BLACKWELL, Justice.
Roddicus Butler was tried by a Decatur County jury and convicted of the murder of Jamira Washington, a two-year-old child. Following the denial of his motion for new trial, Butler appeals, contending that the evidence is insufficient to sustain his conviction, that the trial court erred when it denied his motion to suppress certain statements that he gave to law enforcement, and that he was denied the effective assistance of counsel at trial. Upon our review of the briefs and record, we find no error, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Butler lived with Doretha Washington and her three young children — one of whom was Jamira — in a house in Bainbridge.
Later that afternoon, James Earl Spooner, Jr., an investigator with the Bainbridge Police Department, interviewed Butler at the house Butler shared with Doretha and the children. In that interview, Butler explained that he had slept until early afternoon, that he awoke and found Jamira unresponsive, that he attempted cardiopulmonary resuscitation (CPR), and that he then carried Jamira down the road in search of help.
The medical examiner subsequently determined that Jamira had died as a result of
At the second interview, Butler stuck at first to his original story.
On appeal, Butler contends that the State failed to prove beyond a reasonable doubt that he acted with malice, which is required, of course, to sustain a conviction for felony murder predicated on cruelty to children in the first degree. See OCGA § 16-5-70(b) ("Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain."). In support of this contention, Butler points to his own testimony at trial that he was merely attempting to discipline Jamira for soiling her pants and that the blows to her abdomen were accidental. Butler reasons that the State failed to rebut his testimony and that an effort to discipline a child does not show malice. We are unpersuaded.
It is true that a parent — or someone acting in loco parentis — may apply some force to a child as a disciplinary measure without violating the law. But the application of such force must be reasonable, and if it is not, it may go beyond mere discipline and instead amount to malicious infliction of "cruel or excessive physical or mental pain." Tabb v. State, 313 Ga.App. 852, 857(2), 723 S.E.2d 295 (2012) ("[A]pplied force is legally justified [to discipline a child] only when a parent's conduct in disciplining a child is reasonable.") (citation and punctuation omitted). See also OCGA § 16-3-20(3) ("The defense of justification can be claimed ... [w]hen the person's conduct is the reasonable discipline of a minor by his parent or a person in loco parentis[.]"). Here, the evidence concerning the severity and scope of the injuries that Jamira sustained would permit an inference that whoever struck Jamira did so maliciously and that the injuries were not the result of reasonable disciplinary measures. Moreover, Butler offered inconsistent accounts of the events that led to Jamira's death, suggesting a consciousness of guilt, and he eventually admitted that he was responsible for the injuries that Jamira sustained only after he was confronted by Investigator Spooner with the findings of the medical examiner. Although Butler testified at trial that he only intended to discipline Jamira, it is for the jury, not appellate judges, to "resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient." Nicely v. State, 291 Ga. 788, 790(1), 733 S.E.2d 715 (2012) (citation and punctuation omitted). See also Sears v. State, 290 Ga. 1, 2(2), 717 S.E.2d 453 (2011). The evidence in this case was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Butler striking Jamira did not amount to reasonable discipline of the child, that he acted with the requisite malice,
2. We next consider the contention that the trial court erred when it denied a motion to suppress the oral and written statements that Butler gave to Investigator Spooner at the second interview. The record shows that Investigator Spooner attempted to make an audio and video recording of the interview, but the recording stopped before the interview was complete. Investigator Spooner realized at some point that the recording had stopped, and at that point, he replaced the tape on which the interview was being recorded and attempted to restart the recording. Images of Butler writing out a statement appear on the second tape, but the audio recording equipment apparently malfunctioned and failed to record the sounds of the remainder of the interview on the second tape. Evidently, neither tape recorded Butler waiving his Miranda
At a Jackson-Denno
Humphreys v. State, 287 Ga. 63, 73(6), 694 S.E.2d 316 (2010) (citation omitted).
In this case, we cannot say that the trial court clearly erred when it credited the testimony of Investigator Spooner, and we cannot say that it erred when it concluded that the statements given by Butler were voluntary and, therefore, admissible.
3. Last, we consider the contention that Butler was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Butler must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that the performance of his lawyer was deficient, Butler must prove that she performed her duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688(III)(A), 104 S.Ct. 2052. See also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to show that he was prejudiced by the performance of his lawyer, Butler must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052. See also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, though not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. We conclude that Butler has failed to carry his burden.
