2010, Daryl Keon Jones was tried before a jury on charges of
malice murder, felony murder, and cruelty to children in the
first degree in the death of his girlfriend's
17-month-old daughter. The jury acquitted Jones of malice murder
and was unable to reach a verdict on the charges of felony
murder and cruelty to children, resulting in a mistrial on
those counts. When the State retried Jones in 2012, the jury
found him guilty of both felony murder and cruelty to
children in the first degree. Jones now appeals from the
denial of his motion for new trial, arguing that the evidence
was insufficient to sustain his convictions, and asserting
that the trial court erred in denying his plea in bar on
double jeopardy grounds. We disagree and affirm.
Viewed in the light most favorable to the verdict, the
evidence presented at Jones' second trial showed that the
17-month-old victim, B. H., and her mother lived with Jones,
who was the mother's boyfriend, and Jones' three
children from a prior marriage, including his eight-year-old
son, A. J.
April 30, 2009, B. H.'s grandfather went to Jones'
apartment at noon to visit B. H. and stayed for three hours
to play with her. He described her as fully aware and awake
throughout the visit, but noticed small bruises on top of her
head and on her right eyebrow. The grandfather testified that
a month earlier, he had spoken to the mother about the
bruises B. H. "had gotten over some period of time. . .
. [B. H.], especially during the last two months of her life,
had constant bruising."
the grandfather left the apartment at around 3:00 p.m., B. H.
seemed fine. Some time after this, the mother left to attend
a class, and Jones was left alone in the apartment with the
children. That afternoon, A. J. heard crying and noise and
witnessed Jones grab B. H. by the back of the head and hit
her forehead onto the living room floor several times. A. J.
went outside for a while and then to his room. Moments later,
he heard a "big boom, " and when he looked, B. H.
"was on the ground and she wouldn't blink and her
eyes were open." Jones picked B. H. up, checked her
pulse, and began administering CPR. A. J. testified that he
had seen Jones on other occasions choke B. H. and similarly
slam her head onto the floor while telling her to "be
quiet or shut up, " but had not told anyone what he
witnessed because he was afraid.
was taken to the hospital by ambulance, and though still
breathing, was determined to be "very nearly brain
dead." She had multiple facial bruises and retinal
bleeding, and a CT scan revealed her brain was swelling and
covered with blood. The physician who treated her testified
at trial that the bleeding was consistent with cases
involving abuse or "very, very high speed car accidents
where a child has been ejected and rolled, " and that B.
H.'s injuries were not consistent with a fall or with an
underlying medical condition. She concluded that B. H. would
"have had to take multiple, repetitive beatings to the
head" to result in the injuries she sustained. B. H.
died from her injuries when repeated CPR attempts became
forensic pathologist performed an autopsy on B. H. and
observed 36 external injuries and bruises to her head and
face, some of which were old, healing injuries and some of
which were recent, and 58 external injuries to her entire
body. Additionally, the right side of her brain was
flattened. His examination revealed hemorrhages, swelling of
the brain, and a completely transected corpus callosum, which
divides the two halves of the brain. The pathologist agreed
with the treating physician that B. H.'s injuries could
not have been caused by an underlying medical condition or an
ordinary fall, and that the cause of death was multiple blunt
evidence outlined above was sufficient to authorize a
rational jury to find beyond a reasonable doubt that Jones
was guilty of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99
S.Ct. 2781, 61 L.Ed.2d 560) (1979); Walden v. State,
289 Ga. 845, 846 (1) (717 S.E.2d 159) (2011) ("The jury
was free to reject Appellant's version of events, which
it obviously did." (Citations and punctuation omitted.))
Jones asserts that the trial court erred in denying his plea
in bar because double jeopardy prohibited his retrial.
"The allied doctrine of issue preclusion ordinarily bars
relitigation of an issue of fact or law raised and
necessarily resolved by a prior judgment." (Citations
omitted.) Bravo-Fernandez v. United States,
___ U.S. ___ (I) (A) (137 S.Ct. 352, 196 L.Ed.2d 242) (2016).
The United States Supreme Court "first interpreted the
Double Jeopardy Clause to incorporate the principle of issue
preclusion in Ashe v. Swenson, 397 U.S. 436, 90
S.Ct. 1189, 25 L.Ed.2d 469 (1970)." (Footnote and
citations omitted.) Id. at 358 (I) (B). The Court in
Ashe held that the rule of collateral estoppel in
criminal cases is to be applied "with realism and
rationality." Ashe, supra, 397 U.S. at 444.
Thus, rather than merely examining the verdict, to determine
the preclusive effect of an acquittal the court must examine
the record of the prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its
verdict upon an issue other than that which the defendant
seeks to foreclose from consideration.
(Citations and punctuation omitted.) Giddens v.
State, 299 Ga. 109, 114 (2) (a) (786 S.E.2d 659) (2016),
citing Ashe, supra. And "[t]o effectuate this
preclusion, the defendant has the burden of proving from the
record what facts were 'actually and necessarily decided
in his favor.'" (Citation omitted.) Id. at
113 (2) (a).
relevant to our analysis here that, in Yeager v. United
States, 557 U.S. 110 (129 S.Ct. 2360, 174 L.Ed.2d 78)
(2009), the Supreme Court explained that a jury's
inability to reach a verdict "should play no role in
determining the preclusive effect of an
acquittal.[Cits.]" Id. at 117 (I). The Court
[a] hung count is not a "relevant" part of the
"record of [the] prior proceeding." See
Ashe, 397 U.S., at 444, [ ] Because a jury speaks
only through its verdict, its failure to reach a verdict
cannot--by negative implication--yield a piece of information
that helps put together the trial puzzle. A mistried count is
therefore nothing like the other forms of record ...