S23A0338. JOHNSON v. THE STATE.
S23A0338
In the Supreme Court of Georgia
Decided: June 21, 2023
PINSON, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Reginald Demarcus Johnson was convicted of felony murder and first-degree cruelty to children in connection with the death of his six-month-old daughter, Jordan.1 On appeal, Johnson contends
Each of these claims fails. When viewed in the light most favorable to the verdicts, the evidence at trial showed that Jordan died from blunt force trauma to the head that was intentionally inflicted within the twelve-hour period when she was in Johnson‘s sole care and that the evidence was sufficient to sustain the convictions as a matter of constitutional due process. And the jury was authorized to find that the evidence, although circumstantial, excluded every reasonable hypothesis other than that of Johnson‘s
1. The evidence at trial showed as follows.2
(a) At 6:40 a.m. on April 4, 2016, emergency responders were dispatched to a DeKalb County home after Johnson made a 911 call to report that his six-month-old daughter, Jordan, was unresponsive. One of the paramedics who responded testified that she could tell Jordan had suffered a brain injury, based on her unequally dilated pupils and the swelling and bruising on her right temple. She said that Johnson at the time seemed a little nervous
Another of the emergency responders testified that Johnson‘s demeanor “wasn‘t like a frantic parent would be.” That witness testified that Johnson told her that he woke up in the night and saw Jordan‘s twin “laying on top of her suffocating her.” When she told Johnson his story was “not adding up” and that Jordan could not have sustained her injuries that way, Johnson suggested that “maybe it was when [she] rolled off the bed.” He denied dropping her by accident or hitting her, then “got quiet” and suggested that “maybe the other child did it.”
The pediatric emergency physician who treated Jordan at the hospital testified that Jordan‘s CT scan showed fractures on both sides of her skull and bleeding in the brain. Those injuries, he opined, could not have been caused by another six-month-old in the ways Johnson suggested and would have had to have resulted from “major trauma” such as a car accident without seatbelts, getting hit
A hospital social worker who spoke with Johnson testified that Jordan‘s injuries were “completely inconsistent” with Johnson‘s story and that, based on the severity of the injury and the absence of any obvious explanation for it, she suspected child abuse and determined that law enforcement needed to be contacted.
(b) Jordan‘s mother, Ciara Cole, testified about the chronology of events on April 3 and 4. At the time, she and the twins were living at her mother‘s home, and Johnson, who had lived with them at one time, was living with his aunt, Sallie White. On April 3, Cole and the twins were at her mother‘s home until about 2:30 p.m., when she left for a short time to pick Johnson up from work. When they returned, they were arguing. While she took a shower, Johnson took the twins, left the house, and walked to a nearby restaurant. She tracked them down and drove there, and they all left together to go
Cole testified that she had suffered from depression after the twins were born. She also admitted that, after Jordan died, she began using cocaine and had been arrested for cocaine possession and theft by shoplifting, and that such charges were still pending at the time of trial. Cole said she had been offered no deal in exchange for her testimony here. In addition, Cole admitted that her other children “live with other people right now,” although she visits with
Cole‘s mother, Robbie Johnson, testified that on April 3, Cole and the twins were at her home until the mid-afternoon; that she had awakened around lunchtime that day and nothing was unusual; that Cole and Johnson were arguing after Cole picked him up from work; and that Jordan was fine. She also testified that after Jordan‘s death, Cole had a “nervous breakdown” and started using cocaine.
(c) Dr. Stephen Messner, the chair of the hospital‘s child abuse pediatrics department, and Peggy Woodard, a social worker with the Department of Family and Children Services (DFCS) who was called in to assess Jordan‘s case, both testified about the hospital‘s investigation. Woodard, together with a hospital fellow working under Dr. Messner‘s supervision, interviewed Johnson at the hospital. Johnson told Woodard he did not know what had caused Jordan‘s injury, but guessed that her twin brother had kicked her. He said that Jordan had been acting normally on April 3 but that she had not taken much of her bottle. He said he was alone with the twins from around 6:30 until around 9:30 that evening, when his
Dr. Messner, who was qualified as an expert in child abuse
(d) In an interview at the hospital with a DeKalb County police detective, Johnson maintained that he did not know what had happened and that Jordan had been fine the night before, other than refusing to take her bottle. And again he mentioned that Jordan‘s brother was lying on his sister‘s head at one point and suggested that perhaps he had kicked or head-butted her during the night. He
The lead detective in the case, Gregory Moore, testified that, after Jordan‘s death, he tried to contact Johnson on April 7 and 8 but could not reach him, and Johnson failed to return the calls. After another unsuccessful try on April 9, Detective Moore obtained an arrest warrant. Johnson was ultimately arrested on April 10 when he appeared in court in an unrelated DFCS proceeding—at which he appeared only after initially failing to show up and being called in by a DFCS case-worker.
Following Johnson‘s arrest, Detective Moore interviewed Johnson, an audio recording of which was played for the jury. Johnson continued to insist that he had done nothing to hurt Jordan, that he “wasn‘t rough with” the twins, that Jordan was “fine,” and that he did not know what had happened to her. He denied he had ever “put hands on” his kids or any of his romantic partners. He said he “wasn‘t even angry that night.” And he said no accident had happened. He then suggested that “maybe [he] fell asleep and rolled
(e) The medical examiner who performed Jordan‘s autopsy, Dr. Gerald Thomas Gowitt, testified that Jordan had significant head trauma but few external injuries, which was not unusual in a case of child abuse. Examination of Jordan‘s head revealed substantial hemorrhaging and bruising and multiple skull fractures, including a 10-inch fracture running from one side to the other and additional
Dr. Gowitt also testified that once a fatal head injury is inflicted, the symptoms appear almost immediately and are obvious, even to a layperson. So too, he said, for the retinal hemorrhaging; after an injury of that type, a child likely would be unconscious and would not be smiling, cooing, or otherwise responding. Because of the lack of external injuries, Dr. Gowitt opined that it was likely that Jordan had been slammed into something hard, smooth, and broad, and that an adult male would be capable of creating enough force to cause those injuries. According to Dr. Gowitt, six-month-olds have the same sensory nerves as adults, so they have the same ability to
Dr. Gowitt concluded that the cause of death was craniocerebral trauma and the manner of death was homicide.
(f) Johnson‘s counsel cross-examined the State‘s medical experts about the concept of a “lucid interval,” which can occur after a person has suffered head trauma. As these experts testified, head trauma victims typically experience confusion, loss of consciousness, or other symptoms immediately after sustaining the injury, but that initial period is sometimes followed by a “lucid interval” during which the victim appears “asymptomatic,” before symptoms reappear. The emergency physician, while agreeing on cross that he could not “rule . . . out medically” the theory that Jordan had experienced a lucid interval, testified on redirect that “you don‘t suffer this degree of trauma . . . and then have a lucid period.” Dr. Messner testified that the “vast majority” of lucid intervals occur when the patient is experiencing epidural bleeding rather than—as
Johnson‘s counsel also unsuccessfully sought, in cross-examining Cole and Cole‘s mother, to elicit that Cole‘s sister and brother had been present during the day on April 3 when she and the twins had been at her mother‘s home. Johnson‘s counsel did, however, elicit from Woodard that her notes indicated Cole had told her that her brother and sister had been playing with Jordan at their mother‘s home on April 3.
(g) After the State rested, the defense called its own expert forensic pathologist, Dr. Janice Ophoven, who concluded that Jordan had died from blunt force trauma to the head, “consistent with a single impact,” and opined that Jordan could have experienced one or more lucid intervals during which her body was
Johnson himself testified, maintaining that he had done nothing to cause his daughter‘s death or any pain and described himself as having a loving, kind, and peaceful nature. He said he had concerns about Cole‘s depression and had on a prior occasion reported those concerns to a DFCS worker in connection with a hospital visit for Jordan‘s twin brother. He recounted Cole‘s
When asked why he had failed to mention the headboard incident until his interview with the detectives, Johnson replied that he “honestly just forgot about it.” And when asked about the calls from Detective Moore he never returned, he explained that he “didn‘t pay attention” to his phone during that time because he was “grieving,” and said he had already given a statement to the detective at the hospital. As to why he had not initially appeared at the DFCS proceeding on April 10, he said his family had told him he did not need to be there.
Johnson admitted that he had been convicted of domestic violence in Tennessee in connection with a fight with his ex-wife‘s cousin, which left the cousin bloodied and momentarily unconscious. He admitted on cross-examination that he told police at the time that he had “snapped.” Johnson also admitted that, on one occasion, an argument with Cole had become “physical” and he had given her a black eye. In addition, he admitted that he had been previously convicted of obstruction and giving a false name and that in this case he had violated the condition of his bond that required him not to contact any witnesses.
The defense also presented Johnson‘s aunt, Sallie White, who testified that she did not notice anything amiss with Jordan on the evening of April 3 and did not hear any commotion or unusual noises during that night. Johnson‘s father also testified, noting that on the afternoon of April 3 he noticed that Jordan was “not responding” to him but figured she was just sleepy. Various character witnesses, including family, friends, and Johnson‘s ex-wife, also testified, describing Johnson as loving, kind, and a good father.
2. Johnson contends that the evidence was insufficient, both as a matter of constitutional due process and as a matter of Georgia statutory law, to support his convictions.
(a) When assessing a challenge to the sufficiency of the evidence as a matter of constitutional due process, the evidence presented at trial is viewed in the light most favorable to the verdicts to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of all the crimes of which he was convicted. See Jones v. State, 304 Ga. 594, 598 (2) (820 SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)). In making this determination, we do not evaluate witness credibility, resolve inconsistencies in the evidence, or assess the weight of the evidence; these tasks are left to the sole discretion of the jury. See Walker v. State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014). The jury‘s verdicts will be upheld as long as some competent evidence, even if contradicted, supports each fact necessary to make out the State‘s case. See Jones, 304 Ga. at 598 (2).
Here, the evidence viewed most favorably to the verdicts showed that Jordan suffered non-accidental blunt force injuries during a time when Johnson was the only person present and capable of inflicting such injuries. The jury was authorized to not believe Johnson‘s story, and to credit the medical experts’ testimony that Jordan‘s injuries would have been apparent within a short time after their infliction, and that the theory that Jordan had experienced a “lucid interval” during the afternoon of April 3 was unsound. And the jury was authorized to find that Jordan had experienced cruel and excessive pain from the injuries she sustained. See Moore v. State, 283 Ga. 151, 153 (1) (656 SE2d 796) (2008) (noting that “evidence of a child‘s age, the extent of injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck is sufficient evidence from which the jury can conclude whether the defendant caused the child cruel or excessive physical pain“). Therefore, the evidence was sufficient as a matter of constitutional due process to support Johnson‘s convictions for felony murder and cruelty to children in
the first degree. See id. (affirming convictions for felony murder and first-degree cruelty to children).(b) A conviction on circumstantial evidence is authorized if the proved facts “exclude every other reasonable hypothesis save that of the guilt of the accused.”
Here, the evidence authorized the jury to reject as unreasonable the alternative hypothesis that someone other than Johnson—i.e., Cole or Cole‘s mother, sister, or brother—caused Jordan‘s fatal injuries at some point before Johnson assumed her care. There was no evidence that Jordan was exhibiting any signs of
3. Johnson next contends that the verdict and judgment are “decidedly and strongly against the weight of the evidence.”
“Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is ‘contrary to . . . the principles of justice and equity,’
As is plain from the order denying Johnson‘s motion for new trial, the trial court performed its role as the thirteenth juror. In its order, the court noted that, after considering “[the] conflicts in the evidence, the credibility of witnesses, and the weight of the evidence,” “[t]he Court, in an exercise of discretion finds that the verdict was neither ‘contrary to evidence and the principles of justice and equity’ . . . nor ‘decidedly and strongly against the weight of the evidence[.]‘” The trial court‘s decision in this regard is not subject to our review—this Court “does not sit as an arbiter of the general grounds, which are solely within the discretion of the trial court.” Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023) (citation
4. Johnson contends that the trial court erred by admitting into evidence certain photographs from before and during Jordan‘s autopsy. Before trial, Johnson moved to exclude the photographs, arguing that they were not relevant and were gruesome and unduly prejudicial under
(a) Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
(b) Five of the six contested photographs were taken during the autopsy. Two of those photographs depicted, from different angles, Jordan‘s head with the scalp peeled back to show the hemorrhaging beneath the scalp. Three others showed the various fractures on Jordan‘s skull. At the pretrial hearing, the State told the trial court that Dr. Gowitt had specifically selected those photographs for use during his testimony. During trial, Dr. Gowitt referred to these photographs while describing the hemorrhaging and bruising underneath Jordan‘s scalp and the multiple fractures, some
The trial court did not abuse its discretion in admitting these five photographs. Autopsy photographs may be relevant to show the nature or extent of a victim‘s injuries. See Albury, 314 Ga. at 462 (3); Lanier v. State, 310 Ga. 520, 527-528 (4) (852 SE2d 509) (2020). These photographs, which assisted the medical examiner in describing the nature and severity of Jordan‘s injuries, were highly relevant to the issues of both how and when the injuries were sustained. Because both the timing of the injuries and the manner of their infliction were contested issues in the case, the photographs’ probative value was high. See Albury, 314 Ga. at 462 (3) (autopsy photograph had “significant probative value” in supporting State‘s theory of how injuries were inflicted); Lanier, 310 Ga. at 527-528 (4) (autopsy photographs admissible where they “corroborated the State‘s evidence of the circumstances of the killings“). And although
(c) The remaining photograph was taken before the autopsy. This photo showed Jordan as she arrived from the hospital, with various tubes, wires, and a neck collar still attached to her body. The defense argued that the photo was inflammatory because of all the “apparatuses” on Jordan; the State argued that was its “identification” photo, as it had the medical examiner‘s case number on it, and it was being used to establish that the subject of the autopsy was in fact the victim. After looking through various full body pictures of the victim, the court ruled that the photograph at issue could be used “as an ID shot.”