(a) Butler first claims that his trial lawyer was ineffective because she failed to object when Investigator Spooner testified that, after Butler stuck to his original story at the outset of the second interview, Investigator Spooner told Butler: "[Y]ou and I both know this is not exactly what happened[.] You are holding something out, apparently you got mad and lost your temper or whatever." Citing Axelburg v. State, 294 Ga.App. 612, 617-618(2), 669 S.E.2d 439 (2008) and Holland v. State, 221 Ga.App. 821, 825(3), 472 S.E.2d 711 (1996), Butler argues that Investigator Spooner should not have been permitted to offer "opinion testimony" that reflected his assessment of Butler's original story, testimony that, Butler contends, improperly touched upon the ultimate issue. It is true enough that, generally speaking, "[a]
Like any other evidence, testimony reflecting comments made by an officer in the course of an interview ought not be admitted if the probative value of the testimony is substantially outweighed by its tendency to unduly arouse emotions of prejudice, hostility, or sympathy.
The probative value of this testimony was not substantially outweighed by its prejudicial effect. It hardly would have surprised anyone observing the trial to learn that Investigator Spooner was not satisfied with the original story that Butler had offered and believed instead that Butler was not telling the whole truth about what had happened to Jamira, and any rational juror could have surmised as much without being told explicitly.
(b) Butler also asserts that his trial lawyer was ineffective because she failed to object on two other occasions on which witnesses expressed opinions, he says, on the ultimate issue. In one instance, the prosecuting attorney asked Investigator Spooner, based on his investigation, "who killed Jamira," and Investigator Spooner responded, "Roddicus Butler." In the other instance, the medical examiner testified that he "delineate[d] the manner of [Jamira's] death as a homicide." "Generally, witnesses are prohibited from expressing opinions on an ultimate issue where jurors can come to their own conclusion from factors within their understanding." Sharpe v. State, 291 Ga. 148, 149-150(2), 728 S.E.2d 217 (2012) (citation omitted). In this case, however, the identity of the person who caused the death of Jamira and that her death was a homicide were not disputed. See Mangrum v. State, 285 Ga. 676, 679(4), 681 S.E.2d 130 (2009); Berry v. State, 282 Ga. 376, 382-383(6), 651 S.E.2d 1 (2007) ("homicide means `the killing of any human being'") (citation and punctuation omitted). Butler instead defended the case on the grounds that his conduct was justified as reasonable discipline of Jamira and that his striking her in the abdomen was an accident. See OCGA §§ 16-2-2, 16-3-20(3). Accordingly, the ultimate issues for the jury were whether Butler striking Jamira was justified and whether the fatal blows were landed accidentally. See Cade v. State, 289 Ga. 805, 810(5), 716 S.E.2d 196 (2011); Mangrum, 285 Ga. at 679(4), 681 S.E.2d 130; Berry, 282 Ga. at 383(6), 651 S.E.2d 1 (defense of justification or provocation was ultimate issue); Willis v. State, 274 Ga. 699, 701(3), 558 S.E.2d 393 (2002) (defense of accident was ultimate issue). Because the testimony in question did not actually go to the ultimate issue, Butler has not shown that the failure of his lawyer to object to the testimony of which he complains could not have been sound trial strategy, see Berry, 282 Ga. at 383(6), 651 S.E.2d 1, nor has he shown a reasonable probability that the outcome of the trial would have been different if Butler's lawyer had objected.
(c) Butler further contends that his trial lawyer was ineffective when she failed to object to opinion testimony by Investigator Spooner about the proper administration of CPR measures,
(d) Finally, Butler complains that his lawyer failed to object to the prosecuting attorney asking leading questions of the witnesses for the State, but Butler cites only six leading questions asked in the direct and redirect examinations of the medical examiner and two leading questions during the direct examination of Investigator Spooner. Having reviewed each leading question in its context, we conclude that Butler has not met his burden to rebut the presumption that the failure to object to the leading questions might have been sound trial strategy. As a result, he has failed to show deficient performance. Mitchell, 290 Ga. at 492(4)(a), 722 S.E.2d 705. Moreover, Butler has not proved that he suffered any prejudice as the result of his trial lawyer's failure to object to any leading questions. See Butts v. State, 273 Ga. 760, 768(17), 546 S.E.2d 472 (2001).
(e) In conclusion,
Jones v. State, 289 Ga. 111, 114(2)(a), 709 S.E.2d 773 (2011) (citations omitted).
Judgment affirmed.
All the Justices concur.