Medlock v. State

• Decision Date: 28 June 1993
• Docket Number: No. S93A0053,S93A0053
• Citation: 263 Ga. 246,430 S.E.2d 754
• Parties: MEDLOCK v. The STATE.
• Court: Georgia Supreme Court

Page 754

430 S.E.2d 754

263 Ga. 246

MEDLOCK v. The STATE.

No. S93A0053.

Supreme Court of Georgia.

June 28, 1993.

William J. Mason, Columbus, for Medlock.

Douglas C. Pullen, Dist. Atty., Chattahochee Judicial Circuit, Columbus, Michael J. Bowers, Atty. Gen., Atlanta, Murray J. Weed, Asst. Dist. Atty., Columbus, Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

Peggy R. Katz, Staff Atty., Atlanta.

HUNT, Presiding Justice.

Jason Ronald Medlock was convicted of the felony murder of his infant son and was sentenced to life imprisonment. ¹ Medlock appeals and we affirm in part and remand in part.

1. Considering the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found Medlock guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Medlock contends the trial court erred in overruling his objections to the state's cross-examination of Medlock's character witnesses. We agree.

In cross-examining Medlock's character witnesses, the state asked one of them about two prior disorderly conduct charges and a charge of driving an automobile faster than is safe for conditions. The state asked another about two disorderly conduct charges, a DUI, and a criminal trespass charge. In both instances, Medlock objected to the questions and asked that the state produce certified copies documenting the charges. The district attorney refused to produce anything to show that his questions were asked in good faith and were based upon reliable information, insisting that he had no obligation to do so and that it was Medlock's responsibility to show that there was no merit to the state's questions. The trial court overruled Medlock's objections and informed Medlock that he could rebut when the state had completed its cross-examination.

In Nassar v. State, 253 Ga. 35, 36, 315 S.E.2d 903 (1984), a murder case that did not involve the death penalty, we noted that, where the state had made an offer of proof concerning prior arrests and convictions of the defendant, it was not error for a trial court to permit the state to cross-examine a defendant's character witnesses concerning whether or not they knew about those prior arrests and convictions. Four years later, in State v. Clark, 258 Ga. 464, 369 S.E.2d 900 (1988), a case involving a voluntary manslaughter conviction, we plainly stated:

The purpose of this opinion is to delineate the boundaries that must be observed by district attorneys when cross-examining a defendant's character witness. A district attorney must be able to show that the questions posed to the defendant's character witness were asked in good faith and based on reliable information that can be supported by admissible evidence. [Emphasis supplied.]

Three years later, in Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991), a death penalty case prosecuted by the same district attorney who prosecuted the present case and decided one year prior to the trial of the present case, we cited both State v. Clark, supra, and Nassar v. State, supra, and held:

Where the defendant objects to the district attorney's questions to the defendant's character witnesses about offenses, ... the district attorney is required to demonstrate that his questions were asked in good faith, and based on reliable information that can be supported by admissible evidence. [Emphasis supplied.] Christenson, 261 Ga. at 90 [8(c) ], 402 S.E.2d 41.

We went on in Christenson to indicate that the state can make that showing with certified copies of records of those offenses or by producing witnesses to testify concerning the offenses. Christenson, 261 Ga. at 91, 402 S.E.2d 41.

Here, notwithstanding our clear and unambiguous holding in Christenson, the district attorney did not even attempt to "demonstrate that his questions were asked in good faith, and based on reliable information that [could] be supported by admissible evidence." Christenson, 261 Ga. at 90 [8(c) ], 402 S.E.2d 41. Instead, he maintained that he was not required to make any sort of showing.

The trial court erred when, in response to Medlock's objection, it did not require the state to "demonstrate that [its] questions were asked in good faith, and based on reliable information that can be supported by admissible evidence." Christenson, 261 Ga. at 90 [8(c) ], 402 S.E.2d 41. ² As we did in Christenson, we remand this case to the trial court for a determination of whether the district attorney can support his questions to the defendant's character witnesses as required.

