Ga. 1, 222 S.E.2d 354 (1976) (standards for charging on lesser included offenses; oral requests permitted)
- Marlowe, 277 Ga. 383, 589 S.E.2d 69 (2003) (unit of prosecution; multiple punishments for same act may be allowed with separate acts)
- Daniel v. State, 248 Ga. 271, 282 S.E.2d 314 (1981) (requirements for reviewing trial objections and preserved issues)
- Turner v. State, 253 Ga.App. 760, 560 S.E.2d 539 (2002) (appellate review of trial court rulings on continuances)
- McIntyre v. State, 302 Ga.App. 778, 691 S.E.2d 663 (2010) (continuance decisions; preparation and discovery considerations)