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Gomez v. State

Supreme Court of Georgia

June 19, 2017


          NAHMIAS, Justice.

         Appellants Margarita Gomez and Alejandro Martinez Huitron challenge their convictions for felony murder and other crimes related to injuries to and the resulting death of their three-year-old daughter, Esmerelda. We vacate three of each Appellant's convictions (Counts 4, 11, and 16) to correct sentencing errors, but we reject Appellants' many other contentions and affirm their remaining convictions.[1]

          The Trial

         1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On May 31, 2010, Gomez and Huitron spent the day at their apartment in Forest Park with their two daughters, Esmerelda and two-year-old Perla. Joseph, Gomez's younger son by another man, did not live with them. Around 8:00 p.m., Esmerelda suffered a severe head injury, resulting in a skull fracture and brain and retinal hemorrhaging. After Appellants called 911, Esmerelda was taken to Hughes Spalding Children's Hospital and later flown to Egleston Hospital, where she died on June 3.

         Gomez and Huitron were interviewed separately several times by officers from the Forest Park Police Department, first on the night of Esmerelda's injuries, again a few days later, and finally on June 10, when they each participated in a re-enactment of how they supposedly found Esmerelda. Each time, a Spanish-speaking police officer or interpreter was used.[2] Initially, Gomez and Huitron both said that when Esmerelda was injured, they were washing dishes or about to start washing dishes together in their kitchen while the two girls were playing in the back bedroom. They heard a scream from one of the girls and ran to the bedroom. In another version given later by Gomez, Huitron was on the back patio grilling and she was in the kitchen when they heard the scream.

         Both parents claimed that they found Esmerelda lying on her back on the floor between a small child's table and one of the two beds in the room.[3]According to Gomez, Esemerelda looked as if she was struggling to speak or get up, but then she fainted. According to Huitron, Esmerelda was unconscious and having trouble breathing, with a small amount of blood on her face. They moved Esmerelda into the living room, and one or both of the parents performed CPR while an ambulance was called. Gomez then carried Esemerelda out to wait for the ambulance. Both parents claimed that they did not see what caused Esmerelda's injuries but hypothesized that she had fallen while jumping on the bed, because she liked to play on the bed. Dr. Jordan Greenbaum, who was the medical director of the Center for Safe and Healthy Children at Children's Healthcare of Atlanta and had been called to consult on Esmerelda's case at Egleston because the treating doctors suspected child abuse, called Gomez on June 2 to get a medical history for Esmerelda. The doctor asked Gomez specifically about a big bruise Esmerelda had on her abdomen, which Gomez attributed to the child hitting herself on furniture. Dr. Greenbaum, who noticed numerous bruises on Esmerelda's belly, also asked Gomez if she could think of any injuries she had seen on Esmerelda's skin and Gomez said she could recall only one bruise; she had not noticed any other bruising.

         The next day, Officer Karen Henry, who was assigned to investigate in Esmerelda's case because she specialized in child abuse cases, interviewed Gomez. Gomez said that she never saw any bruises or marks on Esmerelda, that the only other injury Esmerelda had suffered was eight days earlier when she fell in the bath tub, and that Esmerelda had fallen out of bed while sleeping but had not injured herself. Officer Henry testified, however, that the pictures she saw of Esmerelda showed bruises on the side of her abdomen, from her armpit to her diaper area, that had begun to heal.

         When examining Appellants' apartment about three hours after the 911 call, investigators found clumps of dark hair in the bathroom and outside, one to two feet from the concrete patio.[4] They also found spots of dry blood on the floor in the front bedroom, in the hallway between the bathroom and bedrooms, and on the floor in the back bedroom. The swabbings taken from these spots matched Esmerelda's DNA. Several officers testified that the apartment was very neat, including the kitchen and back bedroom, and the beds looked like they had recently been made; although the comforter on one of the beds looked a little disheveled, that was not the bed next to which the parents said they found Esmerelda.

         At trial, four medical experts testified for the State. Dr. Amita Shroff, who treated Esmerelda at Hughes Spalding and was qualified as an expert in pediatric emergency medicine, testified that Esmerelda had a "Battle's sign" - bruising on the side of her face, behind her ear, and tracking down her neck - which indicates a skull fracture, and fixed and dilated pupils, which indicate brain damage. She also had blood in her ear and on her nose, as well as bruises on her nose, chin, back, and abdomen. The child's abdomen was distended and she had an abrasion on her left flank. The doctor testified that there was no way a fall from a bed could have caused these injuries; they could be caused only by something traumatic like a car accident, falling off a 15 to 20 story building, or having her head slammed onto a hard object like concrete or a bathtub.

         Dr. Rajamani Iyer testified that she was Esmerelda's pediatrician, and at all her visits, including the last visit four weeks before the incident, Esmerelda seemed normal. A year before trial, the prosecutor had shown Dr. Iyer an autopsy photograph of Esmerelda's head, and Dr. Iyer, who was qualified as an expert in pediatric medicine, testified based on that photograph that Esmerelda's injuries were not consistent with a fall from the bed and looked like child abuse. Dr. Iyer also testified that the injuries could have been caused by a chair, concrete, or other hard object.

         Dr. Greenbaum, who was qualified as an expert in forensic pathology and child abuse medicine, also was present at the re-enactment. Dr. