JONES v. THE STATE.
S16A1742
Supreme Court of Georgia
February 27, 2017
Reconsideration denied March 30, 2017
300 Ga. 814
BOGGS, Justice.
FINAL COPY; Murder. Glynn Superior Court. Before Judge Harrison.
In 2010, Daryl Keon Jones was tried before a jury on charges of malice murder, felony murder, and cruelty to children in the first degree in the death of his girlfriend‘s 17-month-old daughter.1 The jury acquitted Jones of malice murder and was unable to reach a verdict on the charges of felony murder and cruelty to children, resulting in a mistrial on those counts. When the State retried Jones in 2012, the jury found him guilty of both felony murder and cruelty to children in the first degree. Jones now appeals from the denial of his motion for
1.
Viewed in the light most favorable to the verdict, the evidence presented at Jones’ second trial showed that the 17-month-old victim, B. H., and her mother lived with Jones, who was the mother‘s boyfriend, and Jones’ three children from a prior marriage, including his eight-year-old son, A. J.
On April 30, 2009, B. H.‘s grandfather went to Jones’ apartment at noon to visit B. H. and stayed for three hours to play with her. He described her as fully aware and awake throughout the visit, but noticed small bruises on top of her head and on her right eyebrow. The grandfather testified that a month earlier, he had spoken to the mother about the bruises B. H. “had gotten over some period of time. . . . [B. H.], especially during the last two months of her life, had constant bruising.”
When the grandfather left the apartment at around 3:00 p.m., B. H. seemed fine. Some time after this, the mother left to attend a class, and Jones was left alone in the apartment with the children. That afternoon, A. J. heard crying and noise and witnessed Jones grab B. H. by the back of the head and hit her
B. H. was taken to the hospital by ambulance, and though still breathing, was determined to be “very nearly brain dead.” She had multiple facial bruises and retinal bleeding, and a CT scan revealed her brain was swelling and covered with blood. The physician who treated her testified at trial that the bleeding was consistent with cases involving abuse or “very, very high speed car accidents where a child has been ejected and rolled,” and that B. H.‘s injuries were not consistent with a fall or with an underlying medical condition. She concluded that B. H. would “have had to take multiple, repetitive beatings to the head” to result in the injuries she sustained. B. H. died from her injuries when repeated CPR attempts became futile.
A forensic pathologist performed an autopsy on B. H. and observed 36
The evidence outlined above was sufficient to authorize a rational jury to find beyond a reasonable doubt that Jones was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Walden v. State, 289 Ga. 845, 846 (1) (717 SE2d 159) (2011) (“The jury was free to reject Appellant‘s version of events, which it obviously did.” (Citations and punctuation omitted.))
2.
Jones asserts that the trial court erred in denying his plea in bar because double jeopardy prohibited his retrial. “The allied doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.” (Citations omitted.) Bravo-Fernandez v. United States, __ U. S. __ (I) (A) (137 SCt 352, 196 LE2d 242) (2016). The United
Thus, rather than merely examining the verdict, to determine the preclusive effect of an acquittal the court must examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.
(Citations and punctuation omitted.) Giddens v. State, 299 Ga. 109, 114 (2) (a) (786 SE2d 659) (2016), citing Ashe, supra. And “[t]o effectuate this preclusion, the defendant has the burden of proving from the record what facts were ‘actually and necessarily decided in his favor.‘” (Citation omitted.) Id. at 113 (2) (a).
It is relevant to our analysis here that, in Yeager v. United States, 557 U. S. 110 (129 SCt 2360, 174 LE2d 78) (2009), the Supreme Court explained that
[a] hung count is not a “relevant” part of the “record of [the] prior proceeding.” See Ashe, 397 U. S., at 444, . . . Because a jury speaks only through its verdict, its failure to reach a verdict cannot--by negative implication — yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that Ashe suggested should be part of the preclusion inquiry.
With these principles in mind, we turn to Jones’ argument that his retrial was barred by the principle of collateral estoppel embodied in the Double Jeopardy Clause. The original indictment charged Jones with malice murder for “unlawfully and with malice aforethought, caus[ing] the death of [B. H.] by inflicting multiple blunt force injuries to her head and face,” cruelty to children in the first degree for “maliciously caus[ing] [B. H.] cruel and excessive physical pain by inflicting multiple blunt force injuries to her head and face,” and felony murder for causing the death of B. H. “while in the commission of the felony offense of cruelty to children in the first degree” as alleged in the cruelty to children count.
The jury acquitted Jones of malice murder and was unable to reach a
In opening statements at the first trial, the State focused upon A. J.‘s testimony that he witnessed Jones abuse B. H. on this and other occasions as well as the forensic evidence of the age and extent of her injuries and the cause of her death. Jones’ counsel argued in opening that B. H. often fell and hit her head, that the evidence would show why A. J. made the allegations against Jones, and that Jones “is not the one that should be before this Court on this.”
At trial, Jones testified and denied killing B. H., explaining that he loved the child. When asked about the circumstances of her death, Jones explained that
In closing arguments, Jones’ counsel questioned A. J.‘s truthfulness and argued that the evidence points to him as the person who caused B. H.‘s death. Counsel summed up his argument asking the jury to find Jones not guilty on each count, asserting that he “didn‘t do it.”
In its instructions to the jury, the trial court charged that for murder, “the homicide must have been committed with malice,” and that for cruelty to children in the first degree, the cruel and excessive physical pain must have been maliciously caused. In connection with the crime of first degree cruelty to children, the court instructed that malice “means an actual intent to cause . . . physical pain, without justification or excuse. Malice is also the wanton and willful doing of an act with awareness of a . . . plain and strong likelihood that such particular harm may result.” The court further instructed that cruelty to children in the first degree is a felony, and that felony murder is committed when a person causes the death of another “with or without malice” in the commission of a felony.
Jones asserts that he did not offer any alternative theories, arguing only that he did not commit the crimes. The parties argued in opening and closing
Jones argues that the State did not present the jury with multiple theories of malice and intent, and that the jury necessarily decided he did not maliciously intend to injure B. H. But as explained above, Yeager prohibits consideration of the jury‘s failure to reach a verdict on the cruelty to children count (and the felony murder count predicated on cruelty to children), in determining the
As Jones has failed to prove that collateral estoppel applies in this case, the trial court did not err in denying his plea in bar based on double jeopardy.
Judgment affirmed. All the Justices concur.
Decided February 27, 2017 – Reconsideration denied March 30, 2017.
Murder. Glynn Superior Court. Before Judge Harrison.
James A. Yancey, Jr., for appellant.
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for appellee.