Tyson v. State

312 Ga. 585

864 S.E.2d 44

TYSON

v.The STATE.

S21A0774

Supreme Court of Georgia.

Decided: October 5, 2021

Leigh Stevens Schrope, Elizabeth Ann Brandenburg, Law Firm of Shein & Brandenburg, 2393 North Decatur Road, Decatur, Georgia 30033, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Alex Martin Bernick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, David Parks White, District Attorney, Northern Judicial Circuit District Attorney's Office, P.O. Box 515, Hartwell, Georgia 30643, for Appellee.

Boggs, Presiding Justice.

After a 2008 jury trial, LeMichael Tyson was convicted of felony murder and cruelty to children in connection with the beating death of his girlfriend's 22-month-old daughter, Kei'Mariona Bradley. He appeals, asserting 11 enumerations of error. For the reasons stated below, we affirm.¹

The evidence at trial showed that in April 2006, Tyson and the victim's mother, Crystal Bradley, became involved in a romantic relationship. In February 2007, Tyson moved in with Bradley. On April 13, 2007, after finishing her shift as a certified nursing assistant at Quiet Oaks Nursing Home in Crawford, Bradley picked up Kei'Mariona from her babysitter. Kei'Mariona was sick that day and had been vomiting, but showed no other signs of injury. That evening, Bradley gave Kei'Mariona a bath before putting her to bed. Bradley testified that because her daughter was in daycare, she would check her "from head to toe" for any bruises or scratches ; that evening, she observed no bruises, scratches or marks.

The next day, Bradley left for work at 6:00 a.m., and Tyson had Kei'Mariona in his care for the rest of the day. At approximately 5:00 p.m., Tyson called Bradley and told her that "Kei'Mariona had stopped breathing." At 5:39 p.m., Tyson called 911 to report that Kei'Mariona was not breathing, and ambulances were dispatched. Bradley returned home and found the paramedics already at the apartment.

A paramedic testified that Kei'Mariona was unresponsive, without a pulse, and limp, but she put the child on a respirator and started CPR. The paramedic observed bruises on the child's chest. At Athens Regional Hospital, medical staff pointed out bruises and marks on the child that Bradley had not seen before. From Athens Regional, the child was transported to Egleston Children's Hospital in Atlanta and remained unresponsive en route.

The next morning, Kei'Mariona was pronounced dead from blunt force injuries. The medical examiner testified that Kei'Mariona had significant hemorrhage in her eyes consistent with violent shaking of her body, as well as contusions on her head and internal bleeding and swelling of the brain indicating trauma. The medical examiner concluded that Kei'Mariona's death resulted from "significant traumatic injuries of the head," normally seen in a car accident, a fall from a very significant height, or an assault. She testified that the fatal injuries would have caused immediate severe effects and abnormal behavior, and that the injuries were not accidental but were inflicted deliberately.

Tyson was interviewed by GBI agents and confirmed that Kei'Mariona was with him for the entire day while he retrieved her car seat from Bradley's car at the nursing home, visited his mother's house, and ran several errands before returning home. Tyson stated that as he was driving back to the apartment with Kei'Mariona, he saw Bradley leaving the post office going back to her job, and he confirmed that no one else was at the apartment with him except Kei'Mariona. After they returned home, they had lunch, and then Kei'Mariona watched TV upstairs while he put things away. On one of several trips upstairs, Tyson found that Kei'Mariona had had a bowel movement, so he took her to the bathroom, cleaned her up, and put her in her bed. He went back downstairs, put some things away, watched a movie, and talked to his parents on the phone. At about 5:00 p.m., when he went to wake the child from her nap, she was non-responsive, he could not feel a heartbeat, and he did not think she was breathing. When confronted with the fact that the victim died from blunt force injuries inflicted within 24 hours of her death, Tyson stated, "I will be honest with you. I really don't know what happened."

