Appellants Margarita Gomez and Alejandro Martinez Huitron challenge their convictions for felony murder and other crimes related to injuries to and the resulting death of their three-year-old daughter, Esmerelda. We vacate three of each Appellant’s convictions (Counts 4, 11, and 16) to correct sentencing errors, but we reject Appellants’ many other contentions and affirm their remaining convictions.
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On May 31, 2010, Gomez and Huitron spent the day at their apartment in Forest Park with their two daughters, Esmerelda and two-year-old Perla. Joseph, Gomez’s younger son by another man, did not live with them. Around 8:00 p.m., Esmerelda suffered a severe head injury, resulting in a skull fracture and brain and retinal hemorrhaging. After Appellants called 911, Esmerelda was taken to Hughes Spalding Children’s Hospital and later flown to Egleston Hospital, where she died on June 3.
Gomez and Huitron were interviewed separately several times by officers from the Forest Park Police Department, first on the night of Esmerelda’s injuries, again a few days later, and finally on June 10, when they each participated in a re-enactment of how they supposedly found Esmerelda. Each time, a Spanish-speaking police officer or interpreter was used.
Both parents claimed that they found Esmerelda lying on her back on the floor between a small child’s table and one of the two beds in the room.
The next day, Officer Karen Henry, who was assigned to investigate in Esmerelda’s case because she specialized in child abuse cases, interviewed Gomez. Gomez said that she never saw any bruises or marks on Esmerelda, that the only other injury Esmerelda had suffered was eight days earlier when she fell in the bathtub, and that Esmerelda had fallen out of bed while sleeping but had not injured herself. Officer Henry testified, however, that the pictures she saw of Esmerelda showed bruises on the side of her abdomen, from her armpit to her diaper area, that had begun to heal.
When examining Appellants’ apartment about three hours after the 911 call, investigators found clumps of dark hair in the bathroom and outside, one to two feet from the concrete patio.
At trial, four medical experts testified for the State. Dr. Amita Shroff, who treated Esmerelda at Hughes Spalding and was qualified as an expert in pediatric emergency medicine, testified that Esmerelda had a “Battle’s sign”—bruising on the side of her face, behind her ear, and tracking down her neck — which indicates a skull fracture, and fixed and dilated pupils, which indicate brain damage. She also had blood in her ear and on her nose, as well as bruises on her nose, chin, back, and abdomen. The child’s abdomen was distended and she had an abrasion on her left flank. The doctor testified that there was no way a fall from a bed could have caused these injuries; they could be caused only by something traumatic like a car accident, falling off a 15- to 20-story building, or having her head slammed onto a hard object like concrete or a bathtub.
Dr. Rajamani Iyer testified that she was Esmerelda’s pediatrician, and at all her visits, including the last visit four weeks before the incident, Esmerelda seemed normal. A year before trial, the prosecutor had shown Dr. Iyer an autopsy photograph of Esmerelda’s head, and Dr. Iyer, who was qualified as an expert in pediatric medicine, testified based on that photograph that Esmerelda’s injuries were not consistent with a fall from the bed and looked like child abuse. Dr. Iyer also testified that the injuries could have been caused by a chair, concrete, or other hard object.
Dr. Greenbaum, who was qualified as an expert in forensic pathology and child abuse medicine, also was present at the re-enactment. Dr. Greenbaum testified that Esmerelda had a complex Y-shaped skull fracture and subdural and sub-retinal hemorrhages. She explained that the sub-retinal hemorrhaging was so severe that it could only be caused by a few things, including major head trauma and leukemia (and there was no evidence that Esmerelda had leukemia). Dr. Greenbaum further explained that Esmerelda’s injuries involved high acceleration and deceleration forces of the sort seen in a high-speed car accident, a fall from three or more
The State’s final witness was Dr. Lora Darrisaw, the GBI medical examiner who performed Esmerelda’s autopsy and who was qualified as an expert in forensic pathology and pediatric forensic pathology Dr. Darrisaw testified about scattered bruises on the child’s body, including a collection on the right side of her body and one on her jaw, which would normally be seen after forceful grabbing of the head; although it was possible, but not likely, that the bruise on Esmerel-da’s chin was caused by medical intervention, none of the other bruises could have been. She added that Esmerelda’s neck had been “impacted,” meaning it had been hyperextended over a curved surface or the corner of a hard object. Dr. Darrisaw, who was also present at the re-enactment by Appellants, examined the chairs in the bedroom and concluded that even though they were metal, they were small, fold-up chairs that could not have caused the injuries. The doctor testified that Esmerelda’s injuries could have been caused only by “[h]er head hit[ting] something very, very hard that doesn’t move,” so the doctor could not see how Esmerelda could have sustained her injuries by falling on anything in the bedroom; the only surface that seemed consistent with the injuries was the concrete patio outside the apartment. Dr. Darrisaw explained that Esmerelda’s neck injuries and the bleeding in her eyes indicated that she was moving fast, which could be caused by her falling from a height greater than her own or someone picking her up and moving her body with a lot of force before she impacted a surface. Dr. Darrisaw also noted that there was a build-up of iron in Esmerelda’s brain, indicating that she had suffered an earlier head injury Dr. Darrisaw ruled the cause of death to be blunt force trauma and concluded that it was non-accidental.
