NAHMIAS, Justice.
Appellant Deonte T'varis Smith challenges his conviction for felony murder in connection with the death of his two-month-old daughter, Keymaya Smith. Appellant contends that the trial court committed reversible error by allowing the State to cross-examine him about tattoos on his arm and by allowing the State's expert witness to give a demonstration using a baby doll. As explained below, the trial court abused its discretion
1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On the evening of April 12, 2012, Appellant was at his trailer home with the baby victim and her mother, Shamiah Rainey. Appellant's sister and Rainey's one-year-old son were also there. The baby was fussy, and Rainey and Appellant attempted to calm her on several occasions throughout the night. The last time the baby woke up crying, Appellant went into her room alone; after he was there for several minutes, the baby began exhibiting signs of distress. Appellant's sister was in her room the whole time, and Rainey was in the living room with the one-year-old. At some point, Rainey noticed that she had a missed call from Appellant on her cell phone, so she went into the baby's room. As soon as she saw the baby, Rainey told Appellant that they needed to take her to the emergency room.
Rainey and Appellant then drove the baby to Bainbridge Hospital. When they reached the hospital, the baby was not breathing and was in cardiac arrest. The medical staff was able to resuscitate her, but she required life support equipment. A nurse noticed abnormal bruises that were just starting to form on the baby's cheek and abdomen. The on-call pediatrician, Dr. Michael Carpenter, decided that the baby needed to be in a neonatal intensive care unit and ordered her to be transported to nearby Tallahassee Memorial Hospital. Appellant told Dr. Carpenter that the baby had been fussy and had not had a bowel movement that day. He also told Dr. Carpenter that he tried to facilitate a bowel movement by "squeezing" her around the abdomen and demonstrated with his hands. Dr. Carpenter later testified that he found Appellant's explanation and demonstration atypical of the way that anyone would assist a baby having difficulty with a bowel movement. Rainey testified that the baby had had a bowel movement that day, and the medical examiner testified that the baby was not constipated and had no stool in her bowels.
At the hospital in Tallahassee, the baby was treated by Dr. Todd Patterson, a very experienced neonatologist and intensive care pediatrician. A CT scan of the baby's head showed multiple areas of hemorrhage and areas with signs of brain death. The baby had retinal hemorrhaging and "tremendous injury" to her head that could not have been caused by a fall from a chair or from being dropped. Keymaya was pronounced dead at 10:55 p.m. the following day. Dr. Patterson later testified that Appellant's description to him of what happened to the baby — that Appellant held her up so that she could have a bowel movement and fed her, and she then vomited and stopped breathing — did not explain the child's severe injuries.
The medical examiner, Dr. Anthony Clark, determined that the cause of death was abusive closed head and neck trauma. An autopsy revealed injuries over the baby's entire body, including multiple bruises on her face, chest, and head; hemorrhages on her head and in her brain, leg, and spinal cord; fractures of her ribs, leg, and arm, caused at various times; swelling and detachment of her brain inside the skull; and internal severance of her neck. Dr. Clark testified that the baby's rib fractures and severe brain injuries resulted from her being squeezed around the chest, from her being grabbed and violently shaken, and from her head being slammed; the doctor said that her injuries could not have been caused by being
Appellant testified at trial. He claimed that before Rainey entered the room, he prepared the baby's bottle while holding her, attempted to feed her, and tried unsuccessfully to relieve her of her constipation by rubbing her stomach and then holding her up and squeezing her. Appellant said that he changed her diaper anyway and attempted to feed her again, at which point she began vomiting, and he cleaned it up. Appellant asserted that the door to the baby's room was open and that Rainey would have noticed if he were hurting the baby, but he also testified contradictorily that he yelled for Rainey when the baby's symptoms appeared yet she could not hear him.
Appellant does not dispute the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder. See
2. Appellant contends that the trial court abused its discretion in overruling his relevancy objection to the prosecutor's line of questioning about his tattoos. We conclude that any such error was harmless.
(a) In an effort to dispute that he had the right-hand strength needed to inflict the injuries the victim suffered in the way the medical examiner said these injuries had occurred, Appellant testified on direct examination that he is naturally right-handed but that his dominant hand is now his left hand because he broke his right wrist playing basketball in 2005 or 2006. Defense counsel asked Appellant if he had any scars showing that his right hand was injured, and Appellant answered, "yes." Defense counsel then received the trial court's permission to have Appellant show his right hand to the jury. Appellant stepped down from the witness stand, approached the jury, and showed them the surgical scars on his right hand. On cross-examination, the prosecutor said, "You showed the Jury your arm. Show me," and Appellant complied. When asked by the prosecutor if he was saying that he could not lift with his right hand, Appellant responded, "I can."
