Medlock v. State , 263 Ga. 246 ( 1993 )

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 SC 2781, 61 LE2d 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 SE2d 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 SE2d 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 SE2d 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). 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.

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). 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).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 SE2d 687) (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 unintentional 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 SE2d 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 SE2d 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.

1 The crime occurred on December 17, 1991 and Medlock was indicted on March 9, 1992. He was tried beginning on March 30, 1992; the jury returned its verdict on April 1, 1992 and the sentence was filed on April 2, 1992. Medlock’s motion for new trial, filed April 23, 1992, and amended on July 29, 1992, was denied on September 15, 1992. He filed his notice of appeal on September 21, 1992. The case was docketed in this court on October 15, 1992 and submitted for decision without oral argument on November 27, 1992.

2 The state’s arguments on appeal that the law on this particular issue is unsettled, that our holding in Christenson was a change in the law, that there is a difference between character and reputation witnesses, and that Christenson is limited to cases in which the state seeks the death penalty are totally without merit. Christenson did not work a change in the law but was a restatement of what has been the law in Georgia for quite some time. Accord Watson v. State, 137 Ga. App. 530 (8) (224 SE2d 446) (1976), cert. den., Hudson v. State, 163 Ga. App. 845 (4) (295 SE2d 123) (1982), cert. den., Simmons v. State, 168 Ga. App. 1 (5) (308 SE2d 27) (1983); Clark v. State, 186 Ga. App. 106 (6) (366 SE2d 361) (1988), cert. granted and decision affirmed in State v. Clark, 258 Ga. 464 (369 SE2d 900) (1988); Dover v. State, 192 Ga. App. 429 (7) (385 SE2d 417) (1989); and Williams v. State, 201 Ga. App. 384 (411 SE2d 316) (1991). It is also clear, from Nassar, supra, State v. Clark, supra, as well as the opinions of the Court of Appeals referred to above, that our holding in Div. 8 (c) of Christenson is in no way limited to cases in which the death penalty is being sought.

Further, the state’s argument that Christenson is distinguishable, and that it was not required to provide support for the questions asked of the character witnesses in this case because those questions did not refer to specific felony convictions, “but was merely use of a hypothetical question to determine the parameters of the witnesses’ definition of good character,” is specious.

3 Medlock’s account was that the infant placed his feet against Medlock’s chest, “kicked off,” and fell backwards, landing on his head. The expert testified that his findings might be consistent with the infant having been either rotated rapidly clockwise and counterclockwise, or having been pushed and pulled, and that the rotations would have to have been done forcefully, causing the baby’s head to be whiplashed back and forth, and the pushing and pulling would also have to have been done while the infant was forcefully shaken, causing his head to whiplash back and forth. Neither of these situations is consistent with Medlock’s defense.

The dissent argues, based on the grandmother’s testimony regarding her shaking the infant in her efforts to resuscitate him, that her actions might have resulted in the injuries observed by the expert. However, the expert testified that the injuries he had observed, consistent with shaking, were the cause of death. Medlock does not contend the grandmother killed the baby in her resuscitation efforts. Rather, he contends death resulted accidentally, from the baby’s pushing off him and falling to the floor.

Thus, the expert’s conclusion that death resulted from homicide, under the facts of this case, merely reiterates his previous testimony that death resulted from shaking, and is not contradicted by Medlock’s defense of accident.

4 OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

5 In fact, the jury may very well not have understood that the district attorney was referring to the motion for directed verdict, which was made outside the jury’s presence but might have believed that the district attorney was referring to the defense motion for mistrial, which had just been overruled within the jury’s presence.