Several witnesses testified about the relationship between Esmer-elda and her parents. An officer who talked to Gomez at the hospital on the night Esmerelda was taken there testified that Gomez cried briefly when she was told that Esmerelda might die. Another officer, who spoke to Gomez later that night, testified that when he told her that Esmerelda might die, she said she believed that Esmerelda would be okay, but she started crying when he told her that she would not be able to take her other daughter, Perla, home.
Joanna Duarte, one of Gomez’s friends, testified that Gomez had said Esmerelda was the “product of a rape” and that Gomez sent the child to Mexico when she was ten or eleven months old. Around November 2009, when Esmerelda was about three, Gomez asked Duarte to go get her and bring her back. Esmerelda had lice when she returned, and when Duarte gave Esmerelda to Gomez, she offered to get Gomez a prescription for lice shampoo. Instead, Gomez shaved off all of Esmerelda’s hair to prevent the lice from spreading to Perla. Duarte testified that Gomez always showed Perla more affection, saying that Perla was prettier because she looked like Huitron and calling Esmerelda ugly Duarte also observed that Esmerelda did not seem very attached to her mother and whenever Esmerelda saw Duarte, she would say she wanted to go with Duarte. Ana Maldonado, who sometimes cared for the children, testified to the child having a similarly strained relationship with Huitron, who worked in Columbus, Georgia during the week. On one occasion, Maldonado dropped Esmerelda off with him, and when he grabbed her, Esmerelda reacted in a way that indicated she did not want to be left with him.
A caseworker with the Babies Can’t Wait program of the Georgia Department of Health testified that when she came to do an evaluation of Gomez’s son, Joseph, in November 2009, Joseph and Esmerelda looked malnourished, and Esmerelda was dressed in torn clothes and looked small for her age and frightened. This prompted the caseworker to make a referral for Esmerelda, as well as Joseph, to receive services from Babies Can’t
The caseworker was later able to track down Joseph, discovering that he was living with Maldonado and looked healthy and happy. Testimony showed that Gomez gave Joseph, who was born around July 2009 and was not Huitron’s son, to her friend Duarte’s sister around October 2009. The sister cared for Joseph for about five months, during which time Gomez did not visit or provide any money for her child. The sister eventually returned Joseph to Gomez because she had four kids of her own and was having money problems. On March 8, 2010, Gomez gave Joseph to Maldonado, and Gomez signed a notarized agreement that she would leave Joseph in Maldonado’s custody permanently Gomez told Maldonado that Joseph was sick and she could not take care of him.
Gomez and Huitron did not testify at trial or call any witnesses. The defense theory for both Appellants was that Esmerelda had been injured in an accident. The jury rejected that theory and found Appellants guilty of felony murder and other charges. See footnote 1 above.
The Motions for New Trial
2. After their convictions, Gomez and Huitron filed motions for new trial. Over the course of the two hearings on the motions, each Appellant presented a medical expert. Huitron called Dr. Brian Frist, a retired medical examiner from Cobb County, who was qualified by the trial court as an expert in medical examination and anatomic and clinical pathology, but not in forensic pathology because he was not board-certified in that area. Dr. Frist acknowledged that Esmerelda’s injuries could have been inflicted intentionally, but claimed that there was no way to determine whether they were caused intentionally or accidentally. He disagreed with the State’s experts who had testified that the injuries required a fall from at least two stories and said the injuries could have been caused by Esmerelda’s falling from about two feet and hitting her head on one of the objects in the room, such as the chairs (although he admitted that was unlikely), the bedframe, or the table (assuming it was hard). Dr. Frist also said that he did not think the injuries were caused by Esmerelda’s head striking the patio because that would have caused an indentation in her skull that he did not see.
