Appellant Marlon Jones appeals his convictions stemming from the death of his daughter Jania Parker-Jones.
1. (a) Viewed in a light most favorable to upholding the jury’s verdicts, the evidence shows as follows. At the time of the events in question, appellant had four children: a ten-year-old daughter, two toddlers — a boy and a girl, and the victim who had just turned a year old. At any given time, three of the children lived with appellant in his house.
At trial, appellant’s eldest daughter testified that on the night of March 10, 2012, she and her toddler brother were in her room watching television while appellant wаs in his bedroom with the victim. The daughter said she heard a bump and then heard the victim crying. The daughter said it sounded like the victim had fallen onto the floor. According to an investigator, who testified at trial, the daughter said she ate some cereal that night around 10:00 after hearing the bump and the victim’s cry. The daughter said she fell asleep and was later awakened by appellаnt telling her to get dressed. In the early morning hours of March 11, appellant gathered the children into his truck and drove to the house of his girlfriend Marshana Saddler. Before leaving appellant’s house to go to Saddler’s home, the daughter said she touched the victim and noticed she was not breathing.
Saddler testified that she and appellant lived within 10 to 15 minutes of each other. On March 11, she said she was awakened by the arrival of appellant and the children at 4:49 a.m. She said she dressed in about five minutes and then she, appellant, and all four children got into her minivan to drive to the hospital.
The emergency room registration clerk who first encountered appellant when he
As part of investigating the victim’s death, the police searched Saddler’s minivan and appеllant’s house. Nothing of evidentiary value was found in the minivan. An officer testified that when searching appellant’s bedroom, there was a strong odor of vomit. The police found a fitted bedsheet which appeared to have vomit on it; some bedsheets which appeared to have blood on them; and a playpen blanket which appeared to hаve fecal matter on it. In addition, an officer testified that the playpen, which is where the victim slept, had a strong smell of vomit.
The State’s expert medical examiner testified the cause of the victim’s death was blunt force trauma to the head and the manner of death was homicide. The victim’s autopsy revealed a large amount of bruising on the right side of her scаlp; bruising on the corner of her right eye; hemorrhaging around the optic nerves; hemorrhaging in the retinas; a skull fracture; hemorrhaging on the brain’s surface; and bruising of the brain. The medical examiner opined that the victim’s head had been impacted four times. She said the victim’s injuries were consistent with a high energy impact and inconsistent with a household fall. She also noted that vomiting would be a manifestation of head trauma and testified that, based on the cells forming around the victim’s injuries, it was likely the victim was alive for three hours following the trauma.
Appellant took the stand at trial, testifying he had the victim in his arms and was on his way from his bedroom to the kitchen to get a diaper when he tripped and fell with the victim, dropping her. He said the victim hit the wall and then fell to the floor. He picked the victim up, she cried and then stopped. He changed the victim’s diaper, put the victim in her playpen with a bottle of milk that she did not drink, and then fell asleep. Appellant woke up in the early hours of the morning and when he checked on the victim, he saw she had blood in her nostrils. At that point, he woke up the other children, made sure they drеssed, and drove with the three children to Saddler’s house. Appellant admitted he did not call 911 from his house although he had a working phone; admitted he passed at least one fire station on the way to Saddler’s house; and admitted that he did not heed Saddler’s admonitions to call an ambulance when he arrived at her house. Appellant told his eldest daughter that he was afraid he would get into trouble regarding the victim.
(b) The jury returned verdicts of guilty on the counts of felony murder, predicated on cruelty to children in the second degree for failing to obtain medical treatment for the victim; deprivation of a minor for failing to obtain medical treatment for the victim; and two counts of “cruelty to children” for maliciously causing the victim excessivе pain.
(c) The crimes at issue were committed in 2012 and appellant was sentenced in 2013. Prior to 2014, the sentences for causing a death, including a death caused by cruelty to сhildren in the second degree, were imprisonment for life (with the possibility of parole), imprisonment for life without parole, or death. See OCGA § 16-5-1 (d) (2011). Effective July 1, 2014, the legislature amended OCGA § 16-5-1 to create the offense of murder in the second degree and to make the sentence for a death caused by cruelty to children in the second degree no less than ten yeаrs and no more than 30 years in length. See OCGA § 16-5-1 (d) and (e) (2); Ga. L. 2014, p. 444, § 1-1. Appellant argues he is entitled to be resentenced in accordance with this amendment. However, since the General Assembly did not make the amendments to OCGA § 16-5-1 retroactive, appellant was properly sentenced in conformity with the law as it was when the crime was committed. See Fleming v. State,
(d) There is a merger error concerning Counts 7 and 8, which are the two counts of “cruelty to children,” for which the jury returned verdicts of guilty Because there was no evidence of a deliberate interval of time between the acts of cruelty causing bleeding of the victim’s brain (Count 7) and causing retinal hemorrhages (Count 8), the trial court erred when it sentenced appellant on both of these counts. See Gomez v. State,
2. Appellant contends trial counsel rendered constitutionally ineffective assistance when he failed to object to leading questions posed by the State to its witnesses and when he failed to secure a medical expert. In order to prevail on a claim of ineffective assistance of counsel, appellant
must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.