3. Medlock contends the trial court erred in denying his motion in limine to prevent the medical examiner from referring to the victim's death as "homicide." The medical examiner, a pathologist who had performed the autopsy of the victim, gave his opinion that:

The child died as a result of head trauma. That head trauma was the collection of blood on the surface of the brain, both the subdural and the subarachnoid hemorrage [sic]. The mechanism by which that occurs is very clearly to me one of a shaken infant. The manner of death in a case such as that would be homicide.

A witness generally is not permitted to express his or her opinion regarding an ultimate issue in the case because to do so would invade the fact-finding province of the jury; however, we have allowed an exception to this rule with respect to expert witnesses:

Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.] Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981).

Prior to stating his opinion, the medical examiner testified at length about the injuries to the victim's head which he had discovered in his examination of the victim's head and skull. He testified that his findings were consistent with injuries found in shaken infants. This testimony is clearly "beyond the ken of the average layman." Here, the expert's conclusion that the infant's death resulting from shaking could only be homicide merely reiterated and underscored his opinion that death in this case resulted from shaking, rather than by accident or by intentional causes. We note Medlock did not contend that he accidentally shook the baby to death. Rather, his defense was that the baby fell and struck his head on the floor. Under these circumstances, the expert's testimony did not improperly invade the province of the jury. The situation would be different if this expert's testimony had been that death resulted from a blunt force trauma to the head. In that case, his conclusion would have permitted the jury to find the death-causing injury either accidental or intentional, and it would have been impermissible for the expert to state his opinion that homicide was the cause of death. Here, however, the jury could reach no conclusion, based on this expert's testimony, other than that death was homicide, and the expert's testimony did not invade the province of the jury. ³ See also Maxwell v. State, 262 Ga. 73, 76-77(5), 414 S.E.2d 470 (1992) (neither expert's own investigation nor his expertise as a forensic pathologist led to his conclusion that death was a homicide).

While we find no error regarding the expert's testimony in this case, we note that it would be better practice if experts were instructed not to state a conclusion that death resulted from homicide, a conclusion which may often invade the province of the jury.

4. Medlock contends the trial court erred by denying his motion for mistrial. During the cross-examination of Medlock's wife, the state asked:

Between the time he [Medlock] and Sears and Roebuck were no longer affiliated and the time your child was killed, what did ya'll live on?

Medlock objected to use of the language "the child was killed" and moved for a mistrial. In response, the following transpired:

THE STATE: Oh, phooey.

THE COURT: I'm going to deny the mistrial.

DEFENSE COUNSEL: Would you admonish the District Attorney not to refer ...

THE STATE: Your Honor, the testimony is here and the Court's ruled on the motion that there's evidence before this jury that that child was murdered. I can certainly ask that question.

THE COURT: I'm going to allow the question.

THE STATE: Thank you, Your Honor.

DEFENSE COUNSEL: And for the record, we're going to renew our motion, Your Honor.

On appeal Medlock does not raise any error regarding the state's use of the language "the child was killed," but argues the trial court should have granted a mistrial because of the state's reference to the trial court's ruling denying Medlock's motion for a directed verdict. Although Medlock did not ask for a mistrial on this ground, or object to the state's reference to the court's ruling on the motion for directed verdict, we agree that reference was improper. See Washington v. State, 80 Ga.App. 415, 56 S.E.2d 119 (1949). We also note that pursuant to OCGA § 17-8-75, ⁴ it would have been appropriate for the trial court, even without objection, to take some sort of corrective action. Nevertheless, in light of the circumstances--that the district attorney's comment came in response to a defense objection, and that the district attorney did not refer to a "directed verdict of not guilty" (compare Washington v. State, supra) ⁵--we find no reversible error.

5. We find no merit to the defendant's remaining enumerations.

Judgment affirmed in part and remanded in part.

All the Justices concur, except BENHAM and FLETCHER, JJ., who dissent.

FLETCHER, Justice, dissenting.

For the reasons set forth below, I respectfully dissent to Divisions 2, 3, and 4 of the majority's opinion.

1. While I agree with Division 2 of the majority's opinion that the trial court erred in overruling Medlock's objections...