Johnson v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0338. JOHNSON v. THE STATE.
PINSON, Justice.
Reginald Demarcus Johnson was convicted of felony murder
and first-degree cruelty to children in connection with the death of
his six-month-old daughter, Jordan. 1 On appeal, Johnson contends
1The crimes occurred in April 2016. Johnson was indicted by a DeKalb
County grand jury in May 2016 on one count each of malice murder, felony
murder, and cruelty to children in the first degree. After a jury trial held in
August 2016, Johnson was acquitted of the malice-murder charge but found
guilty of felony murder and first-degree child cruelty. Johnson was sentenced
to serve life in prison for felony murder; the child-cruelty count was merged
into the felony murder count for sentencing purposes. Prior to his sentencing,
Johnson filed a premature motion for new trial on October 3, 2016, which
ripened upon the entry of the final disposition on October 5, 2016. See Southall
v. State, 300 Ga. 462, 464-467 (1) (796 SE2d 261) (2017). Johnson amended his
motion for new trial through new counsel in August and December of 2020 and
January of 2021. The trial court held a hearing on the motion for new trial in
September 2021. Johnson filed a premature notice of appeal on November 29,
2021, which he withdrew on January 4, 2022. The trial court denied the motion
for new trial on August 15, 2022, and Johnson filed a timely notice of appeal
on August 30, 2022. The appeal was docketed to the term of this Court
beginning in December 2022 and was thereafter submitted for a decision on
the briefs.
that (1) the evidence was insufficient to support his convictions; (2)
the verdict was contrary to the law and evidence and strongly
against the weight of the evidence; (3) the trial court erred by
admitting certain photographs taken before and during the autopsy;
(4) the trial court erred by limiting the defense’s cross-examination
of Jordan’s mother; (5) the trial court erred by allowing certain
testimony by the medical examiner; (6) the trial court erred by
excluding testimony about the defense’s unsuccessful effort to
procure a witness; and (7) the trial court committed plain error by
failing to give a jury instruction on accident.
Each of these claims fails. When viewed in the light most
favorable to the verdicts, the evidence at trial showed that Jordan
died from blunt force trauma to the head that was intentionally
inflicted within the twelve-hour period when she was in Johnson’s
sole care and that the evidence was sufficient to sustain the
convictions as a matter of constitutional due process. And the jury
was authorized to find that the evidence, although circumstantial,
excluded every reasonable hypothesis other than that of Johnson’s
2
guilt, so the evidence was also sufficient as a matter of Georgia
statutory law. The trial court’s refusal to grant a new trial on the
“general grounds” is not subject to this Court’s review, so that claim
fails. The autopsy photographs, used by the medical examiner to
help explain his conclusions about Jordan’s injuries, were probative
as to both the timing and the manner of injury, and the trial court
did not abuse its discretion in concluding that the danger of unfair
prejudice from their admission did not substantially outweigh their
probative value. And even if the single “pre-autopsy” photograph
should not have been admitted, it is highly probable that this
photograph—which was far less graphic than the properly admitted
autopsy photographs—did not contribute to the verdicts. Finally,
the trial court did not abuse its discretion in prohibiting the defense
from cross-examining Jordan’s mother on a topic not relevant to
Johnson’s guilt or innocence; did not plainly err in allowing certain
testimony by the medical examiner on a subject which his
experience qualified him to speak on; did not abuse its discretion in
refusing to allow testimony about the defense’s effort to procure a
3
witness, when it had failed to avail itself of the statutory material
witness subpoena procedure; and did not plainly err in failing to give
a jury instruction on accident because this theory was at odds with
not only Johnson’s primary defense but also the overwhelming
weight of the evidence. We therefore affirm Johnson’s convictions
and sentence.
1. The evidence at trial showed as follows.2
(a) At 6:40 a.m. on April 4, 2016, emergency responders were
dispatched to a DeKalb County home after Johnson made a 911 call
to report that his six-month-old daughter, Jordan, was
unresponsive. One of the paramedics who responded testified that
she could tell Jordan had suffered a brain injury, based on her
unequally dilated pupils and the swelling and bruising on her right
temple. She said that Johnson at the time seemed a little nervous
2Our resolution of two of Johnson’s claims requires an assessment of the
harm of presumed or actual trial errors. To undertake that assessment, we
must “review the record de novo, and we weigh the evidence as we would expect
reasonable jurors to have done.” Moore v. State, 315 Ga. 263, 264 (1) n.2 (882
SE2d 227) (2022) (citation and punctuation omitted). In light of that standard
of review, we recount the evidence here through that lens rather than
recounting it in the light most favorable to the jury’s verdict.
4
but not distraught. She also said that Johnson told her that Jordan’s
twin brother sometimes “head-butted” her, but she did not believe
Jordan’s injuries could have happened that way.
Another of the emergency responders testified that Johnson’s
demeanor “wasn’t like a frantic parent would be.” That witness
testified that Johnson told her that he woke up in the night and saw
Jordan’s twin “laying on top of her suffocating her.” When she told
Johnson his story was “not adding up” and that Jordan could not
have sustained her injuries that way, Johnson suggested that
“maybe it was when [she] rolled off the bed.” He denied dropping her
by accident or hitting her, then “got quiet” and suggested that
“maybe the other child did it.”