The prosecutor then asked Appellant, "What are those tattoos on your arm?" and defense counsel immediately said, "Objection,
The discussion continued as follows:
The prosecutor then moved on to a different line of questioning.
On redirect examination, defense counsel referred to Appellant's testimony about the tattoos and asked, "What does maintain mean?" Appellant explained:
Defense counsel asked Appellant if he was "maintained" on the night that the victim was taken to the hospital, and Appellant said, "Yes, sir."
There was no further testimony about the tattoos, and the prosecutor never mentioned Appellant's tattoos again during the trial. In his closing argument, however, defense counsel remarked that there was "one tattoo that I think represents [Appellant]. He maintained."
In his motion for new trial, Appellant claimed that the trial court abused its discretion in overruling his objection to the prosecutor's line of questioning about the tattoos. In its order denying the motion, the trial court explained its rationale for allowing the questions:
(b) Appellant's trial took place in February 2014, more than a year after Georgia's new Evidence Code took effect. In the new Code, "relevant evidence" is defined in OCGA § 24-4-401 as "evidence having 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 § 24-4-402 then says:
Decisions regarding relevance are committed to the sound discretion of the trial court. See
(c) Whether Appellant was physically able to inflict the victim's injuries was certainly a relevant issue in this case. Thus, it was appropriate for defense counsel to explore that issue on direct examination of Appellant, and to have him show the jury any physical manifestations, such as scars, supporting his testimony. Likewise, it would have been proper for the prosecutor to ask about this topic on cross-examination, even if it had not already been broached on direct.
The relevance of Appellant's tattoos is far less evident. The State concedes that the tattoos were not relevant to the determination of the perpetrator's identity, as tattoos are in some cases. See
The prosecutor may have had concerns that the jury had seen tattoos on Appellant's hand and arm and that the tattoos could depict words or images — say, a tattoo of the victim's name inside a heart — that might influence the jury even though the tattoos were
But tattoos are often difficult to see clearly and to comprehend, and especially on cross-examination, it may have been within the trial court's broad discretion to allow the prosecutor to ask a few questions to try to establish the relevance of the tattoos, although this also risked eliciting improper evidence and the overruling of the objection should then have been made conditional. See OCGA § 24-1-104 (b). The prosecutor started down this path, simply asking Appellant to explain what was symbolized by the tattoos the jury may have seen. These questions elicited evidence that benefitted Appellant, which he otherwise might not have been able to introduce — that he had Rainey's nickname tattooed on his harm (indicating a close bond with the victim's mother); that he was a Christian; and that he was focused on maintaining self-control.
By that point, however, it should have been clear that this line of questioning would not develop relevant evidence, and the remaining handful of questions that turned to why and where Appellant got tattoos was rather obviously irrelevant (although they did not provoke a renewed objection from defense counsel). Thus, the trial court abused its discretion by allowing at least some of the questioning regarding Appellant's tattoos.
(d) Nevertheless, we are confident that any such error was harmless. The new Evidence Code continues Georgia's existing harmless error doctrine for erroneous evidentiary rulings. See OCGA § 24-1-103 (a) ("Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...."); Paul S. Milich, Ga. Rules of Evidence § 3:8, at p. 78 n.4 (2015-2016 ed.) (explaining that "[t]he first part of subsection (a) of [OCGA § 24-1-103] incorporates the harmless error doctrine and does not purport to change existing Georgia law on what constitutes harmless error" (citation omitted)). See also 21 Kenneth W. Graham, Jr., Federal Practice and Procedure Evidence § 5032 (2d ed. Apr. 2016 update) ("[Federal Rule of Evidence] 103 rejects the old common law rule requiring automatic reversal for any evidentiary error [,] ... limiting reversals to cases where an injustice may have been done...."). "In determining whether an error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so."
The properly admitted evidence proving Appellant's guilt was overwhelming. Several defense witnesses and Appellant himself testified that he was alone with the victim when she started showing symptoms and for some time before then, and the State's witnesses testified that Appellant told them the same thing. No one saw anything wrong with the
Moreover, there is little indication that any evidence about Appellant's tattoos that was improperly admitted caused him prejudice, and indeed aspects of the evidence appear to have aided his defense. Thus, while the prosecutor never mentioned the tattoos again after the disputed testimony, defense counsel had Appellant elaborate on his being "maintained" on the night the victim was injured and then reminded the jury of the tattoo evidence in closing argument, using the testimony that the prosecutor had elicited to reinforce the defense's narrative that Appellant was a responsible person who had been a good father to Rainey's older child and the victim and who lived by the motto that he had tattooed on his right hand.
Considering the trial record as a whole, we conclude that it is highly probable that any erroneous evidentiary ruling by the trial court with regard to Appellant's tattoos did not contribute to the jury's verdict. See
3. Appellant also contends that the trial court abused its discretion in allowing the medical examiner, Dr. Clark, to use a baby doll to demonstrate how some of the victim's injuries appeared to have been inflicted and the amount of force that would have been required to cause the head and neck injuries that he observed when he performed the victim's autopsy. We see no error.
