holding that trial counsel was not ineffective in failing to move for a mistrial because the trial court, under the circumstances, “would have been well within its discretion to deny a mistrial”
How later courts described this case
- holding that trial counsel was not ineffective in failing to move for a mistrial because the trial court, under the circumstances, “would have been well within its discretion to deny a mistrial”
- Evidence of defendant’s acts of depriving victim of sustenance was found to be a proximate cause of the victim’s death where the evidence showed that the victim’s starvation severely affected his ability to heal from the physical abuse he suffered at the hands of the defendant and another.
Written by the judges who cited it.
The opinion
In the Supreme Court of Georgia
Decided: September 14, 2015
S15A0992. BROWN v. THE STATE.
NAHMIAS, Justice.
Appellant Corey Allen Brown was convicted of felony murder based on
child cruelty in connection with the death of two-year-old Prince Davis, Jr.
Appellant contends that the evidence presented at his trial was insufficient to
support his conviction; that his trial counsel provided ineffective assistance by
failing to object to the jury instructions on proximate causation and by failing
to request a mistrial during closing arguments; and that the trial court erred by
giving a jury instruction on prior consistent statements. We affirm.1
1
The victim died on January 16, 2007. On February 13, 2007, Appellant was indicted in
Liberty County for two counts of malice murder, two counts of felony murder, and two counts of
cruelty to children in the first degree. Appellant was re-indicted on September 14, 2009, for the
same charges. The State filed notice of its intent to seek the death penalty, but later decided to seek
a sentence of life without parole. Appellant and Andrea Wilson, who had been indicted separately,
were tried together from October 20 to 27, 2010. The jury found Appellant not guilty of malice
murder but guilty of the remaining four counts, and the trial court sentenced him to serve two
concurrent terms of life without parole for the two counts of felony murder. On November 22, 2010,
Appellant filed a motion for new trial, which he amended on September 6, 2013. After an
evidentiary hearing, the trial court denied the motion on its substantive grounds, but noted the need
to re-sentence Appellant to address a merger issue. On November 24, 2014, the trial court entered
an order re-sentencing Appellant to life in prison without parole for only one count of felony murder
and vacating or merging the remaining counts. Appellant filed a timely notice of appeal, and the
case was docketed in this Court for the April 2015 term and submitted for decision on the briefs.
1. Viewed in the light most favorable to the verdict, the evidence at
trial showed the following. In March 2006, Appellant and Andrea Wilson, his
live-in girlfriend and co-defendant, agreed to take in and care for Davis while
the child’s mother, who was Wilson’s cousin, was incarcerated. Davis was
under the exclusive care of Wilson and Appellant for the next nine months.
Family members who had previously cared for Davis testified that he was
generally a happy and healthy baby with a normal appetite; his only medical
problem was that he had asthma and occasionally needed to treat flare-ups with
a breathing machine. By contrast, Appellant and Wilson told investigators that
when Davis was in their care, he was sickly, threw temper tantrums, had
seizures, and refused to eat. Appellant told investigators that he and Wilson
believed Davis had demons inside him, and they frequently prayed over him and
tried to force him to swallow prayer oil.
At trial, Appellant did not testify. Wilson testified that she had seen
Appellant beating Davis on numerous occasions, but she was too afraid to
intervene because he had been abusive to her in the past. Wilson’s cousin also
We previously affirmed the conviction of Appellant’s co-defendant in Wilson v. State, 297 Ga. 86
(772 SE2d 689) (2015).
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testified that he saw Appellant hitting the child at least twice during his brief
stay as a houseguest. Wilson and her cousin both described Appellant hitting
Davis in the middle of the back by making a chopping motion with his hand.
They also saw Appellant beating the child hard with a belt. Wilson and
Appellant admitted to investigators that they both hit Davis with switches and
a wet washcloth, but claimed that they stopped when they realized it was leaving
marks on his skin.
