☢ test - Í

Veasey's guilt.” Sanders v. State, 289 Ga. 655, 715 S.E.2d 124 (September 12, 2011). Malice murder convictions affirmed for parents who “were vegans who fed their baby only soy milk and apple juice.” Child died of “extreme malnourishment or starvation.” No ineffective assistance “in failing to object to two instances of expert testimony regarding the cause of death as invading the jury's province and commenting on the ultimate issue. In the first instance, … after a neonatologist was cross-examined with respect to prematurity and low birth weight not being the mother's fault, the prosecutor immediately asked him on redirect examination whether, if ‘[t]he mother doesn't take the child to the doctor after it's born, though, and the child dies, that's the fault of the mother,’ and the witness answered affirmatively. In the second instance, the medical examiner testified that she determined the manner of death to be homicide because she ‘felt that his malnourishment was due to failure to provide sufficient care by his caregivers.’ Neither witness testified that Appellants were guilty of the legal charges against them. In context, these expert witnesses were giving scientific conclusions within their fields of expertise regarding the etiology of the baby's condition based upon a hypothetical or on inferences drawn from medical evidence and, therefore, those conclusions were beyond the ken of the average juror. Lindo v. State, 278 Ga.App. 228, 237(1)(b), 628 S.E.2d 665 (2006); Avila–Nunez v. State, [237 Ga.App. 649, 650– 651(1)(c), 516 S.E.2d 335 (1999)]. ‘Moreover, even if the jury accepted [these] opinion[s], such did not interfere with the jury's duty to decide who [caused] the [victim's death]. [Cit.]’ Avila–Nunez v. State, supra. ‘Accordingly, the failure to object to this testimony was not error.’ Lindo v. State, supra.” Amador v. State, 310 Ga. 280, 713 S.E.2d 423 (June 23, 2011). Aggravated assault and related convictions affirmed; trial court properly allowed pediatrician to testify that injury to child’s pancreas was caused by “significant blunt force trauma to the abdomen. Distinguishing Dunagan v. State , 255 Ga.App. 309, 565 S.E.2d 526 (2002), which held “that it would have been error to admit, over a proper objection, a physician's testimony that it was extremely unlikely that a child's physical injuries could have resulted from anything other than an intentional act of molestation. Id. at 309–310(2), 565 S.E.2d 526. The expert in this case, in contrast, testified that one of [child’s] injuries was caused by blunt force trauma without opining on how such trauma occurred.” See note on Dunagan (May 9, 2002), below. Escoe v. State, 306 Ga.App. 321, 702 S.E.2d 652 (October 5, 2010). Burglary conviction affirmed; trial court properly admitted expert’s opinion testimony “that, based on his experience and training, cobwebs indicated the back door had been opened recently. He also testified that burglars use gloves to avoid leaving fingerprints and place items near the door so they can leave the premises quickly. This testimony does not invade the province of the jury. Ogden v. State, 296 Ga.App. 254, 257(4) (674 S.E.2d 101) (2009).” Nor does detective’s said testimony go to the ultimate issue: “the ultimate issue was not whether the victim interrupted a burglary, but whether Escoe committed a burglary. The expert did not testify that he thought Escoe had committed a burglary, and therefore did not testify as to the ultimate issue.” Hightower v. State, 287 Ga. 586, 698 S.E.2d 312 (July 14, 2010). Defendants’ convictions for malice murder, aggravated assault, and related offenses affirmed; trial court properly allowed State to impeach its own witness with evidence that he had expressed opinion to officers that defendants were involved in the offenses on trial. “Citing OCGA § 24-9-65 Hightower enumerates as error the two instances in which the trial court allowed evidence of Holman's expression of opinion, first through the investigating officer's testimony, and then through Holman's direct testimony; he contends that the expressions of opinion were as to the ultimate issue of Hightower's guilt or innocence, that this invaded the province of the jury, Almond v. State, 274 Ga. 348(2) (553 S.E.2d 803) (2001), and that Holman's expressed opinion was not on a matter beyond the ken of the jury. See Medlock v. State, 263 Ga. 246, 248-249(3) (430 S.E.2d 754) (1993). However, in the limited circumstance of impeachment, a witness's prior inconsistent statement regarding an expression of opinion that would otherwise be inadmissible can be admitted when, as here the trial court promptly gave a limiting instruction that it was admitted solely for the purpose of impeachment. Shropshire v. State, 226 Ga.App. 669 (487 S.E.2d 384) (1997). Testimony reporting the fact that Holman had expressed his opinion regarding the guilt of certain defendants was admitted not for the substance of that opinion, or even to rebut earlier testimony regarding this opinion, but to impeach his testimony that he had not ‘represented’ certain matters regarding the crimes and their investigation. [fn] See Griffin v. Barrett, 185 Ga. 443, 445(3) (195 SE 746) (1938) (Impeachment may include prior ‘expressions of opinion which are inconsistent with the testimony of the witness, and which tend to detract from his testimony.’).” Melton, writing for Carley and Nahmias, dissents, arguing that the witness’s statements of opinion couldn’t be used to impeach his prior testimony as to facts: “In State v. Rocco, 259 Ga. 463 (384 S.E.2d 183) (1989), we clearly took issue with this type of strategy. There, we stated: ‘A party may not question a witness concerning inadmissible matter and then elicit testimony thereafter to be impeached with evidence inadmissible in the case-in-chief.’ Id. at 467(1). That is essentially what happened in this case.”

Made with FlippingBook Ebook Creator