Gomez called Dr. Adel Shaker, a medical examiner for a Texas county who formerly worked for a county in Mississippi. The trial court qualified Dr. Shaker as an expert in anatomic, clinical, and forensic pathology. He, too, acknowledged that he could not exclude intentional blunt force trauma as the cause of the injuries, but he also disagreed with Dr. Darrisaw’s conclusion that Esmerelda’s injuries likely resulted from hitting her head on the concrete patio, because he did not see any fracture or dislocation of neck vertebrae and there was no blood on the patio. Dr. Shaker testified that jumping on the bed and falling on a metal chair could have caused Esmerelda’s body to spin and her neck to overextend, resulting in the hemorrhaging that she had. Like Dr. Frist, he disagreed with the State’s experts who had testified that a fall from two to fifteen stories was required, and he asserted that if a child jumped to five feet in height and hit her head on the floor or a hard object, that could have caused the injuries. Dr. Shaker also claimed that Esmerelda’s injuries could have been caused by a seizure.
Dr. Shaker was cross-examined about a Tennessee case in which he testified for the defense. Like Esmerelda, the child victim in
Huitron’s and Gomez’s trial lawyers, who were both experienced criminal defense attorneys, also testified during the hearings. They each said that their main defense strategy at trial was to argue that the cause of Esmerelda’s injuries was an accident, and, to some extent, to try to deflect blame onto their client’s co-defendant. They also explained that they conducted limited investigations into whether they could find an expert to usefully support the accident theory Gomez’s counsel interviewed Dr. Darrisaw about the injuries, consulted with a biomechanics mathematician at Georgia State University, and educated himself by reading books on the subject. After doing so, counsel “did not think that the numbers were going to break [his] way” He was concerned that any expert witness’s testimony would be more helpful to the State than to his client and would prevent him from pursuing an accident defense. Similarly, Huitron’s counsel spoke with a medical school instructor from the University of Georgia, who said that it “didn’t sound likely” that Esmerelda’s injuries were caused by a fall from a bed and referred counsel to a study on skull injuries, which counsel read. Counsel’s research into the subject led him to conclude that Appellants’ story was “extremely unlikely.”
The trial court denied the motions for new trial, and these appeals followed.
Sufficiency of the Evidence
3. Appellants both argue that the evidence was legally insufficient to support their convictions under Jackson v. Virginia,
Gomez also challenges her conviction for second degree cruelty to children for fracturing Esmerelda’s ribs between December 24, 2009 and May 31, 2010. The offense of cruelty to children in the second degree is committed when a person “with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (c). The evidence showed that from November 2009 until Esmerelda’s
Furthermore, when Gomez was asked by Dr. Greenbaum about a large bruise on Esmerelda’s abdomen, Gomez said she hit herself on furniture, and Gomez claimed to recall seeing only one bruise. When Officer Henry interviewed Gomez three days after Esmerelda’s fatal injuries, Gomez again said she had not seen any bruises or marks on the child, but she said that Esmerelda fell in the bathtub eight days earlier. Both of these accounts are inconsistent with the evidence that Esmerelda had bruises along the side of her abdomen that showed signs of healing. Finally, after describing all of the injuries Esmerelda suffered, including the numerous bruises and the rib fractures, Dr. Greenbaum opined that the child’s injuries were caused by physical abuse.
Although the evidence on this count is thinner — which may explain why the jury convicted Gomez of the lesser included offense of second degree child cruelty and acquitted Huitron — the sum of the evidence, when properly viewed in the light most favorable to the verdict, was legally sufficient. See Jackson,
Sentencing Errors
4. In wading through the multitude of charges brought by the State based on what the evidence indicated was a single deadly act by Appellants, the trial court made a few errors in entering convictions and imposing sentences. For the reasons discussed below, we correct those errors by vacating both Appellants’ convictions and sentences for felony murder based on the deprivation of a minor (Count 4), aggravated assault with hands (Count 11), and second degree cruelty to children (Count 16).