On January 16, 2007, Appellant rode his bicycle to a job site roughly two
miles from his home, signing into work at 5:15 p.m. According to Wilson,
sometime after Appellant left, she was with Davis outside the house and put a
Bible on his stomach until she saw “his head slumped back like he was sleepy”;
she then took Davis inside, sat him in a car seat, and went into the kitchen to
heat up some oatmeal; and when she returned, she found that the child had fallen
out of the car seat and was not breathing. Wilson went to a neighbor’s house to
call 911 at approximately 6:43 p.m. The paramedics and emergency room staff
could not revive Davis, and he was pronounced dead at the hospital at 8:00 p.m.
The State’s medical expert – the forensic pathologist who performed the
autopsy on Davis – testified that the time of death was between 4:00 and 6:00
3
p.m. and that the cause of death was battered child syndrome. Contributing
factors were malnutrition, medical neglect, chronic blunt force trauma, and acute
blunt force trauma; these factors acted in concert, and there was no specific,
isolated acute injury which alone caused his death. Over 160 different injuries
covered Davis’s entire body, 44 of which were inflicted during the last two
hours of his life. These injuries included bruises on his brain, spine, kidneys,
and face; numerous scars, scabs, abrasions, and burn marks; bruised and swollen
genitalia; and a necrotic (gangrenous) toe that resulted from an immersion burn
at least a week before his death. The autopsy revealed blood in the child’s
retinas and cervical vertebrae, indicating chronic and recent trauma that could
have affected Davis’s ability to breathe. Many of the injuries were pattern
bruises consistent with a wire clothes hanger. The injuries appeared to be
neither accidental nor self-inflicted.
In addition, the presence of ketone bodies in the child’s urine indicated
starvation; Davis weighed only 21 pounds when he died. The State’s expert
testified that this lack of sustenance jeopardized Davis’s health and made it
harder for his body to recover from the physical abuse he suffered. Apart from
oatmeal, investigators found no food suitable for a child in Appellant’s home,
4
and Appellant and Wilson admitted that they never obtained medical treatment
for Davis.
Appellant’s medical expert reviewed the autopsy report and agreed that
Davis was clearly malnourished, that the lack of sustenance jeopardized his
health, and that he had many injuries that were not accidental or self-inflicted.
The defense expert opined, however, that the combination of the injuries and
malnourishment was not fatal. Pointing to testimony from Wilson that she
believed “if I didn’t put the Bible on him, to be honest, this wouldn’t have
happened,” and evidence of a fresh bruise on Davis’s upper abdomen, the
defense expert asserted that Davis’s time of death was 6:30 p.m. and the cause
of death was compression asphyxiation. But the State’s expert disagreed,
explaining that the abdomen bruise was not shaped like a book and that, without
direct evidence, compression asphyxiation can only be a diagnosis of exclusion.
2. Appellant contends that the State did not sufficiently prove that any
specific action of his proximately caused Davis’s death. We disagree.
Appellant was convicted of felony murder based on depriving Davis of
necessary sustenance. Under OCGA § 16-5-70 (a),
[a] parent, guardian, or other person supervising the welfare of or
5
having immediate charge or custody of a child under the age of 18
commits the [felony] offense of cruelty to children in the first
degree when such person willfully deprives the child of necessary
sustenance to the extent that the child’s health or well-being is
jeopardized.
The evidence at trial showed that Appellant and Wilson were the exclusive care-
givers for Davis during the final nine months of his life. Wilson appears to have
been the child’s primary care-giver, but the evidence established that Appellant
and Wilson aided and abetted each other in the mistreatment of the child. See
OCGA § 16-2-20 (defining parties to a crime).
Moreover, Appellant took direct responsibility for Davis’s nourishment,
telling investigators that he specifically made sure there was enough food for
Wilson and Davis because he believed it was a man’s duty to provide for his
family. At the time of Davis’s death, however, there was no food in the house
suitable for a child other than oatmeal, and the ketone bodies in the child’s urine
indicated that he was severely malnourished and had been for an extended
period of time. Accordingly, the jury could reasonably conclude that Appellant
participated in willfully depriving Davis of necessary sustenance to the extent
that the child’s health and well-being were jeopardized, in violation of OCGA
§ 16-5-70 (a). See Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It
6
was for the jury to determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.’” (citation omitted)); Knight v.
