Jermaine Donald Boyd appeals his conviction for felony murder while in the commission of aggravated assault in connection with the death of his girlfriend’s four-year-old son, Treymaine Berry. Boyd challenges the trial court’s allowing the State to play a tape recording of a witness’s statement as violative of
Crawford v. Washington,
The evidence construed in favor of the verdicts showed the following. On the night of January 10, 2004, Demetria Harris left her children, including her four-year-old son Treymaine, in the care of Boyd, with whom she lived and had a baby. When Harris returned home, she found Treymaine lying beside Boyd; the boy’s heаd was swelling “like a water head.” When Harris asked Boyd what had happened, Boyd started “yelling and screaming and hollering” and told her that Treymaine had fallen down steps in the apartment. Harris had witnessed Boyd discipline Treymaine before by “popping” him. Harris called 911, and rather than wait for the ambulance to arrive, Boyd left. He went to his aunt’s apartment which abutted Harris’s but did not tell her about Treymaine’s condition; he asked *167 for a cigarette and paced the floor. Treymaine was hоspitalized and died from blunt force trauma to his brain.
Investigators found no blood or other biological evidence on the stairs inside the apartment. The severity of the little boy’s injuries was inconsistent with a fall down a typical flight of residential stairs; the child had sustained at least 15 blows to the head, which were consistent with those inflicted in bоxing. Boyd made varying statements to the police about how the child was injured. One version was that Boyd was not present when Treymaine fell down the stairs; another was that he had been spanking Treymaine for getting into a candy dish without permission when Treymaine ran away from him to the stairwell and fell down the stairs. At one point, Boyd stated thаt “he swung at [Treymaine] several times and may have hit him in the head with the non-buckle end of the belt one time, but definitely not more than one time.”
1. The evidence was sufficiеnt to enable a rational trier of fact to find Boyd guilty beyond a reasonable doubt of the felony murder of Treymaine Berry.
Jackson v. Virginia,
2. Boyd contends that the trial court errеd by allowing the State to play for the jury a recorded statement of the victim’s three-year-old brother in violation of Crawford v. Washington, supra.
During direct examination of an investigator in thе case, the State asked about the investigator’s interview with the victim’s young brother, who was in the home at the time of the fatal incident. Without any defense objectiоn on the basis of Crawford, the investigator testified that the interview with the young child was as unproductive as he expected because of the child’s young age, and that in answеr to his queries, the boy related that Treymaine went to the hospital and “something to the effect ... he fell down the stairs and he went boom.” On cross-examination of thе investigator, defense counsel reiterated that the victim’s young brother said “that [the victim] fell down the stairs and went boom.” On redirect, the State asked to play the tаpe of the child’s interview; defense counsel responded that while the defense would have had “absolutely no problem” with the tape being played on direct, it objected to it being played on redirect because the defense did not “see how [defense counsel] opened it up for them to play it on redirect.” The State countered that the jury needed to hear for itself the three-year-old’s responses so that it could assess the boy’s understanding of and ability to rеspond to the questions. It was not until after the trial court ruled that it would allow the tape to be played for the jury, that the defense lodged an objection based upon Crawford.
Assuming the viability of Boyd’s complaint of a
Crawford
*168
violation, it fails to provide him relief. A violation of the right of confrontation is considered harmless if it is shown that there is not a reasonable probability thаt it contributed to the verdict; a
Crawford
violation is harmless if the hearsay at issue is cumulative of other evidence or if the evidence against the defendant is overwhеlming.
Treadwell v. State,
3. There is likewise no merit to Boyd’s contention that the trial court improperly expressed an opinion to the jury concerning the voluntariness of his in-custody recorded statement in violation of OCGA § 17-8-57 2 when the trial сourt stated that it would admit into evidence and allow the publication of two of the State’s exhibits, which were tapes of Boyd’s statements, over the defense’s objections.
Although Boyd did not raise objections below based upon OCGA § 17-8-57, the alleged violation will be reviewed under the “plain error” rule.
Berry v. State,
4. Lastly, Boyd contends that the trial court erred by refusing to charge the jury on misdemeanor-involuntary manslaughter 3 as a *169 lesser included offense, as it was warranted by the evidence and was his sole defense. But, the contention is unavailing.
The evidence at trial did not warrant an instruction on involuntary manslaughter in the commission of an unlawful act. “[T]his offense requires evidеnce of an unintentional killing ‘by the commission of an unlawful act other than a felony.’ ”
Finley v. State,
Judgment affirmed.
Notes
The fatal assault on the child occurred on January 10, 2004. On March 30, 2004, a Richmond County grand jury indicted Boyd for malice murder and felony murder while in the commission of aggravated assault. Boyd was tried bеfore a jury January 9-11, 2006; he was acquitted of malice murder but found guilty of felony murder. On January 11, 2006, he was sentenced to life in prison. A notice of appeal was filed on February 8, 2006, and the case was docketed in this Court on May 21, 2009. The appeal was submitted for decision on July 13, 2009.
OCGA § 17-8-57 provides:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Codе section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial grantеd in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
OCGA § 16-5-3 (a) provides:
A person commits the offense of involuntary manslaughter in the commissiоn of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A persоn who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.