(a) As charged in Count 4 of the indictment, Appellants were convicted of felony murder based on contributing to the deprivation of Esmerelda ‘Toy failing to provide for [her] protection..., which caused [her] to be deprived and resulted in her death.” Contributing to the deprivation of a minor is a felony when the offense “result[s] in the serious injury or death of a child.” OCGA § 16-12-1 (d.l).
(b) Appellants were found guilty of two counts of aggravated assault with an “object . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (b) (2). Count 11 charged Appellants with using hands to cause acceleration/deceleration injuries resulting in hemorrhages of Esmerelda’s brain and eyes, and Count 12 charged them with using an unknown object to cause her skull fracture. The trial court properly merged Count 12 into the felony murder conviction based on that aggravated assault, but Appellants were convicted and sentenced on Count 11. This was error. Both aggravated assault counts required proof of the same elements — an assault with a deadly object. And there was no evidence of a deliberate interval between Esmerelda’s eye and brain injuries and her skull injury; indeed, the evidence indicates that all of these injuries likely resulted from the same act — one or both of Appellants hitting Esmerelda’s head against a hard surface. “Because there was no evidence that the [injuries] occurred in a manner other than in a single transaction, with no ‘deliberate interval,’. . . only a single verdict for aggravated assault can stand, and the remainder must be merged into that verdict.” Jeffrey v. State,
(c) Appellants were convicted of second degree child cruelty for striking Esmerelda with an unknown object causing contusions to her head, torso, and extremities (Count 16), and first degree cruelty to children by causing acceleration/deceleration injuries resulting in hemorrhages of the brain (Count 17). Although there was testimony that Esmerelda had some bruises that had begun to heal on her torso and extremities, Count 16 does not allege that Appellants caused those past injuries; it alleges only that Appellants caused contusions on the day of Esmerelda’s death, meaning that the charged injuries occurred on the same day as the injuries in Count 17. As with the two aggravated assault charges, there was no evidence that these injuries resulted from acts of cruelty separated by a deliberate interval. And again the elements required to prove the two charges overlap; Count 16 and Count 17 both required proof that Appellants “cause [d] a child under the age of 18 cruel or excessive physical or mental pain.” OCGA § 16-5-70 (b), (c). The only difference between the crimes is that because the conviction on Count 16 was for second degree child cruelty, it required proof of criminal negligence, which is a less culpable mental state than the malice required to prove first degree child cruelty as charged in Count 17. See id.; OCGA § 16-1-6 (1) (explaining that one crime is included in another when “[i]t is established by proof of . . . a less culpable mental state”). Accordingly, Count 16 should have been merged into Count 17, and we therefore vacate each Appellants’ conviction on Count 16.
Contentions Raised by Both Appellants
5. At trial, Appellants were represented by separate counsel. Neither defense attorney presented any experts to rebut the State’s four medical experts, whose testimony is discussed in Division 1 above. Appellants contend that this omission constituted ineffective assistance of counsel. To prevail on this claim, they must prove both that their lawyer’s performance was professionally deficient and that they were prejudiced as a result. See Lupoe v. State,
At the motion for new trial hearing, both trial counsel testified that after conducting limited investigations, they concluded that they would not be able to find an expert who would strongly support their clients’ story that Esmerelda injured herself by accident. The fact that each Appellant, when represented by new post-trial counsel, found a medical expert to testify on their behalf at the motion for new trial hearing undermines to some extent the reasonableness of the pre-trial investigations. But we need not decide if the failure of trial counsel to find these post-trial experts amounted to deficient performance, because Appellants have failed to demonstrate a reasonable probability that the outcome of the trial would have been different if the testimony given by those experts at the motion for new trial hearing, which is summarized in Division 2 above, had been offered at trial. See Palmer v. State,
All four of the State’s experts had treated Esmerelda at some point or directly examined the injuries that led to her death, and Dr. Green-baum and Dr. Darrisaw had visited Appellants’ apartment and seen the bedroom where Appellants claimed the fall occurred; they were able to examine the furniture in the room and listen to Appellants’ accounts as they supposedly re-enacted how they found Esmerelda. By contrast, Appellants’ paid experts had never examined Esmerelda or the apartment. Moreover, among the State’s experts were doctors qualified as experts in pediatric emergency medicine (Dr. Shroff), forensic pathology and child abuse medicine (Dr. Greenbaum), and forensic pathology and pediatric forensic pathology (Dr. Darrisaw). The expert Huitron found after trial (Dr. Frist) was not qualified or board-certified in forensic pathology, and Gomez’s expert (Dr. Shaker) admitted on cross-examination that his conclusion in a similar case that a child’s head injuries were not the result of wrongdoing but rather of disease had been undermined by both his former supervisor and an expert on that disease. Accordingly, Appellants’ claim of ineffective assistance on this ground is not sustainable.