(Citations and punctuation omitted.) Pruitt v. State,
(a) At the motion for new trial hearing, trial counsel testified that it is his practice
(b) The record shows trial counsel made an attempt to secure a medical expert to testify at trial, but found out days before trial was to commence that the expert he was pursuing was not a viable option for testifying on behalf of the defense. Trial counsel moved for a continuance on the first day of trial for the express purpose of finding another expert, but the trial cоurt denied the motion. At the motion for new trial hearing, appellant presented an expert medical witness who agreed with the State’s expert medical examiner that the victim’s death was caused by blunt force trauma to the head. As to the manner of death, appellant’s medical expert testified that he could not rule out an accidental manner оf death; however, he also testified that he could not rule out a non-accidental manner of death. Given the equivocal nature of the testimony of appellant’s proffered medical expert, appellant has failed to meet his burden of showing that there was a reasonable probability the outcome of the trial would have been different had his trial counsel been able to secure an expert in a timely manner to testify at trial. See Richardson-Bethea v. State,
3. Appellant alleges the trial court erred when it failed to grant appellant’s request for a mistrial. The record shows that a break was taken during appellant’s cross-exаmination of the State’s expert medical examiner. During the break, the prosecutor was seen talking to the medical examiner, and trial counsel raised the matter outside the presence of the jury. The trial court allowed appellant and the prosecutor to voir dire the medical examiner as to what transpired during the break. In sum, during the conversatiоn at issue, the prosecutor confirmed the medical examiner’s testimony that the victim’s head was impacted four times; discussed a possible scheduling conflict; and discussed the manner in which defense counsel was asking questions — namely that, although the medical examiner stated she had no problem with defense counsel’s questions, the prosecutor had a legal basis fоr positing his objections. Defense counsel moved for a mistrial, not based on the “nature” of what was discussed, but based on the “stark difference” between the medical examiner’s responses when she was questioned by defense counsel and her responses when she was questioned by the prosecutor. According to defense counsel, the “stark difference” in “exрlanation tends to suggest that something further was discussed...The State argued there were no grounds for a mistrial because there was no coaching of the witness or other impropriety.
Whether to grant a mistrial is a matter of the trial court’s discretion. Jackson v. State,
Judgment affirmed in part and vacated in part.
Notes
The crimes occurred on or about March 10-11, 2012. On March 6, 2013, a Clayton County grand jury indicted appellant on three counts of felony murder, aggravated battery, aggravated assault, cruelty to children in the first degree, two counts of “cruelty to children,” cruelty to children in the second degree, and contributing to the deprivation of a minor. Appellant was tried from October 21-25, 2013, with the jury acquitting appellant of two felony murder counts, aggravated battery, aggravated assault, and cruelty to children in the first degree; but returning verdicts of guilty on the remaining counts for which he was indicted. On October 29, 2013, the trial court sentenced appellant to life in prison for felony murder plus a number of years. Appellant moved for a new trial on December 2, 2013, and amended his motion on August 22, 2014, andonJuly 18, 2016. The trial court held hearings on the motion for new trial, as amended, on September 30, 2016, andón October 11, 2016. The trial court denied the motion as amended on October 14, 2016. Appellant timely filed a notice of appeal and, upon receipt of the record, the case was docketed to the April 2017 term of this Court and submitted for a decision to be made on the briefs.
The two toddlers wеre the children of appellant and his girlfriend Marshana Saddler. According to Saddler’s testimony, she and appellant would alternate custody of each of the toddlers every other week. On the night in question, appellant had the victim, the ten-year-old, and his toddler son at his house. His toddler daughter was at Saddler’s house.
On one occasion, the victim had a fever аnd on the other occasion, in October 2011, the victim had a severe diaper rash.
These last two counts related to the bleeding of the victim’s brain and the hemorrhaging of her retinas.
There was some discussion among the trial court and counsel for the parties that the rule of sequestration had been violated. That rule, however, was not implicated becausе there was no allegation that the medical examiner was in the courtroom while other trial witnesses were testifying or that the medical examiner colluded with another trial witness to shape or fabricate testimony. See, e.g., Davis v. State,