(a) Before Dr. Clark testified, the State advised the trial court that it planned to have him use a baby doll as a demonstrative aid. Defense counsel objected on the grounds that shaking the doll as a demonstration was not supported by the evidence as Appellant never said that he shook the victim, and that the probative value of the demonstration would be substantially outweighed by the risk of unfair prejudice. In addition, defense counsel requested a preview of the demonstration and a ruling on its admissibility before Dr. Clark conducted the demonstration for the jury. See OCGA § 24-4-103 (c).
The trial court agreed to that procedure. With the jury excused, the State showed Dr. Clark the baby doll to be used in the demonstration, which he confirmed was approximately the same size as the victim, within six inches in length and six pounds in weight. Dr. Clark then explained that it would help the jurors understand his expert testimony if they could see him demonstrate how the baby's injuries were caused — the squeezing of her chest causing the rib fractures, the "slamming of the head [indicating what he meant] several times to cause injury," and the gripping of her leg and arm resulting in the injuries there. After cross- and redirect examination, defense counsel renewed his objection, arguing that the demonstration was speculative and highly prejudicial given "the unknowing or unknowable number of times that it's alleged that this child was hit." The trial court ruled "that the doll can be used as a demonstrative tool in [Dr. Clark's] testimony" because it would be helpful as a[n] aid" to the jury in understanding that testimony.
The jury was brought back to the courtroom, and Dr. Clark was qualified as an expert in the field of anatomic and forensic pathology. Dr. Clark then testified about a series of photographs and x-rays from the autopsy, explaining to the jury what the images showed and how the victim's injuries were most likely inflicted. The doctor also explained that demonstrative aids are helpful in cases of infant fatalities to show the mechanism of causing the injuries presented and the force needed to cause the injuries. He then reviewed the injuries that he had found based on the victim's autopsy and medical
(b) As a leading commentator on the new Evidence Code explains, "[e]vidence is sometimes classified as either `real,' `testimonial,' or `demonstrative' evidence." Milich, supra, § 6:1, at p.119. Real evidence is evidence that the court or jury perceives directly through its senses and that "`speaks to them without the intervention of the testimony of witnesses.'" Id. (citation omitted). Its relevance "lies in its direct relationship to the facts or events in question at trial" — e.g., a package of cocaine that was allegedly seized from the accused, or fingerprints or blood samples allegedly taken from a crime scene. Id. (citation omitted). Testimonial evidence, in this taxonomy, refers to "all testimony at trial and all hearsay statements admitted pursuant to an exception"; relevance depends on its logical relationship to the facts in issue at trial, and its probative force is highly dependent on the credibility of its source. Id.
Id. (footnote omitted). Demonstrative evidence includes "charts, models, diagrams, replicas, re-enactments, pictures, or any other device used to aid the trier of fact in understanding the issues and facts at trial." Id. See also id. § 10:1, at pp. 215-221 (discussing demonstrative evidence).
Demonstrative evidence implicates several provisions of the new Evidence Code. It must be relevant, see OCGA § 24-4-401, and it may be excluded if its probative value is substantially outweighed by the 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, see OCGA § 24-4-403. Demonstrations are also subject to the reasonable control of the trial court. See OCGA § 24-6-611.
The Eleventh Circuit has summarized the rules governing the admission of demonstrations (and experiments) as follows:
(c) Although this case was tried under the new Evidence Code, the parties have cited only cases on demonstrative evidence decided under the old Evidence Code. Neither party cites the pertinent provisions of the new Evidence Code, the parallel provisions of the Federal Rules of Evidence, or a single case interpreting the federal or new state rules. As the Court has emphasized, "we are all living in a new evidence world and are required to analyze and apply the new law."
Applying the new law, we see no abuse of discretion in the trial court's admission of the medical expert's demonstration using the baby doll. Dr. Clark testified during the proffer and before the jury that using the baby doll would be helpful in explaining his opinions to the jury and that the doll used was substantially similar to the victim with respect to the characteristics relevant to the points that his testimony covered. Dr. Clark noted that he had used dolls in similar cases because "the baby doll helps show what the mechanism is that resulted in these types of injuries ... [and] also will show what kind of force could be involved in these injuries." He then based the demonstration on information that he had derived from the victim's autopsy and medical records, being careful to qualify his testimony where details were uncertain, such as the exact number of blows the victim's head had suffered.
Considering the record as a whole, the trial court's admission of this demonstrative evidence was not abuse of discretion. See
All the Justices concur.
The Advisory Committee notes on Federal Rule 611 explain that the rule