6. Appellants raise two more claims of ineffective assistance related to the expert testimony. These claims also lack merit.
(a) The State’s last witness, Dr. Darrisaw, testified that the concrete patio was the only surface in Appellants’ apartment that seemed consistent with Esmerelda’s injuries. That testimony at trial was the first Appellants knew of this impression, because it was not included in the report by Dr. Darrisaw that the State had provided to Appellants before trial. Appellants contend that their trial attorneys should have objected to this unexpected testimony and sought a continuance or mistrial, and assert that the failure to do so constituted ineffective assistance. However, even assuming that the State knew about Dr. Darrisaw’s impression before trial and should have disclosed it to Appellants, they have failed to show that their attorneys’ decisions to forgo objecting was deficient. See OCGA § 17-16-4 (a) (4) (requiring pre-trial discovery of expert opinions); Murphy v. State,
“Trial tactics and strategy... are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” McNair v. State,
Contentions Raised Only by Gomez
7. Gomez alone raises three more ineffective assistance of counsel claims, which also lack merit.
(a) First, Gomez disputes her trial counsel’s decision not to object to a snippet of hearsay testimony. Specifically, Officer Henry, who responded to Appellants’ apartment on the day of Esmerelda’s injuries, testified that when she arrived on the scene, another officer told her that her specialty in child abuse might be helpful in the case because a month earlier, someone had called the Division of Family and Children Services and asked it to do a wellness check. At the motion for new trial hearing, Gomez did not question her trial counsel about his decision not to raise this objection. His decision “ ‘is therefore presumed to be a strategic one,’ ” Lupoe v. State,
(b) Next, Gomez contends that her trial counsel was ineffective in failing to object to testimony describing the hair found near the patio as human hair when no testing was ever done to determine if it actually was human hair. Gomez also argues that her counsel should have asked Dr. Darrisaw to compare the length of the hair found near the patio with Esmerelda’s hair to show that the patio hair was too long to be Esmerelda’s. However, Gomez did not raise this ineffective assistance claim when she was represented by new counsel in her motion for new trial and the trial court did not rule on it, so the claim was not preserved for review on appeal. See Stewart v. State,
(c) Finally, Gomez contends that her trial counsel was ineffective in failing to object to the trial court’s instruction to the jury on aggravated assault. As discussed in Division 4 (b) above, Gomez was charged with one count of aggravated assault against Esmerelda using hands and one count of aggravated assault against Esmerelda using an unknown object. The trial court instructed the jury on each of these counts, and as part of that charge said: “Hands, if and when used in making an assault upon another person, is [sic] not a deadly weapon per se, but may or may not be a deadly weapon depending upon the manner in which they are used in the circumstances of the case.” Gomez asserts that this charge was confusing because it implied that to constitute the crime of aggravated assault, hands must always be used, which conflicts with the charge of aggravated assault with an unknown object. This claim of ineffective assistance also was not preserved for appellate review because Gomez did not raise it in her motion for new trial. See Stewart,
Because Gomez also seeks review of this alleged instructional defect for plain error under OCGA § 17-8-58 (b), we note that the jury instruction was appropriate and not misleading, so an objection to it would have been properly denied. Thus, it was not plain error. See Woodard v. State,
[a]s a general rule, a guilty verdict cannot be challenged on the ground that the jury’s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count. Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.
