DAVIS v. THE STATE
S16A0103
Supreme Court of Georgia
JUNE 6, 2016
299 Ga. 180 | 787 SE2d 221
NAHMIAS, Justice
explained, “[t]he failure of a witness to remember making a statement, like the witness‘s flat denial of the statement, may provide the foundation for calling another witness to prove that the statement was made.” Hood v. State, 299 Ga. 95, 99 (2) (786 SE2d 648) (2016) (citation omitted). Moreover, even if there were some error in the admission of this testimony, it was — as Murdock concedes — cumulative of other evidence (including a recording of the 911 call), and any such error was harmless. See Rutledge v. State, 298 Ga. 37, 40 (2) (779 SE2d 275) (2015). Accordingly, this claim of error also is without merit.
Judgment affirmed. All the Justices concur.
DECIDED JUNE 6, 2016.
Cynthia W. Harrison, for appellant.
Robert D. James, Jr., District Attorney, Leonora Grant, Lenny I. Krick, Heather C. Waters, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for appellee.
Appellant Sean Ohifemi Davis challenges his convictions for felony murder and first-degree child cruelty in connection with the death of his girlfriend‘s 13-month-old daughter, Nila Faye Flagler. As explained below, we reject Appellant‘s contention that his trial
1. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On April 27, 2009, Appellant came to Morrisha McLain‘s apartment in Vidalia, Georgia around 9:30 p.m. Appellant and McLain had been dating for a month or so, and he often cared for her children — Nila and her three-year-old brother Amari — while McLain worked the night shift at a nearby convenience store. Around 11:40 p.m., McLain left for work, and Appellant stayed with the children; Nila appeared healthy when McLain left. At about 7:40 a.m. the next morning, Appellant called McLain and told her that Nila was barely breathing and looked like she was having a seizure. McLain left work, calling 911 as she rushed home. When she arrived, she found Nila lying propped up on pillows on her bed; she was not breathing, and McLain started CPR. Moments later, an ambulance arrived, and Nila was taken to a nearby hospital, but she remained unconscious and required assistance to breathe. The child was flown to a hospital in Savannah, where she died the following day.
The medical examiner who performed Nila‘s autopsy testified at trial that the child had 26 external injuries on her head and face, including hair loss, abrasions, bruises, and healing lesions; several other external bruises and abrasions on her back and legs; and several internal injuries, including a skull fracture, subgaleal and subdural hemorrhages, brain swelling, and ruptured blood vessels. The injuries to Nila‘s skull and brain caused her death.
Three of the doctors who treated Nila in Savannah testified that the injuries that led to her death resulted from a recent impact or back-and-forth movement and not from earlier accidental falls as Appellant‘s counsel suggested on cross-examination. Dr. John Devaro, a pediatric ophthalmologist, testified that Nila had hemorrhaging in her eyes and detached retinas from a large acceleration-deceleration injury, which indicated a direct hit from something or back-and-forth movement of the head that did not result from a fall off furniture. Dr. Deborah Conway, the director of pediatric imaging, testified that Nila‘s injuries resulted from a combination of blunt force to the head and shaking and not from falling off furniture, that Nila and her brother could not have caused her injuries, and that her injuries had occurred within a day of her arrival at the hospital. Dr. Donna Evans, a pediatrician and medical director of the hospital‘s child protection team, testified that Nila‘s injuries resulted from acceleration-deceleration impact trauma and could not have resulted from an accidental fall off furniture, and that Nila‘s symptoms would have been immediately apparent to her caretaker.
Appellant testified that he did not strike, shake, or otherwise hurt Nila, claiming not to know how she was injured. Defense counsel elicited testimony from Appellant and McLain that a few days before Nila stopped breathing, she fell off her bed and got wedged between the bed and the wall with her head resting on the floor; she was in that position long enough to cause a clump of her hair to fall out when Appellant found her. On another occasion, Appellant and McLain were lying in bed together when Nila started to climb onto the bed but fell off, striking her head on the floor, although she got up laughing. Appellant also presented expert testimony from a pediatric forensic pathologist, Dr.
