CARLEY, Presiding Justice.
After a jury trial, Appellant Tony Orlander Whitaker was found guilty of felony murder and cruelty to children. The trial court entered judgment of conviction for the felony murder and sentenced Appellant to life imprisonment. The cruelty to children charge merged into the felony murder conviction. Appellant appeals after the denial of a motion for new trial.
1. Construed most strongly in support of the verdicts, the evidence shows that on May 17, 1999, Shonda Sweet left her 13-month-old twin sons with Appellant while she ran errands for the day. At some point, Appellant phoned his godmother, Dorothy Williams, asking her to come over to his house. Ms. Williams, noticing that Appellant sounded upset, drove to Appellant's home with her husband Dennis and her daughter Denata. Upon arriving, Appellant asked Ms. Williams to check on Darrius, one of the twins, because he could not awaken him. When Ms. Williams entered the bedroom, she saw Darrius lying face down on the corner of the bed and his lips were purple. Mr. Williams called 911, and Denata attempted to perform CPR on Darrius but had no success. Paramedics arrived and tried to revive the child. Darrius was then taken to the hospital, but he was declared dead on arrival.
Speaking with hospital staff and law enforcement, Appellant reported that Darrius had been ill and indicated that he had heard something fall and found the child on the floor next to the bed. Appellant stated that the child was breathing and that he placed the child back on the bed. Later, when he went to check on Darrius, he saw that the baby was not breathing and that he had been vomiting out of the mouth and nose.
The forensic pathologist who performed the autopsy found swelling and a patterned injury on the back of the head, suggesting that the victim's head was struck on an uneven surface. There were circular bruises on the forehead indicating "grip marks where somebody's grabbed the child's head and squeezed vigorously, or knuckle marks where somebody's rapped a knuckle on the head, or even knuckle marks in terms of punching." The victim also had several fractures in his skull. The pathologist testified that, because the plates in the skull of a 13-month-old child are not yet fully hardened, the cause of the skull fractures must have been a sharp force. The victim also suffered damage to his brain, including hemorrhages and bruising and swelling of the brain itself. The victim had bruises along the buttocks, back, and head. The pathologist testified that these injuries were acute, meaning that they were less than three to four hours old. He concluded that the injuries were caused by blunt force trauma by shaking and impact, with the bruises along the victim's body corresponding with where the victim was likely grabbed. The pathologist also stated that the victim could not have sustained the type and severity of injuries as those found from simply falling off a bed.
Appellant contends that the evidence against him was merely circumstantial and thus the State was required to show that the proved facts excluded "`every other reasonable hypothesis save that of [his]
Whitus v. State, 287 Ga. 801, 803(1), 700 S.E.2d 377 (2010). Here, it is undisputed that the victim did not have the physical injuries outlined above when Ms. Sweet left her house on the day of the crime. It is also undisputed that, besides the victim's baby brother, Appellant was the only person present during the hours in which the victim was physically injured and began to show signs of shaken baby syndrome. The pathologist testified that the location and severity of injuries was inconsistent with a mere fall from the bed. "And the jury was not required to believe [Appellant's] version of events, but was authorized to weigh it against the medical testimony.... [Cit.]" Mahan v. State, 282 Ga.App. 201, 203(1), 638 S.E.2d 366 (2006). Therefore, after reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to have authorized a jury to find that the State excluded all reasonable hypotheses except that of Appellant's guilt, and to have authorized any rational trier of fact to find Appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Mahan v. State, supra; Johnson v. State, 278 Ga.App. 66, 68(1), 628 S.E.2d 183 (2006); Hood v. State, 273 Ga.App. 430, 433(1), 615 S.E.2d 244 (2005).
2. Appellant contends that trial counsel rendered ineffective assistance of counsel by failing to object to pervasive comments on Appellant's pre-arrest silence. Specifically, Appellant points to testimony elicited by the prosecutor from Department of Family and Children Services investigator Natalie Green, the responding emergency medical technicians, and hospital personnel regarding his failure to seek help for the victim earlier, his failure to claim responsibility for the victim, and his failure to give information in response to queries regarding what had happened to the victim. According to the record, the prosecutor also commented upon this testimony regarding Appellant's pre-arrest silence during opening and closing arguments.
"`To prevail on a claim of ineffective assistance of counsel, [Appellant] must show both that his trial attorney's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).'" Greer v. Thompson, 281 Ga. 419, 420, 637 S.E.2d 698 (2006). However, "`this Court is not required to address ... "both components if the defendant has made an insufficient showing on one." (Cit.)' [Cit.]" Turpin v. Curtis, 278 Ga. 698, 699(1), 606 S.E.2d 244 (2004). The trial court found that Appellant made an insufficient showing on the prejudice prong, and we "must affirm the ... court's determination of this claim unless `its "factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. (Cit.)" (Cit.)' [Cit.]" Turpin v. Curtis, supra.
In order to satisfy the prejudice prong, Appellant must show that but for his trial counsel's alleged deficiencies, "there is a reasonable probability that the outcome of the proceeding would have been different.... [Cit.]" Johnson v. State, 290 Ga. 382, 383(2), 721 S.E.2d 851 (2012). As the trial court emphasized, there was strong evidence of Appellant's guilt, including that it was undisputed that Appellant was the only adult caring for the victim when he received his mortal injuries and that Appellant's defense that the baby fell from the bed was not supported
3. In the present case, the original motion for new trial was filed on February 8, 2000. Over ten years passed before the first hearing on this motion took place. Appellant asserts that he was denied his constitutional right to due process because the long delay prevented him from presenting an adequate appeal.
Chatman v. Mancill, 280 Ga. 253, 256(2)(a), 626 S.E.2d 102 (2006). The trial court ruled, and the State conceded, that the first three speedy trial factors are implicated in the present case. As the trial court found,
However, the trial court found that the inordinate delay did not prejudice Appellant's case.
Loadholt v. State, 286 Ga. 402, 406(4), 687 S.E.2d 824 (2010). Appellant contends that his appeal has been prejudiced by the long delay because he is unable to assert several ineffective assistance of counsel claims due to trial counsel being unable to remember details of the case. He asserts that trial counsel was ineffective by failing to raise a preexisting medical condition of the victim, by failing to object to the use of a Styrofoam head by the prosecutor to reenact the State's version of what occurred, by failing to request a polygraph examination for Appellant, and by failing to call witnesses who would testify that Ms. Sweet physically abused the victim.
However, a thorough review of the transcript of the hearing on the motion for new trial reveals that trial counsel remembered sufficient details of the case to reply to Appellant's assertions of ineffectiveness. With regard to the prior medical condition, trial counsel testified at the motion for new trial hearing that Appellant's own medical expert agreed with the forensic pathologist who testified at trial that the cause of the victim's death was a homicide and not some alleged mysterious condition of the victim. Moreover, Appellant has not put forth any evidence of what type of medical condition the victim had and how that medical condition would have contributed to the victim's severe, multiple injuries. With regard to the Styrofoam head, trial counsel testified that he believed that the use of the Styrofoam head for demonstrative purposes was not objectionable, and, in any event, he testified that his strategy was not to object to every little thing but only to that which he felt was of great import, and, in his view, the use of a
Judgment affirmed.
All the Justices concur.