The pediatric emergency physician who treated Jordan at the
hospital testified that Jordan’s CT scan showed fractures on both
sides of her skull and bleeding in the brain. Those injuries, he
opined, could not have been caused by another six-month-old in the
ways Johnson suggested and would have had to have resulted from
“major trauma” such as a car accident without seatbelts, getting hit
5
or kicked with great force, or falling from a “great height.” In
addition, the effects of the head trauma would have been noticeable
within minutes to an hour of the trauma, such that Jordan would
not have engaged in normal movement or made normal noises.
A hospital social worker who spoke with Johnson testified that
Jordan’s injuries were “completely inconsistent” with Johnson’s
story and that, based on the severity of the injury and the absence
of any obvious explanation for it, she suspected child abuse and
determined that law enforcement needed to be contacted.
(b) Jordan’s mother, Ciara Cole, testified about the chronology
of events on April 3 and 4. At the time, she and the twins were living
at her mother’s home, and Johnson, who had lived with them at one
time, was living with his aunt, Sallie White. On April 3, Cole and
the twins were at her mother’s home until about 2:30 p.m., when she
left for a short time to pick Johnson up from work. When they
returned, they were arguing. While she took a shower, Johnson took
the twins, left the house, and walked to a nearby restaurant. She
tracked them down and drove there, and they all left together to go
6
to Johnson’s grandmother’s house. Johnson’s father, who was at the
house, took Jordan in the house for about five minutes; at that time,
Jordan seemed “normal.” After a short time, Cole took Johnson and
the twins to White’s home, where they were to stay that night. She
dropped them off, went back to her mother’s home, and later went
out with friends. Throughout the night and into the morning, Cole
exchanged texts with Johnson, checking on the twins. Johnson never
indicated there was anything unusual, until he called early on the
morning of April 4 to tell her Jordan was unresponsive. Ultimately,
on April 7, once the extent of Jordan’s injuries was known, the
decision was made to take her off life support.
Cole testified that she had suffered from depression after the
twins were born. She also admitted that, after Jordan died, she
began using cocaine and had been arrested for cocaine possession
and theft by shoplifting, and that such charges were still pending at
the time of trial. Cole said she had been offered no deal in exchange
for her testimony here. In addition, Cole admitted that her other
children “live with other people right now,” although she visits with
7
them.
Cole’s mother, Robbie Johnson, testified that on April 3, Cole
and the twins were at her home until the mid-afternoon; that she
had awakened around lunchtime that day and nothing was unusual;
that Cole and Johnson were arguing after Cole picked him up from
work; and that Jordan was fine. She also testified that after Jordan’s
death, Cole had a “nervous breakdown” and started using cocaine.
(c) Dr. Stephen Messner, the chair of the hospital’s child abuse
pediatrics department, and Peggy Woodard, a social worker with the
Department of Family and Children Services (DFCS) who was called
in to assess Jordan’s case, both testified about the hospital’s
investigation. Woodard, together with a hospital fellow working
under Dr. Messner’s supervision, interviewed Johnson at the
hospital. Johnson told Woodard he did not know what had caused
Jordan’s injury, but guessed that her twin brother had kicked her.
He said that Jordan had been acting normally on April 3 but that
she had not taken much of her bottle. He said he was alone with the
twins from around 6:30 until around 9:30 that evening, when his
8
aunt got home. His aunt saw the twins and all was fine. Johnson
said that the twins slept with him in a queen-sized bed and that they
went to sleep around 10:00 p.m. A few hours later, Jordan awoke,
crying, and he noticed her brother was kicking her. He shifted his
son and calmed Jordan, and they went back to sleep. Johnson woke
up again around 5:00 a.m. and noticed that his son was situated with
his “torso laying on [Jordan].” He moved his son and picked up
Jordan, who he realized was unresponsive. So he “shook her lightly”
and tried to rouse her with some water; when that didn’t work, he
went to his aunt, who told him to call 911. Woodard described
Johnson’s demeanor as “calm,” “cooperative,” and “relaxed,” in
contrast to Cole, who was “visibly upset.” Johnson said that April 3
was the second time he had had the twins with him overnight by
himself. Although Johnson would later claim he accidentally hit
Jordan’s head against the bed’s headboard before they all went to
sleep that night, Johnson made no mention of this in his interview
with Woodard.
Dr. Messner, who was qualified as an expert in child abuse
9
pediatrics, testified that Jordan’s CT scans showed fractures on the
back and both sides of her skull. Based on their length, and the fact
that they were “depressed” and exhibited “branching,” Dr. Messner
opined that they must have been caused by “significant force.”
Subdural hemorrhages were indicative of trauma characterized by
rapid twisting or rotating. These injuries, he opined, could not have
been caused by a fall. And nothing that was reported in Jordan’s
history—getting kicked or rolled on by her brother, light shaking, or
a minor bump against a headboard—could have caused the injuries.
He opined that Jordan would have shown signs of distress
immediately or within moments of sustaining her injuries. In his
opinion, her injuries were consistent with physical abuse.