(b) Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court‘s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder and first-degree child cruelty. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.‘” (citation omitted)). The trial court therefore properly entered a conviction and imposed a sentence on the felony murder charge. The court erred, however, in entering a judgment of conviction on the child cruelty count, because that charge was the predicate for Appellant‘s felony murder conviction. See Nazario v. State, 293 Ga. 480, 486 (746 SE2d 109) (2013); Higuera-Hernandez v. State, 289 Ga. 553, 554 (714 SE2d 236) (2011). Accordingly, we vacate Appellant‘s conviction and sentence for child cruelty.
2. Appellant contends that he received ineffective assistance of trial counsel in three respects. To establish that his trial counsel was constitutionally ineffective, Appellant must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that his lawyer‘s performance was deficient, Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. This is no easy showing, as the law recognizes a “strong presumption” that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. Id. at 689. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance, 293 Ga. 189, 192 (744 SE2d 706) (2013). In particular, “decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Reed v. State, 294 Ga. 877, 882 (757 SE2d 84) (2014).
Even when a defendant has proved that his counsel‘s performance was deficient in this constitutional sense, he also must prove prejudice by showing “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U. S. at 694. “It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.” Harrington v. Richter, 562 U. S. 86, 104 (131 SCt 770, 178 LE2d 624) (2011) (citation and punctuation omitted). Rather, Appellant must demonstrate a “reasonable probability” of a different result, which, the United States Supreme Court has explained, is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694.
The reviewing court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U. S. at 697. In all, the burden of proving a denial of effective assistance of counsel is a heavy one, see Wells v. State, 295 Ga. 161, 164 (758 SE2d 598) (2014), and Appellant has failed to carry that burden.
(a) Appellant first claims that his trial counsel was deficient in failing to properly invoke the so-called “rule of sequestration” in regard to Appellant‘s expert witness, Dr. Janice Ophoven, and the State‘s rebuttal expert, Dr. Jamie Downs.
(1) Due to a busy practice and poor health, Dr. Ophoven was unable to travel from her
At some point before Dr. Ophoven‘s testimony was played for the jury, the prosecution gave a copy of the recording to Dr. Downs, who testified in rebuttal right after the jury watched Dr. Ophoven‘s testimony. The rule of sequestration had not been invoked by either party or by the court up to that point in the trial, although with the exception of Dr. Downs, the parties had honored the rule. After Dr. Downs was qualified as an expert, but before he offered his opinions, Appellant‘s counsel objected that the rule had been violated. The resulting sidebar discussion was not transcribed, but the trial court overruled the objection. Dr. Downs then offered his opinion about the cause of Nila‘s death, which was based on his review of the victim‘s medical and autopsy records and other information he had been provided about the case, and identified where he disagreed with specific portions of Dr. Ophoven‘s analysis and conclusions.
After the jury was excused for the day, Appellant‘s counsel renewed the sequestration objection, but the court again overruled it, finding that Dr. Ophoven had not produced an expert report, so the only way for Dr. Downs to rebut her testimony was for him “to either know what the witness said in the courtroom or have someone summarize it for him so that he would know what her findings and conclusions were.”2 The court also found that Appellant was not at any disadvantage and asserted that trial courts have broad discretion in allowing witnesses to testify in rebuttal even when the rule of sequestration had been invoked and enforced.