State v. Springer,
9. At trial, the jury voir dire, opening statements, and closing arguments were not transcribed. Gomez claims that the trial court erred in not ensuring transcription of these portions of the trial, but she has not shown that this was error or how she was harmed by the absence of a transcript. Thus, her claim fails. See Norton v. State,
10. Finally, Gomez alleges that an evidentiary error occurred during the motion for new trial hearing. On direct examination, Gomez’s medical expert, Dr. Shaker, testified that Esmerelda was 36 inches tall and the bed Appellants claimed she was jumping on when she fell was 25 inches high. Gomez then asked: “Now, what’s the most you think, with the help of a spring bed, do you think the child would be able to jump?” The State objected, arguing that the question called for speculation; the trial court sustained the objection. A little while later, Gomez asked Dr. Shaker: “Would you know what a child — from your training and education know what a child of, let’s say, two years of age would be expected to be able to jump?” The court told Gomez to move on, as it had already sustained the objection. Gomez then asked: “Now, Doctor, would you agree that if a child was jumping on a bed they might gain some height in the air over what they will be just standing?” The State again objected, but the court overruled the objection, and Dr. Shaker answered, “Yes.”
Gomez asserts that the trial court erred in sustaining the State’s initial objection. But that ruling was not an abuse of discretion, because Gomez had not established that Dr. Shaker, who was qualified as an expert in anatomic, clinical, and forensic pathology, had any expertise or personal knowledge about how high Esmerelda or an average two-year-old (Esmerelda was actually three) could jump on a “spring bed.” Moreover, Gomez has failed to show harm from the court’s ruling. Dr. Shaker was allowed to testify that a child jumping on a bed would fall from a greater height than her standing height, and Gomez did not proffer Dr. Shaker’s answer to the objected-to question, so she has not shown that it would have been more beneficial to her than the testimony the doctor gave. See Lyons v. State,
Contentions Raised Only by Huitron
11. Neither Gomez nor Huitron, who are native Spanish speakers, was able to communicate effectively in English at the time of the trial, so interpreters were used. Huitron raises two claims dealing with the interpreters; neither warrants a new trial.
(a) On the first day of trial, the court provided each Appellant with an interpreter. The next day, however, Huitron’s interpreter did not come to court, so that day and for the rest of the trial, Appellants shared the interpreter originally designated for Gomez. (The court also had a third interpreter to translate witness testimony given in Spanish into English for the court, jury, and others in the courtroom.) Huitron contends that he is entitled to a new trial based on this interpreter sharing, raising the claim as both trial court error and ineffective assistance of counsel.
It is undoubtedly the better practice for each defendant in a criminal case to have his or her own interpreter to ensure that confidential attorney-client communications are not hindered; when an interpreter must be shared, the court should take measures to ensure that each defendant has adequate opportunities throughout the proceedings to confer confidentially with his or her counsel via the interpreter. Neither Huitron nor his trial counsel, however, ever complained at trial that they were prevented from conferring, confidentially or otherwise. And even on appeal, where Huitron has not suggested that he has any barrier to communication with his counsel, he has not identified anything specific that he was prevented from communicating to trial counsel at any point. In fact, trial counsel testified at the motion for new trial hearing that Huitron could have asked for another interpreter, but when counsel told Huitron that his original interpreter could not be there, Huitron “wasn’t concerned about it.” Counsel also testified that although sharing was not as convenient and may have “limited” his ability to communicate with Huitron, he did not think Huitron was harmed and there was nothing that he needed to, but was unable to, communicate with Huitron.
Because Huitron has not shown that he was actually harmed by sharing an interpreter, he has failed to demonstrate either that the trial court committed reversible error or that his trial counsel was ineffective in failing to secure a second interpreter. See Hung v. State,
(b) Huitron also argues that the trial court should have given a jury instruction
Because Huitron did not request a jury instruction on interpreters at trial, we review the trial court’s failure to give such a charge only for plain error. See OCGA § 17-8-58 (b); State v. Kelly,
12. Huitron raises several more meritless claims of ineffective assistance of counsel.
(a) At trial, Ana Maldonado testified that it was her understanding that Huitron did not want Gomez’s son, Joseph, in his home. Huitron argues that his trial counsel should have objected to this testimony as irrelevant because Huitron was not charged with any crime related to Joseph and the testimony’s prejudicial effect outweighed its probative value. However, the evidence was clearly relevant and probative to the trial because it provided a motive for Gomez’s abandonment of Joseph, a crime with which she was charged. It also was relevant in showing Huitron’s views of Gomez’s children. To the extent that Huitron is arguing that the prejudicial impact of this testimony outweighed any probative value as to his charges and that his counsel therefore should have sought some sort of limiting instruction regarding the jury’s consideration of this testimony’s pertinence as to his case, even if we assume that such an instruction would have been granted, it was reasonable strategy for Huitron’s counsel to choose not to draw attention to this comment’s relevance to the charges against Huitron, rather than only the charges against Gomez, by objecting. See Ford v. State,
(b) Huitron argues that his trial counsel should have sought to sever his trial from Gomez’s.
