Goulding v. State

Citation780 S.E.2d 1,334 Ga.App. 349
Decision Date10 November 2015
Docket NumberNo. A15A0841.,A15A0841.
Parties GOULDING v. The STATE.
CourtUnited States Court of Appeals (Georgia)

Brian Steel, Atlanta, for Appellant.

Rachelle L. Carnesale, Norcross, Cliff Head, Shannon Glover Wallace, for Appellee.

BARNES, Presiding Judge.

A jury convicted Jonathan Goulding of two counts each of cruelty to children, aggravated assault, and aggravated battery after Goulding's three-month-old baby was diagnosed with injuries consistent with " shaken baby syndrome." Goulding raises five arguments on appeal, contending that: (1) the trial court improperly denied his motion to excuse a juror for cause; (2) the trial court erred in allowing the State to play a "Day in the Life" video of the injured child; (3) a jury instruction constituted an illegal comment on the evidence; (4) Goulding's right to be present during a critical stage of his trial was violated when a seated juror was dismissed; and (5) the trial court erred by denying Goulding's request to charge on accident. For the reasons that follow, we affirm the verdict.

1. We view the evidence on appeal in the light most favorable to the verdict. Smith v. State, 283 Ga. 237(1), 657 S.E.2d 523 (2008). So viewed, the evidence shows that the victim was born three weeks early on January 1, 2008, and remained in the hospital for 19 days due to some breathing and feeding difficulties. The mother returned to work on February 4, 2008, and Goulding cared for the baby until she came home, when he handed the baby to her and returned to playing an online video game called World of Warcraft.

Once when the mother came home for lunch, she found the baby propped up on the living room couch with a bottle while Goulding played World of Warcraft in the bedroom with earphones on. Goulding explained that the baby had been crying and he needed a break.

In mid-February, Goulding reported to the mother that the baby had appeared to have a seizure while he was eating, and they took the baby to the emergency room. The examining doctor diagnosed the problem as reflux and increased the amount of medication being administered to the child before he was fed. On several occasions Goulding called the baby's mother (his wife) or his mother-in-law because the baby would not stop crying. His mother-in-law, who was a paramedic, testified that Goulding called her at work in March 2008 because the baby would not stop crying, and said he had been trying to burp the baby and heard a pop. The mother-in-law went to the apartment and found the baby screaming as if he were in pain, but upon examination she found no external signs of injury. He cried more with every movement, but an hour or two after the baby's mother came home and administered Tylenol

, the baby stopped crying. Goulding told his mother-in-law that the baby cried all the time when the baby's mother was at work, but stopped as soon as she came home. Goulding said that sometimes he got frustrated enough to shake the baby, and his mother-in-law cautioned him and offered to come get the baby any time Goulding became too stressed to deal with him.

Later in March 2008, the baby had some unexplained bruises on his forearm, his calf, on the inside of both arms, and on his chest, which Goulding and the mother called to the pediatrician's attention, fearing some kind of bleeding disorder. The pediatrician ordered blood work, which was normal, but was also concerned about the size of the baby's head, which was growing bigger than expected. Measurements a week later on April 3, 2008, revealed that the baby's head had continued to grow, so the pediatrician referred him to the emergency room for evaluation, and the pediatric emergency room doctor ordered a CAT scan

. The scan revealed an unusually large amount of fluid build-up along with a small amount of blood between the baby's brain and skull, but the baby was alert, awake, not fussy, and had a normal neurological exam with no sign of external injuries. After consulting with a pediatric neurosurgeon, the baby was not admitted to the hospital on April 3, 2008, but was seen by a pediatric neurosurgeon the following day. The baby was "happy and playful" with no outward signs of injury, and the neurosurgeon diagnosed the baby as having a benign hydrocephalus, or increased spinal fluid in the head, which might have caused a vein to tear slightly but had caused no trauma to the brain. The doctor saw no signs of brain injury , but planned to obtain an MRI the following week to determine whether the blood on the baby's brain was caused by repetitive bleeding, and discharged the baby.

Five days later, on April 9, 2008, Goulding came to the emergency room because the baby was not breathing, was unresponsive, and had turned blue. Goulding told the triage nurse that the baby had "clenched up" after being given his medicine and quit breathing, and after the baby did not respond to chest compressions, Goulding put him in the car and brought him to the hospital.