(d) In an interview at the hospital with a DeKalb County police
detective, Johnson maintained that he did not know what had
happened and that Jordan had been fine the night before, other than
refusing to take her bottle. And again he mentioned that Jordan’s
brother was lying on his sister’s head at one point and suggested
that perhaps he had kicked or head-butted her during the night. He
10
did not mention anything about accidentally hitting Jordan’s head
against the headboard.
The lead detective in the case, Gregory Moore, testified that,
after Jordan’s death, he tried to contact Johnson on April 7 and 8
but could not reach him, and Johnson failed to return the calls. After
another unsuccessful try on April 9, Detective Moore obtained an
arrest warrant. Johnson was ultimately arrested on April 10 when
he appeared in court in an unrelated DFCS proceeding—at which he
appeared only after initially failing to show up and being called in
by a DFCS case-worker.
Following Johnson’s arrest, Detective Moore interviewed
Johnson, an audio recording of which was played for the jury.
Johnson continued to insist that he had done nothing to hurt Jordan,
that he “wasn’t rough with” the twins, that Jordan was “fine,” and
that he did not know what had happened to her. He denied he had
ever “put hands on” his kids or any of his romantic partners. He said
he “wasn’t even angry that night.” And he said no accident had
happened. He then suggested that “maybe [he] fell asleep and rolled
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over on her.” After a break in the interview, Johnson began with, “I
didn’t think this was an issue because she didn’t cry, but . . .” He
went on to explain that at one point in the evening before they went
to sleep, he was on the bed with Jordan on his chest when he noticed
that her brother had spit up, causing him to react by jumping up
and accidentally hitting Jordan’s head against the headboard. He
said she did not cry, so he laid her on the bed so he could clean up
his son. He said he “really forgot” that this had happened, and that
“that’s the only thing that happened.” Detective Moore said Johnson
showed little emotion during the interview. Johnson also gave a
written statement that tracked what he said in the interview,
including the part about the headboard.
(e) The medical examiner who performed Jordan’s autopsy, Dr.
Gerald Thomas Gowitt, testified that Jordan had significant head
trauma but few external injuries, which was not unusual in a case
of child abuse. Examination of Jordan’s head revealed substantial
hemorrhaging and bruising and multiple skull fractures, including
a 10-inch fracture running from one side to the other and additional
12
fractures on each side with “tributaries” branching off. The fracture
patterns indicated multiple impacts of “considerable force” and were
not characteristic of a simple fall; the only possible accidental cause
of such injuries would be a car crash or a fall from a great height.
There was no evidence that any of these injuries had begun to heal.
In addition to the brain injuries, there was retinal hemorrhaging in
both eyes, the characteristics of which were “highly suggestive of
acceleration and deceleration of the head at high speed.”
Dr. Gowitt also testified that once a fatal head injury is
inflicted, the symptoms appear almost immediately and are obvious,
even to a layperson. So too, he said, for the retinal hemorrhaging;
after an injury of that type, a child likely would be unconscious and
would not be smiling, cooing, or otherwise responding. Because of
the lack of external injuries, Dr. Gowitt opined that it was likely that
Jordan had been slammed into something hard, smooth, and broad,
and that an adult male would be capable of creating enough force to
cause those injuries. According to Dr. Gowitt, six-month-olds have
the same sensory nerves as adults, so they have the same ability to
13
feel pain.
Dr. Gowitt concluded that the cause of death was
craniocerebral trauma and the manner of death was homicide.
(f) Johnson’s counsel cross-examined the State’s medical
experts about the concept of a “lucid interval,” which can occur after
a person has suffered head trauma. As these experts testified, head
trauma victims typically experience confusion, loss of consciousness,
or other symptoms immediately after sustaining the injury, but that
initial period is sometimes followed by a “lucid interval” during
which the victim appears “asymptomatic,” before symptoms
reappear. The emergency physician, while agreeing on cross that he
could not “rule . . . out medically” the theory that Jordan had
experienced a lucid interval, testified on redirect that “you don’t
suffer this degree of trauma . . . and then have a lucid period.” Dr.
Messner testified that the “vast majority” of lucid intervals occur
when the patient is experiencing epidural bleeding rather than—as
14
Jordan experienced—subdural bleeding. 3 And Dr. Gowitt opined
that Jordan’s injuries were not those with which he might expect to
see a lucid interval.
Johnson’s counsel also unsuccessfully sought, in cross-
examining Cole and Cole’s mother, to elicit that Cole’s sister and
brother had been present during the day on April 3 when she and
the twins had been at her mother’s home. Johnson’s counsel did,
however, elicit from Woodard that her notes indicated Cole had told
her that her brother and sister had been playing with Jordan at
their mother’s home on April 3.
(g) After the State rested, the defense called its own expert
forensic pathologist, Dr. Janice Ophoven, who concluded that
Jordan had died from blunt force trauma to the head, “consistent
with a single impact,” and opined that Jordan could have
experienced one or more lucid intervals during which her body was
3 Dr. Gowitt explained that between the inside of the skull and the
outside surface of the brain there are two “spaces”: the “epidural” space and
the “subdural” space, which lies between the epidural space and the brain
itself.