State, 233 Ga. App. 819, 821-822 (505 SE2d 796) (1998) (“Whether [Appellant]
either perpetrated or otherwise was a party to [depriving a child of necessary
sustenance], within the meaning of OCGA § 16-2-20, and whether the act was
done willfully, were issues for jury resolution.”).
A defendant is guilty of felony murder if, in the commission of the
predicate felony, he proximately causes the victim’s death. See OCGA § 16-5-1
(c); State v. Jackson, 287 Ga. 646, 648-652 (697 SE2d 757) (2010). This Court
has long recognized that:
Where one inflicts an unlawful injury, such injury is to be
accounted as the efficient, proximate cause of death, whenever it
shall be made to appear, either that (1) the injury itself constituted
the sole proximate cause of the death; or that (2) the injury directly
and materially contributed to the happening of a subsequent
accruing immediate cause of the death; or that (3) the injury
materially accelerated the death, although proximately occasioned
by a pre-existing cause.
Wilson v. State, 190 Ga. 824, 829 (10 SE2d 861) (1940). See also Jackson, 287
Ga. at 654 (“Proximate causation imposes liability for the reasonably
foreseeable results of criminal . . . conduct if there is no sufficient, independent,
7
and unforeseen intervening cause.”). In this case, the State’s medical expert
testified that Davis’s malnutrition materially contributed to his death from
battered child syndrome, because that starvation severely affected the child’s
ability to heal from the chronic and acute physical abuse he suffered at the hands
of Appellant and Wilson. Thus, when viewed in the light most favorable to the
verdict, the evidence presented at trial and summarized above was sufficient to
authorize a rational jury to find Appellant guilty beyond a reasonable doubt of
the crime for which he was convicted, and in particular to find that Appellant’s
participation in depriving Davis of necessary sustenance was a proximate cause
of the child’s death. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SC 2781,
61 LE2d 560) (1979); Wilson v. State, 297 Ga. 86, 87 (772 SE2d 689) (2015);
Wilson, 190 Ga. at 829.
3. Appellant next contends that his trial counsel provided ineffective
assistance in two ways. To prevail on these claims, Appellant must show that
his lawyers’ performance was professionally deficient and that, but for the
deficiency, there is a reasonable probability that the outcome of the trial would
have been more favorable to him. See Strickland v. Washington, 466 US 668,
687, 694 (104 SC 2052, 80 LE2d 674) (1984); Woodard v. State, 296 Ga. 803,
8
814-815 (771 SE2d 362) (2015). Neither of Appellant’s claims satisfies this
test.
(a) Appellant asserts first that his trial counsel were ineffective
in failing to object to the pattern felony murder instruction given by the trial
court, suggesting that his lawyers should have requested a separate charge that
explained the principles of proximate causation more fully. During the final
jury charges, the court read the indictment, which tracked the causation
language of the felony murder statute; gave instructions on parties to a crime
and the child cruelty charges; and in instructing on the felony murder counts,
specifically advised the jury that the victim’s
homicide must have been done in carrying out the unlawful act and
not collateral to it. It is not enough that the homicide occurred soon
or presently after the felony was attempted or committed. There
must be some legal relationship between the homicide and the
felony so as to cause you to find that the homicide occurred before
the felony was at [an] end or before any attempt to avoid conviction
or arrest for the felony. The felony must have a legal relationship
to the homicide, be at least concurrent with it in part and be a part
of it in an actual and material sense. A homicide is committed in
the carrying out of a felony when it is committed by the accused
while engaged in the performance of any act required for the full
execution of the felony.
When viewed as a whole, these charges were sufficient to instruct the jury
9
on the principles of proximate causation relevant to this case. See White v.
State, 281 Ga. 276, 280 (637 SE2d 645) (2006) (“Jury instructions are read and
considered as a whole in determining whether there is error.”). In addition,
Appellant has not identified the specific alternative or additional instructions he
believes should have been requested to improve the jury’s understanding of the
concept. Thus, he has failed to show that there is a reasonable probability that
the outcome of the trial would have been different if his counsel had requested
some unarticulated different charge. See Cordero v. State, 296 Ga. 703, 709
(770 SE2d 577) (2015) (concluding that the jury charge quoted above was
adequate in defining proximate causation and adding that, “even if counsel had
requested that the trial court charge on the principles of proximate cause
discussed in Jackson and the court had done so, there is not a reasonable
probability that the outcome of Appellant’s trial would have been different”).
