McNeal v. State

• Decision Date: 04 October 1993
• Docket Number: No. S93A1282,S93A1282
• Citation: McNeal v. State, 263 Ga. 397, 435 S.E.2d 47 (Ga. 1993)
• Parties: McNEAL v. The STATE
• Court: Georgia Supreme Court

Page 47

435 S.E.2d 47

263 Ga. 397

McNEAL v. The STATE

No. S93A1282.

Supreme Court of Georgia.

Oct. 4, 1993.

Hugh J. McCullough, Cowart & McCullough, Glennville, for McNeal.

Dupont K. Cheney, Dist. Atty., Hinesville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta, for state.

BENHAM, Justice.

Appellant was convicted of the felony murder of the two-year-old son of his girlfriend. The felony underlying the conviction was cruelty to children. OCGA § 16-5-70. ¹

1. The State presented evidence that shortly after the child was left in the care of appellant, appellant arrived at the home of the maternal grandmother seeking help to revive the unconscious child. Efforts to revive the child were unsuccessful and he died the following day, shortly after being removed from life support systems. In a statement to the investigating officer six days after the incident, appellant admitted shaking the child "real hard, back and forth, till he went limp." The forensic pathologist who performed an autopsy on the victim testified that the child's skull was not fractured but the brain was severely swollen and the classic signs of severe shaking were present: internal bruising on the interior portion of the scalp at the back of the head and hemorrhages along the length of the spinal cord and in the retinae of the eyes. The evidence was sufficient to authorize the jury to conclude that appellant was guilty beyond a reasonable doubt of felony murder in the death of the child. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The trial court instructed the jury on the law of malice murder and felony murder, the offenses for which appellant was indicted, and the included offense of involuntary manslaughter. ² Citing Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), appellant contends the trial court gave an improper sequential charge. ³

Even if we were to assume that the charge complained of was a sequential charge, ⁴ our decision in Edge does not make invalid the giving of such a charge in this case since this case involves involuntary rather than voluntary manslaughter. The sequential charge in Edge eliminated the jury's full consideration of voluntary manslaughter and its concomitant mitigating factor of provoked passion. See OCGA § 16-5-2(a). Involuntary manslaughter does not contain an element that mitigates a greater offense. See OCGA § 16-5-3(a). The absence of a mitigating factor makes our holding in Edge inapplicable.

3. Appellant maintains error was committed when the trial court refused to grant appellant sufficient funds to hire the forensic pathologist of his choice to review the victim's medical records. When it was informed that it would cost $2500 to retain the pathologist appellant desired, the trial court authorized appellant to spend $1200, with which he hired another pathologist.

The Fourteenth Amendment's due process guarantee of fundamental fairness requires that an indigent defendant be given "meaningful access to justice," e.g., access to a competent expert necessary to an effective defense, but an indigent defendant does not have a constitutional right to the expert he prefers. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). Determination of the method of implementation of this right has been left to the states. Id. In Georgia, the grant or denial of a motion for the assistance of an expert witness lies within the sound discretion of the trial court (Dampier v. State, 245 Ga. 427(4), 265 S.E.2d 565 (1980)), and a defendant's preference and the cost to the public of that preference are factors to be considered in the exercise of that discretion. Thornton v. State, 255 Ga. 434, fn. 2, 339 S.E.2d 240 (1986).

In the case at bar, appellant does not argue that the allocated funds were not sufficient to employ an expert, or that the assistance of the expert employed was deficient due to insufficient funds. Instead, he argues that the trial court expressed bias against the expert of choice. We have reviewed the trial transcript and conclude that the trial court did not abuse its discretion when it refused to authorize funds sufficient for appellant to hire the expert he desired.

4. Appellant asserts error in the trial court's purported failure to conduct an in camera inspection of the State's file despite the request of counsel for appellant. See Tribble v. State, 248 Ga. 274, 280 S.E.2d 352 (1981). In Tribble, at 275, 280 S.E.2d 352 this court held that a trial court is required to conduct an in camera inspection of the State's file upon the request of a defendant dissatisfied with the State's response to the defendant's request for exculpatory material "as a means of accommodating the interest of the state in the effective prosecution of criminal cases and the interest of the accused in the preparation of his defense." However, the trial court's failure or refusal to conduct the review is not reversible error, as the error may be cured by post-trial examination of the State's file. Id., supra, at 276, 280 S.E.2d 352. See also Carpenter v. State, 252 Ga. 79(2), 310 S.E.2d 912 (1984); Hill v. State, 250 Ga. 164(2), 295 S.E.2d 838 (1982).

In the case at bar, appellant requested, and the trial court agreed to conduct, an in camera review of the State's file. However, there is nothing in the record that reflects the trial court completed the task. In the absence of evidence that the trial court reviewed the State's file, we remand the case to the trial court for a post-trial examination of the file or, if a review has occurred, entry on the record of the result of that inspection. See Carpenter, supra; Hill, supra; and Tribble, supra, Div. 3. ⁵ Appellant may file a notice of appeal from the trial court's ruling on remand.

Judgment affirmed in part and remanded with direction in...