15
“compensating” after sustaining the initial injury. She described the
skull fracture as an “eggshell fracture,” “characteristic of babies of
less than a year because of their deformable skull,” and opined that
the injury had been inflicted sometime within the 24-hour period
before she became unresponsive, the complications from which had,
“over time,” led to brain swelling and death. Dr. Ophoven opined
that the retinal hemorrhages could have been caused by medical
intervention and thus were not necessarily indicative of any
particular mode of injury. She also opined that the fact that Jordan’s
twin was found lying on top of her could have affected her injury,
and that Jordan’s mother’s depression and substance abuse were
“red flags.”
Johnson himself testified, maintaining that he had done
nothing to cause his daughter’s death or any pain and described
himself as having a loving, kind, and peaceful nature. He said he
had concerns about Cole’s depression and had on a prior occasion
reported those concerns to a DFCS worker in connection with a
hospital visit for Jordan’s twin brother. He recounted Cole’s
16
chronology of April 3 from the time Cole picked him up until she
dropped him and the twins off at his aunt’s home. He said that, after
arriving at his aunt’s, he played with the twins, watched TV with
them, gave them their bottles—although Jordan did not take hers—
and then put them to bed. He said Jordan seemed fine that afternoon
and evening, aside from refusing her bottle and having a runny nose.
He recounted the headboard incident, waking up in the night to find
Jordan’s brother kicking her, and later waking up to find him lying
on top of her, with Jordan unresponsive.
When asked why he had failed to mention the headboard
incident until his interview with the detectives, Johnson replied that
he “honestly just forgot about it.” And when asked about the calls
from Detective Moore he never returned, he explained that he
“didn’t pay attention” to his phone during that time because he was
“grieving,” and said he had already given a statement to the
detective at the hospital. As to why he had not initially appeared at
the DFCS proceeding on April 10, he said his family had told him he
did not need to be there.
17
Johnson admitted that he had been convicted of domestic
violence in Tennessee in connection with a fight with his ex-wife’s
cousin, which left the cousin bloodied and momentarily unconscious.
He admitted on cross-examination that he told police at the time
that he had “snapped.” Johnson also admitted that, on one occasion,
an argument with Cole had become “physical” and he had given her
a black eye. In addition, he admitted that he had been previously
convicted of obstruction and giving a false name and that in this case
he had violated the condition of his bond that required him not to
contact any witnesses.
The defense also presented Johnson’s aunt, Sallie White, who
testified that she did not notice anything amiss with Jordan on the
evening of April 3 and did not hear any commotion or unusual noises
during that night. Johnson’s father also testified, noting that on the
afternoon of April 3 he noticed that Jordan was “not responding” to
him but figured she was just sleepy. Various character witnesses,
including family, friends, and Johnson’s ex-wife, also testified,
describing Johnson as loving, kind, and a good father.
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2. Johnson contends that the evidence was insufficient, both
as a matter of constitutional due process and as a matter of Georgia
statutory law, to support his convictions.
(a) When assessing a challenge to the sufficiency of the
evidence as a matter of constitutional due process, the evidence
presented at trial is viewed in the light most favorable to the verdicts
to determine whether any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt of all the crimes of
which he was convicted. See Jones v. State, 304 Ga. 594, 598 (2) (820
SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979)). In making this
determination, we do not evaluate witness credibility, resolve
inconsistencies in the evidence, or assess the weight of the evidence;
these tasks are left to the sole discretion of the jury. See Walker v.
State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014). The jury’s verdicts
will be upheld as long as some competent evidence, even if
contradicted, supports each fact necessary to make out the State’s
case. See Jones, 304 Ga. at 598 (2).
19
Here, the evidence viewed most favorably to the verdicts
showed that Jordan suffered non-accidental blunt force injuries
during a time when Johnson was the only person present and
capable of inflicting such injuries. The jury was authorized to not
believe Johnson’s story, and to credit the medical experts’ testimony
that Jordan’s injuries would have been apparent within a short time
after their infliction, and that the theory that Jordan had
experienced a “lucid interval” during the afternoon of April 3 was
unsound. And the jury was authorized to find that Jordan had
experienced cruel and excessive pain from the injuries she
sustained. See Moore v. State, 283 Ga. 151, 153 (1) (656 SE2d 796)
(2008) (noting that “evidence of a child’s age, the extent of injuries,
the nature of the assault to which the child was subjected, and the
force with which the child was struck is sufficient evidence from
which the jury can conclude whether the defendant caused the child
cruel or excessive physical pain”). Therefore, the evidence was
sufficient as a matter of constitutional due process to support
Johnson’s convictions for felony murder and cruelty to children in
20
the first degree. See id. (affirming convictions for felony murder and
first-degree cruelty to children).
(b) A conviction on circumstantial evidence is authorized if the
proved facts “exclude every other reasonable hypothesis save that of
the guilt of the accused.” OCGA § 24-14-6. “Not every hypothesis is
a ‘reasonable’ one, and the evidence need not exclude every
conceivable inference or hypothesis, only the reasonable ones.”
Willis v. State, 315 Ga. 19, 23-24 (2) (880 SE2d 158) (2022) (citation
and punctuation omitted). Whether an alternative hypothesis is
reasonable and whether the evidence excludes any such hypotheses
are questions for the jury, whose findings on those questions must
stand unless they are “insupportable as a matter of law.” Id. at 24
(2).