See also Benson v. State, 294 Ga. 618, 623 (754 SE2d 23) (2014); Sapp v. State,
290 Ga. 247, 250-251 (719 SE2d 434) (2011).
(b) Appellant also contends that his trial lawyers were ineffective
in failing to object or move for a mistrial when the prosecutor began to cry
during his closing argument. The trial transcript does not indicate any such
10
emotional incident, nor did the judge or any of the five experienced defense
lawyers who were present comment on one, but at the motion for new trial
hearing, the prosecutor acknowledged that he briefly became “noticeably choked
up” while describing Davis’s many injuries. This Court has long recognized
that trials often evoke strong feelings, and “[i]t would be unreasonable to expect
that all emotions be completely frozen during a trial by jury when such effective
bridle on emotions cannot be sustained elsewhere.” Forney v. State, 255 Ga.
316, 318 (338 SE2d 252) (1986) (citations and punctuation omitted). Lawyers
should certainly strive to maintain their composure during trials, but the record
here indicates that the prosecutor’s emotional display was neither extended nor
excessive.
At the motion for new trial hearing, Appellant’s lead trial counsel said that
he should have objected and moved for a mistrial, but “hindsight has no place
in an assessment of the performance of trial counsel.” Jones v. State, 292 Ga.
593, 600 (740 SE2d 147) (2013). Instead,
[t]o prove deficient performance, [Appellant] must show that his
attorney performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms. Courts reviewing ineffectiveness claims must
apply a strong presumption that counsel’s conduct fell within the
11
wide range of reasonable professional performance. Thus,
decisions regarding trial tactics and strategy may form the basis for
an ineffectiveness claim only if they were so patently unreasonable
that no competent attorney would have followed such a course.
Babbage v. State, 296 Ga. 364, 367 (768 SE2d 461) (2015) (citations and
punctuation omitted). Under the circumstances here, we cannot say that no
competent attorney would have made the tactical decision to let the prosecutor’s
momentary display of emotion pass, rather than objecting and drawing attention
to it. See Jones, 292 Ga. at 601; Braithwaite v. State, 275 Ga. 884, 886 (572
SE2d 612) (2002). Moreover, even if trial counsel had made an objection, the
trial court would have been well within its discretion to deny a mistrial. See
Dick v. State, 246 Ga. 697, 705-706 (273 SE2d 124) (1980). Accordingly,
Appellant also has failed to establish prejudice on this claim.
4. Finally, Appellant contends that the trial court erred in giving the
jury an instruction on prior consistent statements. Because he did not object to
this instruction at trial, we review his claim only for plain error, meaning that we
will reverse the trial court only “‘if the instructional error was not affirmatively
waived . . . , was obvious beyond reasonable dispute, likely affected the outcome
of the proceedings, and seriously affected the fairness, integrity, or public
12
reputation of judicial proceedings.’” Woodard, 296 Ga. at 806 (citation
omitted). See also OCGA § 17-8-58 (b).
Appellant relies on this Court’s holding in Stephens v. State, 289 Ga. 758
(716 SE2d 154) (2011), that “an instruction on prior consistent statements
should no longer be given except where the circumstances of an unusual case
suggest that the jury may have the mistaken impression that it cannot consider
a prior consistent statement as substantive evidence.” Id. at 759. Although
Stephens was not decided until a year after Appellant’s trial, before his trial the
Court of Appeals had expressed doubts about the prior consistent statements
charge. See Boyt v. State, 286 Ga. App. 460, 468 (649 SE2d 589) (2007) (“The
better practice would be to give no charge at all on prior consistent statements
and leave that matter to the arguments of counsel.”). Even assuming that the
giving of the charge was “obvious” error, however, Appellant’s claim fails
because he has not demonstrated that the instruction “likely affected the
outcome of the proceedings.” The prior inconsistent statements instruction
essentially just stated a truism and thus, as in most cases, any error in giving the
charge was harmless. See Stephens, 289 Ga. at 760; Boyt, 286 Ga. App. at 468.
Judgment affirmed. All the Justices concur.
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