Murder. Fulton Superior Court. Before Judge Adams.
Sheueli C. Wang, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E. Gallow, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine L. Iannuzzi, Assistant Attorney General, for appellee.
HUNSTEIN, Justice. All the Justices concur.
A Fulton County jury convicted Appellant Marco Cordero of felony murder and other serious crimes stemming from events on and between January 16-18, 2008, which resulted in the death of four-year-old Mark Mendez. For assaults on the victim that occurred on and between September 1 to December 31, 2007, the jury convicted Appellant of cruelty to children in the first degree. Appellant
appeals, [296 Ga. 704] contending that his trial counsel was constitutionally ineffective and that the trial court erred in sentencing him on the verdict of cruelty to children that was based on the events occurring on or between September 1 to December 31, 2007. For the reasons that follow, we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Appellant lived with his wife, Sabina Mendez, their three young children, including the victim, and a family friend, Milton Garcia, in an apartment in the basement of a hotel. The owner of the hotel permitted them to live there in exchange for Appellant doing some work for him. According to Mendez's testimony, Appellant caused all of the victim's injuries, and the victim did not inflict any injuries upon himself. Mendez testified that, by August 2007, the victim began rubbing his feces on the walls, and Appellant began to regularly and badly beat the victim as a result. On November 26, 2007, Appellant saw that the victim had dirtied the bathroom; he then bathed him in ice water (which he continued to do regularly) and severely beat him, hitting him with a screwdriver, using both ends, and a plunger. According to Mendez, the beating caused the victim's head to swell and left scratches on him. During the beating, Mendez tried to intervene, but Appellant pushed her away. On other occasions, Appellant used knives and machetes to inflict injuries on the victim, and one day beat the victim with a broom until the handle broke off, at which point Appellant forced the handle into the victim's [296 Ga. 705] mouth until he " broke his mouth." During the night of December 29, 2007, Mendez heard the victim crying and yelling. She found Appellant in the bathroom, hitting the victim all over his body with a plunger, a wet towel, and a piece of wood. The next day, Appellant, who said he had tired of beating the victim, rubbed a habanero chili all over the victim's body, including his genitals and buttocks, and stuffed the chili in the victim's rectum.
On January 16, 2008, the victim began yelling, and Appellant tied the victim upside down by his feet from the shower door. Appellant left, and Mendez untied the victim. After she did so, the victim defecated and began spreading it around. Appellant returned, beat the victim with a piece of wood and belts, and tied him up with some wire. Mendez testified that Appellant said that he was beating the victim in order " for the devil to come out." On that same occasion, Appellant punched and kicked the victim, which caused his nose and eyes to bleed. Appellant then left for work, leaving the victim tied up with wire.
On January 17, 2008, the victim was vomiting and told his mother that his stomach hurt. Mendez asked Appellant to take the victim to the hospital, but Appellant refused. That evening, Appellant forced the victim to
sleep in the shower without a blanket or pillow. On January 18, 2008, Mendez found the victim in the shower with a fever, looking extremely ill, and vomiting. She told Appellant that the victim was not well and vomiting, and Appellant told her that the victim should " eat his vomit back." Appellant then left to do some work for the hotel owner. Later that morning, Appellant called her husband and told him that the victim was " really sick." Appellant said that he did not want to spend money to take the child to the hospital and that the child needed a healer because he was possessed. Shortly thereafter, Appellant arrived home and continued to refuse to take the victim to the doctor. Mendez ran to the hotel owner and asked him to come to the apartment. Once Appellant's boss saw the victim, he told Appellant that the victim needed to go to the hospital.
Appellant took the victim to Piedmont Hospital, arriving at 12:44 p.m., gave the child to a charge nurse, and claimed that the child had fallen in the bathtub the night before. The nurse testified that the victim was not breathing, was non-responsive, and had no pulse when he arrived at the emergency room. The nurse also observed that the victim's injuries were not consistent with a fall and that the victim was blue and covered in vomit and bruises. The nurse believed that [296 Ga. 706] the victim's condition was the worst she had ever seen in her thirty years of experience as an emergency room nurse. Medical personnel attempted to resuscitate the victim, but he never regained consciousness and was pronounced dead six minutes after arriving. The hospital took photographs of the victim's injuries and notified police.
A Spanish-speaking police officer waited with Appellant at the hospital and noticed that Appellant was extremely nervous. On multiple occasions, Appellant told the officer that the victim was possessed by the devil and had hurt himself by running into walls repeatedly. Appellant also kept asking the officer if he was going to jail. Detectives later interviewed Appellant, who said that the child had fallen in the bathtub and hit his head. He later admitted that he had also punched the victim in the stomach a few days earlier and said that he " felt that his wife didn't have anything to do with this." He also told detectives that the victim was possessed, said and did " crazy things," scratched himself, defecated on himself, hit himself with whatever objects he could find, hit his head on the toilet, ran into sharp corners to injure himself, said that he wanted to have sex with his mother, and told Appellant that he would " not rest" until Appellant went to jail. According to Appellant, he was the only one who disciplined the victim, who was " mommy's little boy" and was protected by Mendez. He admitted that he sometimes " got a little heavy handed" when he disciplined the victim, and in response to the statement, " ...