Here, the evidence authorized the jury to reject as
unreasonable the alternative hypothesis that someone other than
Johnson—i.e., Cole or Cole’s mother, sister, or brother—caused
Jordan’s fatal injuries at some point before Johnson assumed her
care. There was no evidence that Jordan was exhibiting any signs of
21
trauma or distress until Johnson called 911, and three medical
experts opined that Jordan’s symptoms would have begun to
manifest immediately or shortly after the trauma—and that a lucid
interval was improbable given the nature of her injuries. Johnson
contends that the evidence shows Jordan’s injuries could just as
likely have been the result of an accident as opposed to an
intentional act, but the jury was well within its authority to reject
that theory as unreasonable. We thus have no basis for disturbing
the jury’s findings. See Willis, 315 Ga. 25 (2).
3. Johnson next contends that the verdict and judgment are
“decidedly and strongly against the weight of the evidence.”
“Even when the evidence is legally sufficient to sustain a
conviction, a trial judge may grant a new trial if the verdict of the
jury is ‘contrary to . . . the principles of justice and equity,’ OCGA §
5-5-20, or if the verdict is ‘decidedly and strongly against the weight
of the evidence.’ OCGA § 5-5-21.” Drennon v. State, 314 Ga. 854, 860
(2) (880 SE2d 139) (2022) (citation and punctuation omitted). When
these so-called “general grounds” are properly raised in a timely
22
motion for new trial, the trial judge must “exercise a broad discretion
to sit as a ‘thirteenth juror.’” Id. (citation and punctuation omitted).
This role requires the judge to consider matters typically reserved
to the jury, including conflicts in the evidence, witness credibility,
and the weight of the evidence. See id.As is plain from the order denying Johnson’s motion for new
trial, the trial court performed its role as the thirteenth juror. In its
order, the court noted that, after considering “[the] conflicts in the
evidence, the credibility of witnesses, and the weight of the
evidence,” “[t]he Court, in an exercise of discretion finds that the
verdict was neither ‘contrary to evidence and the principles of justice
and equity’ . . . nor ‘decidedly and strongly against the weight of the
evidence[.]’” The trial court’s decision in this regard is not subject to
our review—this Court “does not sit as an arbiter of the general
grounds, which are solely within the discretion of the trial court.”
Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023) (citation
23
and punctuation omitted).4 So this claim fails.
4. Johnson contends that the trial court erred by admitting into
evidence certain photographs from before and during Jordan’s
autopsy. Before trial, Johnson moved to exclude the photographs,
arguing that they were not relevant and were gruesome and unduly
prejudicial under OCGA § 24-4-403. The trial court disagreed and
admitted the photographs, over Johnson’s objection, when they were
tendered at trial.
(a) Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” OCGA § 24-4-401. Relevant evidence is generally
admissible, see OCGA § 24-4-402, but such evidence “may be
excluded if its probative value is substantially outweighed by the
4Because we have already rejected Johnson’s claim that the evidence
was insufficient as a matter of constitutional due process under Jackson v.
Virginia, we need not consider whether it would be proper to analyze Johnson’s
general-grounds claim by reference to the Jackson constitutional sufficiency
standard. See King v. State, No. S23A0214, slip op. at * __ (2) n.8 (decided June
21, 2023) (noting this Court’s past practice of analyzing general-grounds claims
by performing or referencing a sufficiency-of-the-evidence review under
Jackson but declining to determine the propriety of that practice).
24
danger of unfair prejudice, confusion of the issues, or misleading the
jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” OCGA § 24-4-403. That said,
“the exclusion of relevant evidence under Rule 403 is an
extraordinary remedy that should be used only sparingly.” Albury v.
State, 314 Ga. 459, 461 (3) (877 SE2d 548) (2022) (citation and
punctuation omitted). Decisions whether to admit evidence under
these rules are “committed to the sound discretion of the trial court.”
Id. (citation and punctuation omitted).
(b) Five of the six contested photographs were taken during the
autopsy. Two of those photographs depicted, from different angles,
Jordan’s head with the scalp peeled back to show the hemorrhaging
beneath the scalp. Three others showed the various fractures on
Jordan’s skull. At the pretrial hearing, the State told the trial court
that Dr. Gowitt had specifically selected those photographs for use
during his testimony. During trial, Dr. Gowitt referred to these
photographs while describing the hemorrhaging and bruising
underneath Jordan’s scalp and the multiple fractures, some
25
affecting more than one bone within the skull—all of which, Dr.
Gowitt testified, indicated multiple impacts sustained from a non-
accidental cause, the effects of which would have been apparent
immediately or within a very short period of time.
The trial court did not abuse its discretion in admitting these
five photographs. Autopsy photographs may be relevant to show the
nature or extent of a victim’s injuries. See Albury, 314 Ga. at 462 (3);
Lanier v. State, 310 Ga. 520, 527-528 (4) (852 SE2d 509) (2020).