The relevance of the pre-autopsy photograph is questionable
“Erroneous evidentiary rulings are subject to a harmless-error test.” Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509) (2022). A nonconstitutional error is harmless if it is “highly probable that the error did not contribute to the verdict.” Id. (citation and punctuation omitted). The burden to make this showing is the State‘s to bear, and in determining whether the showing has been made, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have weighed it. Id. (citation and punctuation omitted). Here, the single pre-autopsy photograph was not nearly as
5. Johnson next contends that the trial court “erred and violated the Sixth Amendment right of confrontation” by limiting the defense‘s cross-examination of Cole on certain topics.
Both the United States and Georgia Constitutions guarantee to an accused the right to confront and cross-examine the witnesses against him. See
Here, Johnson contends that the trial court unduly limited his right to confront Cole on three topics: (1) her purported dishonesty
Johnson‘s counsel cross-examined Cole at length on a variety of topics, including her relationship with Johnson, her chronology of the events of April 3 and 4, whether her brother and sister were present at her mother‘s home on April 3, and her statements to Woodard and to law enforcement on April 4. Johnson‘s counsel also cross-examined Cole on her drug and alcohol abuse, her pending felony charges, her depression, and the fact that she had lost custody of Jordan‘s twin and their older half-brother. So Johnson was afforded a “thorough and sifting” cross-examination of Cole as a general matter. And as to the specific topics of Cole‘s depression and her loss of custody, the trial court allowed Johnson to question Cole about both. The only limitation the court imposed on these topics was on questioning, related to the hospital visit during which
The trial court also prohibited Johnson‘s counsel from questioning Cole about her purported dishonesty about the paternity of the twins’ half-brother. But although Johnson correctly notes that “[t]he credibility of a witness may be attacked by any party,”
Johnson‘s claim that he was improperly limited in his ability to cross-examine Cole therefore fails.
6. Johnson contends that the trial court erred in allowing the medical examiner to testify about confessions in child-abuse cases, because that subject was outside the field in which he was qualified as an expert. Dr. Gowitt testified on direct examination that he had been involved with at least 200 cases involving fatally abused children, and that he had done consulting work for defendants in 40 to 50 such cases. He testified that in “about half” of the cases, the defendant had confessed to the abuse; that “perpetrator confessions are something that we read frequently” when doing defense work; and that he was familiar with “many articles” in the “pediatric
Johnson now claims that the court erred in admitting this testimony because it was outside the scope of forensic pathology.6 But because Johnson did not object on this basis at trial, we review this claim only for plain error. See Mann v. State, 307 Ga. 696, 704 (2) (e) (838 SE2d 305) (2020). “To show plain error, an appellant must show that (1) the alleged error was not affirmatively waived, (2) it was obvious beyond reasonable dispute, and (3) it affected the appellant‘s substantial rights, which ordinarily means showing that it affected the outcome of the trial.” Moore v. State, 315 Ga. 263, 272-273 (4) (882 SE2d 227) (2022).
7. Johnson contends that the trial court erred in excluding testimony from a private investigator about his unsuccessful efforts on behalf of the defense to locate and serve a subpoena on the medical fellow who had assisted in the hospital‘s investigation into possible child abuse.
Before trial, the defense apparently had tried to locate the medical fellow who had helped conduct interviews with Jordan‘s family members and had written a report with conclusions, which
Johnson now claims that the exclusion of this evidence violated his due process rights, but in support of this argument he cites only
8. Lastly, Johnson contends that the trial court committed plain error by failing to give a jury instruction on accident. See
In his written requests to charge, Johnson asked for an instruction on the affirmative defense of accident. At the charge conference, defense counsel argued that “our defense is that we don‘t know what happened. There‘s not enough evidence to rule out.
The court‘s refusal to give an accident instruction was consistent with the law in effect at the time of trial, which held that the accident defense “generally requires an admission by the defendant that [he] committed the act that caused the victim‘s death.” Kellam v. State, 298 Ga. 520, 522 (2) (783 SE2d 117) (2016) (citation and punctuation omitted). But when we review jury instructions for plain error, we look to the law in effect at the time of our review. See Lyman v. State, 301 Ga. 312, 317 (2) (800 SE2d 333) (2017) (in the review of asserted plain error under
Nonetheless, this error was unlikely to have “affected the outcome of the trial.” Moore, 315 Ga. at 273 (4). Johnson‘s primary
Judgment affirmed. All the Justices concur.