The trial court has broad discretion to grant or deny a motion for severance in a murder case where the death penalty is not sought, and in the exercise of that discretion, the trial court is to consider if the number of defendants would create confusion as to the law and evidence applicable to each, if there is the danger that evidence admissible against one defendantwill be considered against the other despite the court’s instructions, andif the defenses of the defendants are antagonistic to each other or to each other’s rights. [Huitron] cannot establish prejudice in the failure to request severance, because [he] has not shown either that a motion should or would have been granted.
Dulcio v. State,
Moreover, at the motion for new trial hearing, trial counsel explained that he did not seek to sever Huitron’s trial because he believed that “the more bad things that came out about [Gomez], regardless of the source[,] were good for [Huitron].” This was not a patently unreasonable trial strategy See Powell v. State,
(c) At trial, Huitron’s counsel requested the pattern charge on involuntary manslaughter. He did not specify what the evidentiary basis for such a charge was, and he withdrew it at the charge conference. Huitron contends that this withdrawal was deficient performance because involuntary manslaughter was a lesser included offense of the charge of felony murder based on contributing to the deprivation of a minor.
The deprivation count underlying that felony murder charge alleged that Huitron caused Esmerelda to be deprived by “willfully fail[ing] to provide for [her] protection.. .pursuant to OCGA § 19-7-2” and that such act caused her to be “without proper parental care . . . and said failure resulted in [her] death.”
13. Huitron was found guilty of aggravated assault and first degree and second degree cruelty to children. These counts required a finding that Huitron was an active perpetrator of the harm against Esmerelda, either as a principal or as a party to the crime. See OCGA § 16-2-20 (b).
“[V]erdiets are mutually exclusive where it is legally and logically impossible to convict the accused of both counts.” Springer,
Judgments affirmed in part and vacated in part.
Notes
On May 31, 2010, Esmerelda suffered a severe skull fracture and other injuries. She died three days later. On June 15, 2011, a Clayton County grand jury indicted Gomez and Huitron for malice murder, three counts of felony murder, four counts of aggravated battery, two counts of aggravated assault, one felony count of contributing to the deprivation of a minor resulting in death, and six counts of first degree cruelty to a child, all with Esmerelda as the victim. Gomez was also indicted for two misdemeanor counts of contributing to the deprivation of a minor for abandoning her son Joseph. The State later nolle prossed one aggravated battery count and one child cruelty count. At a trial from October 29 to November 2, 2012, the jury found Gomez and Huitron guilty of two counts of felony murder (based on aggravated assault with an unknown object and contributing to the deprivation of a minor), the two counts of aggravated assault, the felony count of contributing to the deprivation of a minor, two counts of first degree child cruelty, and two charges of second degree child cruelty as a lesser included offense . Gomez was also found guilty of another lesser included charge of second degree child cruelty (based on fracturing Esmerelda’s ribs) and both counts of contributing to the deprivation of Joseph. Gonrez and Huitron were found not guilty of the remaining charges. The trial court sentenced Gonrez and Huitron to two terms of life imprisonment without the possibility of parole on the two felony murder counts. They were also sentenced to twenty years for aggravated assault using hands, twenty years for first degree cruelty to children, and ten years for second degree cruelty to children. Gonrez was sentenced to an additional ten years for her additional second degree cruelty to children conviction and two years for her two misdemeanor convictions for contributing to the deprivation of Joseph. As discussed in Division 4 below, Appellants’ convictions and sentences for felony murder based on felony contributing to the deprivation of a minor should have been vacated and the aggravated assault and second degree child cruelty counts for which they were sentenced should have been merged.
Gomez filed a timely motion for new trial, which she then amended with new counsel. Huitron filed a timely motion for new trial with new counsel, which he then amended. The trial court held evidentiary hearings on July 8 and November 9, 2015, and then denied the motions in one order on December 11, 2015. Gomez and Huitron filed timely notices of appeal, and the cases were docketed in this Court for the term beginning in December 2016 and submitted for decision on the briefs.