These photographs, which assisted the medical examiner in
describing the nature and severity of Jordan’s injuries, were highly
relevant to the issues of both how and when the injuries were
sustained. Because both the timing of the injuries and the manner
of their infliction were contested issues in the case, the photographs’
probative value was high. See Albury, 314 Ga. at 462 (3) (autopsy
photograph had “significant probative value” in supporting State’s
theory of how injuries were inflicted); Lanier, 310 Ga. at 527-528 (4)
(autopsy photographs admissible where they “corroborated the
State’s evidence of the circumstances of the killings”). And although
26
the photographs may have been graphic, we cannot say the trial
court abused its discretion in concluding that their probative value
was not substantially outweighed by the danger of unfair prejudice.
See Albury, 314 Ga. at 462 (3) (although photograph of victim’s head
with scalp and face peeled back may have been “gruesome,” trial
court did not abuse its discretion in admitting it because of its
probative value).
(c) The remaining photograph was taken before the autopsy.
This photo showed Jordan as she arrived from the hospital, with
various tubes, wires, and a neck collar still attached to her body. The
defense argued that the photo was inflammatory because of all the
“apparatuses” on Jordan; the State argued that was its
“identification” photo, as it had the medical examiner’s case number
on it, and it was being used to establish that the subject of the
autopsy was in fact the victim. After looking through various full
body pictures of the victim, the court ruled that the photograph at
issue could be used “as an ID shot.”
The relevance of the pre-autopsy photograph is questionable
27
given that the victim’s identity was not contested and the fact that,
unlike the other autopsy photos, it was of little relevance to the
victim’s injuries, which were largely internal. Cf. Perez v. State, 309
Ga. 687, 695 (3) (848 SE2d 395) (2020) (pre-autopsy photos were
properly admitted because they showed the nature and location of
victim’s wounds and thus were probative of “how the killing
occurred”). But we need not decide whether admitting the
photograph was error, because even assuming it was, the error was
harmless.
“Erroneous evidentiary rulings are subject to a harmless-error
test.” Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509) (2022). A
nonconstitutional error is harmless if it is “highly probable that the
error did not contribute to the verdict.” Id. (citation and punctuation
omitted). The burden to make this showing is the State’s to bear,
and in determining whether the showing has been made, we review
the record de novo and weigh the evidence as we would expect
reasonable jurors to have weighed it. Id. (citation and punctuation
omitted). Here, the single pre-autopsy photograph was not nearly as
28
graphic as the five properly admitted autopsy photographs, and the
evidence that Jordan’s injuries were inflicted on purpose, during a
period in which Jordan was under the supervision of Johnson alone,
was strong. Under these circumstances, it is highly probable that
any error in admitting this single pre-autopsy photograph did not
contribute to the verdicts. See Jenkins v. State, 270 Ga. 607, 609 (3)
(512 SE2d 269) (1999) (even assuming admission of pre-autopsy
photos was error, error was harmless in light of overwhelming
evidence of defendant’s guilt).
5. Johnson next contends that the trial court “erred and
violated the Sixth Amendment right of confrontation” by limiting
the defense’s cross-examination of Cole on certain topics.
Both the United States and Georgia Constitutions guarantee
to an accused the right to confront and cross-examine the witnesses
against him. See U.S. Const. amend VI; Ga. Const. of 1983, Art. I,
Sec. I, Par. XIV. See also Davis v. Alaska, 415 U.S. 308, 315 (2) (94
SCt 1105, 39 LE2d 347) (1974); Miller v. State, 266 Ga. 850, 856 (7)
(472 SE2d 74) (1996). To that end, our Evidence Code affords
29
criminal defendants “the right of a thorough and sifting cross-
examination . . . as to the witnesses called against [them].” OCGA §
24-6-611 (b). But “the right of cross-examination is not an absolute
right that mandates unlimited questioning by the defense.” Howard
v. State, 286 Ga. 222, 225 (2) (686 SE2d 764) (2009) (citation and
punctuation omitted). Trial courts have “wide latitude to impose
reasonable limits on cross-examination based on concerns about,
among other things, interrogation that is only marginally relevant.”
Lucas v. State, 303 Ga. 134, 137 (2) (810 SE2d 491) (2018) (citation
and punctuation omitted). See also OCGA § 24-6-611 (b) (providing
that scope of cross-examination extends to “any matter relevant to
any issue in the proceeding”). Trial courts also have discretion to
limit witness interrogation to “[p]rotect witnesses from harassment
or undue embarrassment.” OCGA § 24-6-611 (a) (3). We review a
trial court’s limitation on the scope of cross-examination for abuse of
discretion. See Lucas, 303 Ga. at 136-137 (2).
Here, Johnson contends that the trial court unduly limited his
right to confront Cole on three topics: (1) her purported dishonesty
30
about the paternity of the twins’ half-brother; (2) the fact that she
had lost custody of that child as well as Jordan’s twin; and (3) Cole’s
postpartum depression. Johnson contends broadly that, because
Cole was a “likely suspect” in Jordan’s death, he had the right to
“impeach” her on all of these subjects.