(2) Appellant‘s trial took place in June 2013, more than five months after Georgia‘s new Evidence Code took effect. In our new evidence scheme, the rule relating to sequestration (“exclusion“) of witnesses is found in
Except as otherwise provided in
Code Section 24-6-616 , at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of
other witnesses, and it may make the order on its own motion. This Code section shall not authorize exclusion of:
- A party who is a natural person;
- An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
- A person whose presence is shown by a party to be essential to the presentation of the party‘s cause.3
The text of
Eleventh Circuit precedent explains that “[t]he purpose of the sequestration rule is to prevent the shaping of testimony by one witness to match that of another, and to discourage fabrication and collusion.” Miller v. Universal City Studios, Inc., 650 F2d 1365, 1373 (5th Cir. July 23, 1981).6 See also
The reasons for sequestration apply not only to a witness who is present in court to hear the testimony of other witnesses, but also — as essentially occurred here — to a witness‘s being given a transcript of another witness‘s trial testimony to review. See Miller, 650 F2d at 1373.
But there are exceptions to the sequestration rule. As relevant here, both
The federal circuits agree that expert witnesses are not automatically excepted from sequestration as “essential“; that determination remains in the trial court‘s discretion. See, e.g., Miller, 650 F2d at 1373-1374; Opus 3, 91 F3d at 629. But the drafters of the federal rule recognized that the “essential” witness category would include “an expert needed to advise counsel in the management of the litigation.”
This view rests in part on the recognition that
The reasons for sequestration may be even less applicable to rebuttal testimony by experts. While not excepted per se from sequestration,
the very function of a rebuttal witness is directed toward challenging the prior testimony of opposing witnesses, thereby enhancing the fact finder‘s ultimate determination of an objective “truth.” While not all rebuttal witnesses need be apprised of prior testimony — impeachment witnesses called to demonstrate bias, for example, — a rebuttal witness presented to refute the medical findings of an opposing expert can contribute most completely to a jury‘s truth finding capacity only by fully understanding and addressing
all of the relevant prior evidence. Cf. United States v. Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982) (holding that government psychiatrists should be allowed to hear testimony of opposing expert witnesses in order to completely familiarize themselves with each other‘s findings). Whether such evidence is summarized in the form of a hypothetical question or exposed by prior review, rebuttal examination cannot be properly conducted without revealing, in some measure, the testimony which is subject to refutation. Moreover, trial by ambush and confoundment of rebuttal witnesses hardly advances the purported goals of reliability and trustworthiness. Id. (it is unreasonable to place experts under short time constraints for familiarizing themselves with each other‘s findings and therefore, reasonable to permit all of them to appear in court).
United States v. Bramlet, 820 F2d 851, 855 (7th Cir. 1987). See also United States v. Shurn, 849 F2d 1090, 1094 (8th Cir. 1988) (noting that “the purpose of a sequestration order is not applicable” to rebuttal testimony that is “not cumulative, but simply impeaching“).
Finally, even when the rule of sequestration has been invoked and a witness violates it, the trial court may respond in at least three ways:
(1) it may cite the guilty party for contempt; (2) it may allow opposing counsel to cross-examine the witnesses as to the nature
of the violation; or (3) where counsel or the witness violate[s] the rule intentionally, the court may strike testimony already given or disallow further testimony. “The district court‘s denial of a mistrial for violation of the sequestration rule is ... a matter of discretion and reversible only on a showing of prejudice.”
United States v. Diaz, 248 F3d 1065, 1104 (11th Cir. 2001) (citations omitted). See also United States v. Ortega-Chavez, 682 F2d 1086, 1089-1090 (5th Cir. 1982) (finding no abuse of discretion or prejudice in allowing testimony of rebuttal fact witnesses who had violated a sequestration order).