At trial, Tyson asserted in his defense that if someone hurt Kei'Mariona, it must have been Bradley. Tyson did not testify but called a longtime friend, Becky Roberts, as a witness. Roberts had observed Bradley at a social gathering at Roberts’ lake house to which Bradley brought her own niece, who was in her care. Roberts testified that Bradley teased her niece to the point of tears by repeatedly saying, " ‘I am leaving’ – and this went on five or six times until the child wept and cried and [her] arms were outstretched." After being instructed by the trial court that she could not "testify what someone else says," Roberts testified that Bradley's behavior was "tormenting a child and it was funny to her and it was embarrassing to [Tyson], it was embarrassing to us, and it was frightening to this little child. And it happened one more time, she got in the car and then got back out of the car and did it one more time." The witness then testified that in her opinion this behavior was not consistent with what anyone in the medical field should do. She also observed that Bradley did not correct or discipline her niece and did not take proper care of her while they were boating on the lake, not watching her or holding her, so that the witness had to intervene several times to keep the child from falling overboard.

1. In Tyson's first enumeration of error, he contends that he was denied a fair trial based on juror bias, because the jury foreman worked at Bradley's place of employment and knew her. He asserts that the juror deceitfully concealed his knowledge of Bradley during voir dire and that the juror was biased in favor of Bradley.

Voir dire was not taken down, but the juror testified at the hearing on Tyson's motion for new trial as follows. On voir dire, the juror was asked where he was employed, and responded, "Quiet Oaks Health Care." He was asked if he knew the parties involved, and testified in individual voir dire questioning that he "was aware of Ms. Bradley, that I had worked with her, and I knew her." The juror was asked during voir dire if he had formed any opinion of the guilt of the accused, and he responded that he had not done so. He also was asked in voir dire whether he had any bias or prejudice and responded that he had none. The juror further testified that he and Bradley were not close friends and did not socialize outside of work, and that he had no knowledge of her reputation as a mother.² In its order denying Tyson's motion for new trial, the trial court specifically found that the juror "disclosed his knowledge and work relationship with the victim's mother."

As Tyson acknowledges, in order to obtain a new trial based on juror misconduct in voir dire, he must show that "(1) the juror failed to answer honestly a material question on voir dire and (2) a correct response would have provided a valid basis for a challenge for cause." (Citation and punctuation omitted.) Anderson v. State , 302 Ga. 74, 77 (2), 805 S.E.2d 47 (2017). See also Glover v. State , 274 Ga. 213, 214 (2), 552 S.E.2d 804 (2001).³

Here, Tyson has not shown that the juror in question concealed his relationship with Bradley. While Tyson asserts that the trial court's finding with respect to the juror's disclosure was "conclusory," it was directly supported by the juror's testimony at the hearing on Tyson's motion for new trial. Tyson complains that the trial court gave no reason in its order for discounting his trial counsel's testimony that he would have struck any prospective juror who knew Bradley or was familiar with the nursing home at which she worked. But "[t]he credibility of the witnesses at the motion for new trial hearing was for the trial court to determine." (Citations, punctuation, and footnote omitted.) State v. Thomas , 311 Ga. 407, 415 (3) (a), 858 S.E.2d 52 (2021). And "[i]t is also well established that the trial court's findings of fact on motion for new trial are upheld unless clearly erroneous." (Citations and punctuation omitted.) Strother v. State , 305 Ga. 838, 850 (6), 828 S.E.2d 327 (2019).

Here, the trial court made a specific factual finding, and we cannot say that the trial court clearly erred in crediting the direct and positive testimony of the juror, rather than relying on trial counsel's testimony to reach the indirect and speculative conclusion that, because counsel would have struck any juror who had a relationship with Bradley or with the nursing home, the juror therefore must have deceptively failed to reveal such a relationship.⁴

Because [Tyson] has failed to demonstrate that [the juror] answered questions dishonestly during voir dire, he has failed to meet the requirements of the first prong of the two-pronged test set forth in Glover for determining whether a defendant is entitled to a new trial for juror misconduct — that the juror failed to give honest answers to voir dire questions. The trial court did not err in denying the motion for new trial on this ground.

Anderson , 302 Ga. at 80 (2) (a), 805 S.E.2d 47.

2. In two related enumerations of error, Tyson contends that the failure to take down and transcribe the jury voir dire in its entirety was error and a due process violation. ⁵

But, as we recently held after a review of the applicable law with respect to the takedown and transcription of voir dire, "our precedent holds otherwise for non-death penalty cases like [Tyson's], and he offers no compelling reason to overturn that precedent." Allen v. State , 310 Ga. 411, 419 (6), 851 S.E.2d 541 (2020). Moreover, "if a defendant wants a more complete record of voir dire, he must make a...