Testimony at trial indicated that Gomez and Huitron did not speak English well, although Huitron understood some.
The bed was 25 inches high, and the table had two child-sized metal chairs at it. At the re-enactment, both Appellants claimed that one of the chairs was knocked over, but each Appellant picked a different chair.
A police officer described the hair as human, but it appears that the hair was never tested to determine if it was human or to match it to the victim. Pictures of the hair were admitted at trial.
The caseworker testified that Joseph had some developmental delays and had been diagnosed with another condition, but it later turned out “that he didn’t have any other medical problems.” Maldonado testified that Joseph “had the condition of apnea. It’s a machinery that monitors the beating of his heart.” And Gomez told a police officer that Joseph had respiratory problems.
Although Huitron first lied to the police and said that at the time of Esmerelda’s injuries, Joseph was with a babysitter, he eventually admitted that Gomez had given Joseph to Maldonado.
Dr. Shaker also acknowledged his involvement in a high-profile case involving the death of a United Kingdom citizen in Kenya where his boss modified the autopsy report, as well as a case of a possible lynching in Mississippi where the family did not want him involved.
This case was tried in 2012, before Georgia’s new Evidence Code took effect. Former OCGA § 24-4-6 is now found at OCGA § 24-14-6. Oddly and unhelpfully, the parties have all cited mostly new Evidence Code provisions in the portions of their briefs discussing evidentiary issues.
Finally, although not disputed by Gomez, we note that the evidence was sufficient to support her two misdemeanor convictions for contributing to the deprivation of a minor.
The crime is also a felony if it is the defendant’s third or subsequent offense. See OCGA § 16-12-1 (d) (2). There is no evidence that Appellants had ever been convicted of this crime before. As noted in footnote 17 below, OCGA § 16-12-1 has been amended several times since 2010, but the amendments have not affected the provisions governing when the crime is a felony.
We also note that under Georgia law governing homicide convictions, it was improper for the trial court to enter a conviction and sentence on both counts of felony murder for the additional reason that one of those counts must be vacated by operation of law. See Noel v. State,
We note that in a case decided in 2015, this Court allowed sentences for malice murder andfelony child deprivation based on the death of the same victim to stand. See Stewart v. State,
We note that for the same reasons, Count 15 (second degree child cruelty by causing acceleration/deceleration injuries resulting in hemorrhages of the eyes), which the trial court merged into Count 11, should properly have been merged into Count 17 (first degree child cruelty by causing acceleration/deceleration injuries resulting in hemorrhages of the brain), but this mistake did not result in an error in Appellants’ ultimate sentences.
In the new Evidence Code, this issue is governed by OCGA § 24-1-103 (a) (2).
Our holding on this issue should be understood as limited to the context of plain error and ineffective assistance.
Huitron also raises this claim and the claim discussed in the previous subdivision as trial court error, but “he has waived his claim of error to the extent that he did not timely object at trial.” Thomas v. State,
As relevant to this case, OCGA § 16-12-1 (b) (3) said in May 2010 that a person commits the offense of contributing to the deprivation of a minor when such person “[w]illfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be found to be a deprived child as such is defined in Code Section 15-11-2.” One definition of “deprived child” in the May 2010 version of OCGA § 15-11-2 was a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” These statutes have since been amended several times, largely to change the terminology.
OCGA § 19-7-2 says:
It is the joint and several duty of each parent to provide for the maintenance, protection, and education of his or her child until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, except as otherwise authorized and ordered pursuant to subsection (e) of Code Section 19-6-15 and except to the extent that the duty of the parents is otherwise or further defined by court order.
Huitron was convicted of felony murder based on aggravated assault by causing Esmerelda’s head to impact an unknown object. He correctly does not argue that negligently failing to fulfill the parental duty is a lesser included offense of aggravated assault, and he offers no other lesser included misdemeanor of aggravated assault that under the circumstances of this case would have justified an involuntary manslaughter instruction as to that felony murder count.
OCGA § 16-2-20 (b) says:
(b) A person is concerned in the commission of a crime only if he:
(1) Directly commits the crime;
(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;
(3) Intentionally aids or abets in the commission of the crime; or
(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
If these verdicts actually were mutually exclusive, all of the affected counts would have to be vacated. See Springer,
We also note that these crimes do not merge, as they each have at least one distinct element. See Jeffrey,