Johnson v. State

316 Ga. 672

889 S.E.2d 914

JOHNSON v. The STATE.

S23A0338

Supreme Court of Georgia.

Decided: June 21, 2023

J. M. Raffauf, J.M. Raffauf P.C., 100 Peachtree Street, Suite 1768, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Deborah D. Wellborn, A.D.A., Lenny I. Krick, A.D.A., Sherry Boston, District Attorney, Dekalb County District Attorney's Office, 556 North McDonough Street, Suite 700, Decatur, Georgia 30030, for Appellee.

Pinson, Justice.

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 that (1) the evidence was insufficient to support his convictions; (2) the verdict was contrary to the law and evidence and strongly against the weight of the evidence; (3) the trial court erred by admitting certain photographs taken before and during the autopsy; (4) the trial court erred by limiting the defense's cross-examination of Jordan's mother; (5) the trial court erred by allowing certain testimony by the medical examiner; (6) the trial court erred by excluding testimony about the defense's unsuccessful effort to procure a witness; and (7) the trial court committed plain error by failing to give a jury instruction on accident.

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 guilt, so the evidence was also sufficient as a matter of Georgia statutory law. The trial court's refusal to grant a new trial on the "general grounds" is not subject to this Court's review, so that claim fails. The autopsy photographs, used by the medical examiner to help explain his conclusions about Jordan's injuries, were probative as to both the timing and the manner of injury, and the trial court did not abuse its discretion in concluding that the danger of unfair prejudice from their admission did not substantially outweigh their probative value. And even if the single "pre-autopsy" photograph should not have been admitted, it is highly probable that this photograph—which was far less graphic than the properly admitted autopsy photographs—did not contribute to the verdicts. Finally, the trial court did not abuse its discretion in prohibiting the defense from cross-examining Jordan's mother on a topic not relevant to Johnson's guilt or innocence; did not plainly err in allowing certain testimony by the medical examiner on a subject which his experience qualified him to speak on; did not abuse its discretion in refusing to allow testimony about the defense's effort to procure a witness, when it had failed to avail itself of the statutory material witness subpoena procedure; and did not plainly err in failing to give a jury instruction on accident because this theory was at odds with not only Johnson's primary defense but also the overwhelming weight of the evidence. We therefore affirm Johnson's convictions and sentence.

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 but not distraught. She also said that Johnson told her that Jordan's twin brother sometimes "head-butted" her, but she did not believe Jordan's injuries could have happened that way.

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 or kicked with great force, or falling from a "great height." In addition, the effects of the head trauma would have been noticeable within minutes to an hour of the trauma, such that Jordan would not have engaged in normal movement or made normal noises.

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 to Johnson's grandmother's house. Johnson's father, who was at the house, took Jordan in the house for about five minutes; at that time, Jordan seemed "normal." After a short time, Cole took Johnson and the twins to White's home, where they were to stay that night. She dropped them off, went back to her mother's home, and later went out with friends. Throughout the night and into the morning, Cole exchanged texts with Johnson, checking on the twins. Johnson never indicated there was anything unusual, until he called early on the morning of April 4 to tell her Jordan was unresponsive. Ultimately, on April 7, once the extent of Jordan's injuries was known, the decision was made to take her off life support.

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 them.

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 aunt got home. His aunt saw the twins and all was fine. Johnson said that the twins slept with him in a queen-sized bed and that they went to sleep around 10:00 p.m. A few hours later, Jordan awoke, crying, and he noticed her brother was kicking her. He shifted his son and calmed Jordan, and they went back to sleep. Johnson woke up again around 5:00 a.m. and noticed that his son was situated with his "torso laying on [Jordan]." He moved his son and picked up Jordan, who he realized was unresponsive. So he "shook her lightly" and tried to rouse her with some water; when that didn't work, he went to his aunt, who told him to call 911. Woodard described Johnson's demeanor as "calm," "cooperative," and "relaxed," in contrast to Cole, who was "visibly upset." Johnson said that April 3 was the second time he had had the twins with him overnight by himself. Although Johnson would later claim he accidentally hit Jordan's head against the bed's headboard before they all went to sleep that night, Johnson made no mention of this in his interview with Woodard.

Dr. Messner, who was qualified as an expert in child abuse pediatrics, testified that Jordan's CT scans showed fractures on the back and both sides of her skull. Based on their length, and the fact that they were "...