Johnson’s counsel cross-examined Cole at length on a variety
of topics, including her relationship with Johnson, her chronology of
the events of April 3 and 4, whether her brother and sister were
present at her mother’s home on April 3, and her statements to
Woodard and to law enforcement on April 4. Johnson’s counsel also
cross-examined Cole on her drug and alcohol abuse, her pending
felony charges, her depression, and the fact that she had lost custody
of Jordan’s twin and their older half-brother. So Johnson was
afforded a “thorough and sifting” cross-examination of Cole as a
general matter. And as to the specific topics of Cole’s depression and
her loss of custody, the trial court allowed Johnson to question Cole
about both. The only limitation the court imposed on these topics
was on questioning, related to the hospital visit during which
31
Johnson reported his concerns about Cole’s depression, which could
have created a false impression about the cause of the hospital visit.5
This limitation was well within the trial court’s discretion. See
Lucas, 303 Ga. at 138-139 (2).
The trial court also prohibited Johnson’s counsel from
questioning Cole about her purported dishonesty about the
paternity of the twins’ half-brother. But although Johnson correctly
notes that “[t]he credibility of a witness may be attacked by any
party,” OCGA § 24-6-607, a defendant does not have carte blanche
to question a witness on issues of marginal relevance that are
intended primarily to impugn the witness’s character or motives.
See Lucas, 303 Ga. at 138-139 (2) (trial court did not abuse
discretion by prohibiting cross-examination of prosecution witness
on his immigration status); Nicely v. State, 291 Ga. 788, 795-796 (4)
(733 SE2d 715) (2012) (trial court did not abuse discretion by
5 The trial court sought to prevent questioning that might have falsely
implied that the trip to the hospital resulted from Jordan’s twin brother’s fall
from a chair while unattended, when the actual reason for the trip was his
severe constipation.
32
prohibiting cross-examination of prosecution’s medical expert about
a purported “understanding among some Georgia medical
examiners that one will not testify ‘against’ the findings of another”).
The trial court did not abuse its discretion in prohibiting Johnson
from probing into Cole’s purported dishonesty about the paternity of
her twins’ half-brother. See Lucas, 303 Ga. at 138-139 (2).
Johnson’s claim that he was improperly limited in his ability
to cross-examine Cole therefore fails.
6. Johnson contends that the trial court erred in allowing the
medical examiner to testify about confessions in child-abuse cases,
because that subject was outside the field in which he was qualified
as an expert. Dr. Gowitt testified on direct examination that he had
been involved with at least 200 cases involving fatally abused
children, and that he had done consulting work for defendants in 40
to 50 such cases. He testified that in “about half” of the cases, the
defendant had confessed to the abuse; that “perpetrator confessions
are something that we read frequently” when doing defense work;
and that he was familiar with “many articles” in the “pediatric
33
forensic literature” on confessions by perpetrators of fatal child
abuse. Dr. Gowitt testified that, based on his experience and
knowledge of the literature, the “majority” of those who confessed
“admit that they lost their temper.” At this point, defense counsel
objected based on relevance, but the court overruled the objection.
Johnson now claims that the court erred in admitting this
testimony because it was outside the scope of forensic pathology.6
But because Johnson did not object on this basis at trial, we review
this claim only for plain error. See Mann v. State, 307 Ga. 696, 704
(2) (e) (838 SE2d 305) (2020). “To show plain error, an appellant
must show that (1) the alleged error was not affirmatively waived,
(2) it was obvious beyond reasonable dispute, and (3) it affected the
appellant’s substantial rights, which ordinarily means showing that
it affected the outcome of the trial.” Moore v. State, 315 Ga. 263, 272-
273 (4) (882 SE2d 227) (2022).
6 Johnson also asserts that he had no pretrial notice that Dr. Gowitt’s
testimony would exceed the scope of his expert qualifications. But because we
conclude below that the testimony was within the scope of Dr. Gowitt’s
qualifications, no such notice was required.
34
Given Dr. Gowitt’s direct experience with confessions in child-
abuse cases and his knowledge of the medical literature on the topic,
we see no obvious error in the trial court’s allowing him to testify on
this subject. See Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d
220) (1988) (no error in allowing expert to testify on a subject that
“was within the scope of his field according to his testimony”). And
whether or not allowing this testimony was obvious error, Johnson
has not shown how allowing the testimony, which fills scarcely two
of the almost 100 transcript pages of Dr. Gowitt’s testimony, affected
Johnson’s substantial rights. This claim is without merit.
7. Johnson contends that the trial court erred in excluding
testimony from a private investigator about his unsuccessful efforts
on behalf of the defense to locate and serve a subpoena on the
medical fellow who had assisted in the hospital’s investigation into
possible child abuse.
Before trial, the defense apparently had tried to locate the
medical fellow who had helped conduct interviews with Jordan’s
family members and had written a report with conclusions, which
35
Dr. Messner reviewed and approved. According to the defense, the
medical fellow was no longer employed with the hospital, and they
could not find her. Noting that both Dr. Messner and Woodard had
referred to “the information [the fellow] would have in this case,” the
defense argued that it needed to “demonstrate to the jury that we
did make attempts to track her down because we wanted to know
what she had to say.” The State objected, noting among other things
that the defense had failed to ask for a material-witness subpoena
for this witness, see OCGA § 17-7-191 (setting out a process by which
a criminal defendant may apply to “obtain subpoenas for such
witnesses as he deems material for his defense”), and that there was
no evidence she had been intentionally evading a subpoena. The
trial court excluded the testimony but noted that the defense would
be allowed to comment on the State’s failure to present the medical
fellow as a witness.
