McCartney v. State
| Decision Date | 19 March 1992 |
| Docket Number | No. S91A1586,S91A1586 |
| Parties | McCARTNEY v. The STATE. |
| Court | Georgia Supreme Court |
Sandra J. Popson, Brown, Katz, Flatau & Hasty, Macon, for mCcartney.
Robert E. Keller, Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, Todd E. Naugle, Asst. Dist. Atty., Jonesboro, for the State.
Appellant Jeffrey Paul McCartney was convicted of the malice murder of his wife's son, David Maxwell Moss, and cruelty to children to Moss. 1 McCartney appeals, and we reverse.
1. Appellant's first enumeration of error is that the trial court erred by failing to sustain his objections to the opinion testimony of Dr. Joseph Burton, the forensic pathologist who had performed the autopsy on the child. Appellant contends that Dr. Burton was permitted to invade the province of the jury by testifying that abuse was the cause of the child's death. We find merit in this contention.
At trial the following questions by the State and testimony by Dr. Burton, along with objections and colloquy between the court and counsel, were recorded:
The pattern of these bruises is virtually diagnostic of a child with maltreatment syndrome, which is what we medically call this syndrome where we have multiple bruises like this distributed over areas of the body in such a way that it would be very improbable that these bruises would have occurred by accident.
That does not mean that one or more these bruises didn't happen by normal play or by accident to this child, but the probability of these bruises like you see here occurring in multiple accidents is almost unfathomable.
. . . . .
Most of the cases that we see don't have multiple broken bones or multiple bones in different stages of healing. They are much like this child, and the term that I use and many pathologists use is the childhood maltreatment syndrome. It takes into consideration those cases where there is a single instance, an isolated instance of abuse that results in significant injury or death.
It considers those cases where there is emotional or nutritional deprivation that may lead to illness and sometimes to death, and it considers those cases where over a shorter period of time that there may be injuries that are escalating in their severity until the child appears to have died from an injury. This is what I--the term that I use to describe these particular cases.
... [Emphasis supplied.]
Later in the course of his testimony, Dr. Burton was permitted to give the following opinions:
DR. BURTON: It was my opinion that the injuries that I observed in this child, as well as the injuries to the brain and skull fracture that was present, make up the conditions that are required to make the diagnosis of a childhood maltreatment syndrome or the abused child syndrome. It is my opinion that that is the manner by which these injuries occurred that resulted in the death of this child.
. . . . .
DR. BURTON: If you isolate any particular injury in this child and say, "Could it have happened like this or like that," the answer is almost always yes. These cases have to be looked at as a case [sic] with a constellation of injuries and the best possible explanation to explain how these injuries got there is in my opinion that the fatal injuries occurred in the process of what would be called the childhood maltreatment syndrome.
As the above excerpts from the transcript show, during his testimony Dr. Burton testified that in his opinion the "childhood maltreatment syndrome or the abused child syndrome ... is the manner by which these injuries occurred that resulted in the death of this child," and that "in my opinion ... the fatal injuries occurred in the process of what would be called the childhood maltreatment syndrome." This testimony amounts to an opinion that the child died of abuse, and in this regard the testimony is unacceptable because it was not beyond the ability of the jurors themselves to draw the inference.
The leading case on this issue is Allison v. State, 256 Ga. 851, 353 S.E.2d 805 (1987). In Allison, experts for the state testified that the child sexual abuse syndrome had certain characteristics. The experts indicated that the child in that case had symptoms matching the characteristics of the syndrome, and one went even farther, testifying that " '[i]n my professional opinion, she has been sexually abused.' " Id. at 851-52, 353 S.E.2d 805. This Court held that "the opinion of the expert that the child had been abused" was inadmissible because the jury was able to decide on its own "whether the child in fact was abused, and, if so, whether Allison did it." (Emphasis in original). Id. at 853(6), 353 S.E.2d 805. Cf. also Harris v. State, 261 Ga. 386, 405 S.E.2d 482 (1991) ().
In the present case, Dr. Burton's testimony that the childhood maltreatment syndrome or abused child syndrome was the "manner" in which the fatal injuries occurred, and that the fatal injuries occurred "in the process" of the childhood maltreatment syndrome, constituted his opinion that the fatal injuries in fact resulted from child abuse. Accordingly, as the jurors had the ability to reach this conclusion themselves, we hold that the trial court erred by allowing Dr. Burton's testimony.
Moreover, considering the critical...
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