The baby was stabilized and transferred to a nearby Tennessee hospital where a bed was available in the pediatric intensive care unit. A physician who was qualified as an expert in pediatric critical care and abusive head trauma

testified that the baby was initially placed on a ventilator and given IV fluids to stabilize his breathing and circulation. The baby was unconscious and unresponsive, and his pupils did not react to light. The soft spot on his head where his skull had not yet fused was tight, indicating internal pressure. Lab work indicated the baby was anemic from blood loss, and a chest x-ray revealed that the baby had prior rib fractures that had begun to heal. Another CAT scan of the baby's head revealed that the increased volume of fluid was pressing on his brain and causing the sutures where his skull plates came together to pull apart. The fluid was different colors due to both old blood and new blood from an acute injury, and the brain matter itself was swollen from either traumatic injury, lack of oxygen, or both. A neurosurgeon lowered the pressure on the baby's brain by removing fluid with a syringe through the soft spot, and an examination of the fluid confirmed the presence of old and new blood.

An eye exam on April 10, 2008 revealed "literally hundreds" of hemorrhages extending to the edges of the retinas in both eyes. An MRI on April 11, 2008, confirmed old hemorrhages of different ages as well as very recent hemorrhages, and revealed bleeding deep within the brain itself, from parts of the brain that had been torn or sheared. After ruling out a clotting disorder

or other possible causes, and considering the retinal hemorrhages, the healing rib fractures, the acute and old bleeds around the brain, and the bleeding within the brain, the pediatric critical care doctor diagnosed the baby with "abusive head trauma." The doctor further opined that the baby suffered the final, most significant head trauma immediately before the baby stopped breathing on April 9, 2008, rather than experiencing a head trauma days earlier that grew worse over time. Finally, in his opinion, the baby's injuries had been caused by chronic and acute abusive injury, consistent with someone having grasped the baby by the chest and shaken him. The doctor thought the baby had a very poor prognosis and would never care for himself or even sit up, walk, or talk.

Although Goulding has not enumerated this issue as error, we find that the evidence was sufficient to enable a rational jury to find him guilty beyond a reasonable doubt of all the offenses for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Smith, 283 Ga. at 237–238(1), 657 S.E.2d 523. See also former OCGA § 24–4–6 (conviction based on circumstantial evidence authorized where the evidence "exclude[s] every other reasonable hypothesis save that of the guilt of the accused")1 .

2. Goulding contends that the trial court erred in denying his motion to excuse a juror for cause. Jurors are presumed to be impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified. Edenfield v. State, 293 Ga. 370, 384(7)(a), 744 S.E.2d 738 (2013). "Whether a prospective juror should be excused for cause is committed to the discretion of the trial court, and ... the discretion of the trial court in this respect is broad." Sears v. State, 292 Ga. 64, 66(2), 734 S.E.2d 345 (2012).

Here, the trial court asked the following general question of the panel, "Have you any prejudice or bias resting on your mind either for or against the accused Jonathan Michael Goulding?" Juror 9 raised her hand and explained, "I'm afraid if it's a baby I would have a problem with it. Because I have a new grandson and I'm afraid that could affect me." The State followed up, and the following exchange took place:

[STATE]: [Juror 9], the Judge asked you if you had any—if you could sit on this case and be impartial.
[JUROR 9]: I cannot[,] no."
[STATE]: Okay, ... the State will present evidence and your will hear the instructions from the Judge. Is it your thought that you cannot listen to the evidence as—
[JUROR 9]: (Interposing) Not really. No.
[STATE]: And that's based on your personal life experience.
[JUROR 9]: (Nods head affirmatively.)

Defense counsel then questioned the juror as follows:

[DEFENSE COUNSEL]: Again the question before the Court at this particular moment is whether or not ... you have any bias one way or another against Mr. Goulding sitting here right this moment?
[JUROR 9]: Not against him, no.
[DEFENSE COUNSEL]: You think you could listen to the evidence that's presented in this case and decide the case solely upon the evidence you hear in this case, in this courtroom and the law as the Judge presents it to you?
[JUROR 9]: I don't want to say that I could because, like I say, it's a baby.

Goulding then moved to strike Juror 9 for cause, arguing that she had indicated that should could not state she was impartial. The State...

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