Davis v. State

Citation299 Ga. 180,787 S.E.2d 221
Decision Date06 June 2016
Docket NumberS16A0103
PartiesDavis v. The State.
CourtSupreme Court of Georgia

Jack Morris Downie, Brandi Dukes Payne, for Appellant.

Samuel H. Altman, District Attorney, John Alexander Fitzner, III, Mary Kathryn McKinnon, Assistant District Attorneys, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Matthew Min–soo Youn, Assistant Attorney General, for Appellee.

NAHMIAS

, Justice.

Appellant Sean Ohifemi Davis challenges his convictions for felony murder and first-degree child cruelty in connection with the death of his girlfriend's 13–month–old daughter, Nila Faye Flagler. As explained below, we reject Appellant's contention that his trial counsel provided ineffective assistance, and we affirm his conviction and sentence for felony murder. However, the trial court should have merged the child cruelty count into the felony murder conviction for sentencing purposes, so we vacate Appellant's conviction and sentence for child cruelty.1

1. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On April 27, 2009, Appellant came to Morrisha McLain's apartment in Vidalia, Georgia around 9:30 p.m. Appellant and McLain had been dating for a month or so, and he often cared for her children—Nila and her three-year-old brother Amari—while McLain worked the night shift at a nearby convenience store. Around 11:40 p.m., McLain left for work, and Appellant stayed with the children; Nila appeared healthy when McLain left. At about 7:40 a.m. the next morning, Appellant called McLain and told her that Nila was barely breathing and looked like she was having a seizure. McLain left work, calling 911 as she rushed home. When she arrived, she found Nila lying propped up on pillows on her bed; she was not breathing, and McLain started CPR. Moments later, an ambulance arrived, and Nila was taken to a nearby hospital, but she remained unconscious and required assistance to breathe. The child was flown to a hospital in Savannah, where she died the following day.

The medical examiner who performed Nila's autopsy testified at trial that the child had 26 external injuries on her head

and face, including hair loss, abrasions, bruises, and healing lesions; several other external bruises and abrasions on her back and legs; and several internal injuries, including a skull fracture, subgaleal and subdural hemorrhages, brain swelling, and ruptured blood vessels. The injuries to Nila's skull and brain caused her death.

Three of the doctors who treated Nila in Savannah testified that the injuries that led to her death resulted from a recent impact or back-and-forth movement and not from earlier accidental falls as Appellant's counsel suggested on cross-examination. Dr. John Devaro, a pediatric ophthalmologist, testified that Nila had hemorrhaging in her eyes and detached retinas

from a large acceleration-deceleration injury, which indicated a direct hit from something or back-and-forth movement of the head that did not result from a fall off furniture. Dr. Deborah Conway, the director of pediatric imaging, testified that Nila's injuries resulted from a combination of blunt force to the head and shaking and not from falling off furniture, that Nila and her brother could not have caused her injuries, and that her injuries had occurred within a day of her arrival at the hospital. Dr. Donna Evans, a pediatrician and medical director of the hospital's child protection team, testified that Nila's injuries resulted from acceleration-deceleration impact trauma and could not have resulted from an accidental fall off furniture, and that Nila's symptoms would have been immediately apparent to her caretaker.

Appellant testified that he did not strike, shake, or otherwise hurt Nila, claiming not to know how she was injured. Defense counsel elicited testimony from Appellant and McLain that a few days before Nila stopped breathing, she fell off her bed and got wedged between the bed and the wall with her head resting on the floor; she was in that position long enough to cause a clump of her hair to fall out when Appellant found her. On another occasion, Appellant and McLain were lying in bed together when Nila started to climb onto the bed but fell off, striking her head on the floor, although she got up laughing. Appellant also presented expert testimony from a pediatric forensic pathologist, Dr. Janice Ophoven, who asserted that prior accidental falls could have resulted in Nila's injuries and death. In rebuttal, the State called forensic pathologist Dr. Jamie Downs, who testified that Nila's injuries occurred less than a day before her death based upon their severity and lack of healing and could not have resulted from an earlier fall.

(b) Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder and first-degree child cruelty. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

. See also Vega v. State , 285 Ga. 32, 33, (673 S.E.2d 223) (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)). The trial court therefore properly entered a conviction and imposed a sentence on the felony murder charge. The court erred, however, in entering a judgment of conviction on the child cruelty count, because that charge was the predicate for Appellant's felony murder conviction. See Nazario v. State , 293 Ga. 480, 486, 746 S.E.2d 109 (2013) ; Higuera–Hernandez v. State , 289 Ga. 553, 554, 714 S.E.2d 236 (2011). Accordingly, we vacate Appellant's conviction and sentence for child cruelty.

2. Appellant contends that he received ineffective assistance of trial counsel in three respects. To establish that his trial counsel was constitutionally ineffective, Appellant must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. To show that his lawyer's performance was deficient, Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687–690, 104 S.Ct. 2052

. This is no easy showing, as the law recognizes a “strong presumption” that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. Id. at 689, 104 S.Ct. 2052. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance , 293 Ga. 189, 192, 744 S.E.2d 706 (2013). In particular, “decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Reed v. State , 294 Ga. 877, 882, 757 S.E.2d 84 (2014).

Even when a defendant has proved that his counsel's performance was deficient in this constitutional sense, he also must prove prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694, 104 S.Ct. 2052

. “It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.” Harrington v. Richter , 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citation and punctuation omitted). Rather, Appellant must demonstrate a “reasonable probability” of a different result, which, the United States Supreme Court has explained, is “a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

The reviewing court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. 2052

. In all, the burden of proving a denial of effective assistance of counsel is a heavy one, see Wells v. State , 295 Ga. 161, 164, 758 S.E.2d 598 (2014), and Appellant has failed to carry that burden.

(a) Appellant first claims that his trial counsel was deficient in failing to properly invoke the so-called “rule of sequestration” in regard to Appellant's expert witness, Dr. Janice Ophoven, and the State's rebuttal expert, Dr. Jamie Downs.

(1) Due to a busy practice and poor health, Dr. Ophoven was unable to travel from her home in Canada to give live testimony at Appellant's trial. By agreement of the parties, her testimony was video recorded on the first day of trial after the jury had been excused for the day; the recording was then played for the jury on the third day of trial. Dr. Ophoven testified that accidental falls between two and four feet could result in fatal injuries to a child that might not become apparent until days later, asserting that the scientific literature supported her position. She also testified that there is no scientific basis for the theory that the combination of retinal hemorrhaging, subdural hematoma

, and brain damage necessarily shows that the child was violently shaken.

At some point before Dr. Ophoven's testimony was played for the jury, the prosecution gave a copy of the recording to Dr. Downs, who testified in rebuttal right after the jury watched Dr. Ophoven's testimony. The rule of sequestration had not been invoked by either party or by the court up to that point in the trial, although with the exception of Dr. Downs, the parties had honored the rule. After Dr. Downs was...

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