Johnson now claims that the exclusion of this evidence violated
his due process rights, but in support of this argument he cites only
36
two provisions of the Evidence Code that plainly do not apply. 7
Particularly given the defense’s failure to avail itself of the statutory
process for securing the attendance of material witnesses, see id., we
see no abuse of discretion in the trial court’s refusal to allow
testimony on this ancillary topic.
8. Lastly, Johnson contends that the trial court committed
plain error by failing to give a jury instruction on accident. See
OCGA § 16-2-2 (“A person shall not be found guilty of any crime
committed by misfortune or accident where it satisfactorily appears
there was no criminal scheme or undertaking, intention, or criminal
negligence.”).
In his written requests to charge, Johnson asked for an
instruction on the affirmative defense of accident. At the charge
conference, defense counsel argued that “our defense is that we don’t
know what happened. There’s not enough evidence to rule out.
7 Johnson cites OCGA §§ 24-8-804 (a) (5) (providing that a hearsay
declarant is “unavailable as a witness” if he is absent from the hearing and the
proponent of his statement “has been unable to procure [his] attendance”) and
§ 24-9-923 (regarding authentication of recordings and like evidence), neither
of which would have offered a basis for the private investigator’s testimony.
37
There’s certainly not enough to prove—to prove an intentional act.
And we think that there’s not enough evidence to rule out accident.”
But the trial court noted that binding precedent required the
defendant to admit to committing the act that caused the victim’s
death and thus ruled the instruction would not be given. Johnson’s
counsel relented and said, “OK. No objection.” Johnson now
contends that the failure to instruct the jury on accident was plain
error. See OCGA § 17-8-58 (b) (where a party fails to object to the
omission of a jury charge, such omission may be reviewed only for
plain error).
The court’s refusal to give an accident instruction was
consistent with the law in effect at the time of trial, which held that
the accident defense “generally requires an admission by the
defendant that [he] committed the act that caused the victim’s
death.” Kellam v. State, 298 Ga. 520, 522 (2) (783 SE2d 117) (2016)
(citation and punctuation omitted). But when we review jury
instructions for plain error, we look to the law in effect at the time
of our review. See Lyman v. State, 301 Ga. 312, 317 (2) (800 SE2d
38333) (2017) (in the review of asserted plain error under OCGA § 17-
8-58 (b), “whether an error is “clear or obvious” is judged at the time
of the appellate court’s review). And current law is clear that “[a]
criminal defendant is not required to ‘admit’ anything, in the sense
of acknowledging that any particular facts are true, in order to raise
an affirmative defense.” McClure v. State, 306 Ga. 856, 857 (834
SE2d 96) (2019). So the reason the trial court gave for refusing to
instruct on accident is not correct under current law. And because
Johnson’s testimony about the headboard incident offered some
evidence—albeit slight—from which the jury might have found that
Jordan’s injuries resulted from an accident, we must conclude that
the failure to give an accident instruction was an error that is
“obvious beyond reasonable dispute.” Moore, 315 Ga. at 272 (4). See
Sullivan v. State, 308 Ga. 772, 778-779 (2) (843 SE2d 411) (2020) (to
warrant the giving of a requested jury charge, the evidence
supporting the theory of the charge need only be “slight”).
Nonetheless, this error was unlikely to have “affected the
outcome of the trial.” Moore, 315 Ga. at 273 (4). Johnson’s primary
39
theory at trial was not that Jordan’s injuries resulted from an
accident, but that someone else—most likely Cole but possibly
anyone else who had contact with Jordan in the 24 hours before the
911 call—inflicted the injuries that caused her death. And although
Johnson offered up the headboard incident as a possible explanation
for Jordan’s injuries, testimony from all of the medical experts—
including Johnson’s—established that Jordan’s injuries were the
result of “considerable force” that was plainly inconsistent with
Johnson’s description of the headboard incident. For this reason,
Johnson has failed to establish plain error. See Sullivan, 308 Ga. at
778-780 (2) (failure to give accident instruction was harmless where
evidence of accident was contradicted by other evidence, including
expert testimony, that strongly supported a finding of intentional
conduct); Thomas v. State, 297 Ga. 750, 753 (2) (778 SE2d 168)
(2015) (no plain error in trial court’s refusal to give an instruction
on accident). See also McClure, 306 Ga. at 866-867 (Nahmias, P.J.,
concurring) (noting that failing to give an instruction on an
alternative defense supported by “only the slightest evidence” will
40
likely be harmless and “almost certainly will not amount to plain
error”). 8
Judgment affirmed. All the Justices concur.
8 In our analysis, we have assumed that the trial court erred by
admitting the pre-autopsy photograph and held that the trial court committed
a clear and obvious error by declining to instruct the jury on accident. Johnson
has not claimed cumulative error and therefore has not made any specific
argument as to why these two errors in combination prejudiced his defense.
See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who
wishes to take advantage of the [cumulative error rule] should explain to the
reviewing court just how he was prejudiced by the cumulative effect of multiple
errors.”). In any event, “we discern no apparent cumulative prejudice on this
record.” Prickett v. State, 314 Ga. 435, 445 (3) n.8 (877 SE2d 573) (2022).
41