(3) Viewed against this legal backdrop, under the circumstances of this case the trial court did not abuse its broad discretion in allowing Dr. Downs to testify in rebuttal of Dr. Ophoven based in part on his review of her recorded testimony. Dr. Downs was entitled to know of her opinions and the bases for them, and where the defense had not provided an expert report and the court could find that the defense had rebuffed the State‘s efforts to contact her before trial, that information was reasonably conveyed to Dr. Downs by means of the recording rather than through a summary by someone who had viewed the recording or through hypothetical questions. Accordingly, even if Appellant‘s counsel had invoked the rule of sequestration earlier in the trial, the court would not have abused its discretion in excepting Dr. Downs from the rule to the limited extent that he was excepted. Appellant therefore has not shown that his trial counsel acted deficiently in this respect, nor has he shown that, but for counsel‘s actions, the outcome of the trial would have been different. See Hampton v. State, 282 Ga. 490, 492 (651 SE2d 698) (2007) (holding that trial counsel‘s failure to raise a meritless objection does not constitute deficient performance and causes no prejudice). As to prejudice, we also note that Appellant has failed to establish how Dr. Downs‘s testimony would have been different, and more favorable to him, if Dr. Downs had not seen Dr. Ophoven‘s testimony directly but rather had been asked hypothetical questions based upon the content of that testimony.
(b) Appellant next argues that his trial counsel was professionally deficient in failing to object to the admission of two sets of photographs on the ground that they were duplicative and more prejudicial than probative. This argument implicates another provision of the new Evidence Code,
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Appellant first contends that his trial counsel should have objected to a series of 11 post-incision autopsy photos of the victim that the medical examiner and other State‘s experts used in explaining their opinions about the victim‘s injuries and the cause of her death. Appellant argues that these photos were not material to any issue in the case, because the cause of death was not in dispute and was established by other evidence. In fact, the cause of the victim‘s death and the circumstances surrounding her injuries were the principal dispute at trial. The State presented evidence that Appellant caused the victim‘s fatal injuries after the child‘s mother left for work, while Appellant presented his own testimony that he did not strike, shake, or otherwise harm the victim along with expert testimony that the child‘s death could have resulted from earlier falls. Thus, the premise of Appellant‘s claim is faulty.
Appellant also contends that his trial counsel should have objected to a series of 12 photos from the hospital in Savannah where the victim died. Eight of these photos depict portions of the victim‘s body as she lay in a crib attached to various monitors and life support machines, and one photo appears to be of an MRI scan of the victim‘s head. These photos were relevant to show the nature and extent of the victim‘s injuries, and they are not especially gory or gruesome. See Moss v. State, 298 Ga. 613, 617-618 (783 SE2d 652) (2016) (discussing the admissibility under
Three photos from the hospital series are different. They do not depict the victim at all; two simply show medical equipment, and one is of a doll lying in the victim‘s crib. Unlike the other photos in dispute, we do not see — and the State has not offered an explanation for — how these three photos were relevant to any issue of consequence in this case. See
Nevertheless, we are confident that no Strickland prejudice resulted from the admission of these three photos. Cf. Hood, 299 Ga. at 106 (concluding that the admission of other acts evidence in violation of
(c) Finally, Appellant asserts that his trial counsel was ineffective in failing to more thoroughly research the State‘s medical
3. A final important note. As discussed previously, this case was tried under our State‘s new Evidence Code, and the key evidence rules we must apply —
It may be that the result of this case would be the same if we applied the old Evidence Code and our decisions interpreting it, but if so, that is happenstance, at least without careful comparison of the old and new law.9 Georgia lawyers do this Court no favors — and risk obtaining reversible evidence rulings from trial courts — when they fail to recognize that we are all living in a new evidence world and are required to analyze and apply the new law. It may be hard to comprehend that, when it comes to trials and hearings held after January 1, 2013, the most pertinent precedent to cite on an evidentiary issue may be a decades-old decision of the Eleventh Circuit (or even the old Fifth Circuit), instead of a week-old unanimous decision of this Court (if we were deciding the appeal of a case tried before 2013 and governed by the old rules, as still frequently occurs).10 We trust that this shortcoming will not be repeated in future cases coming to this Court.
Judgment affirmed in part and vacated in part. All the Justices concur.
DECIDED JUNE 6, 2016.
Jack M. Downie, Brandi D. Payne, for appellant.
S. Hayward Altman, District Attorney, John A. Fitzner III, Mary K. McKinnon, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew Min-soo Youn, Assistant Attorney General, for appellee.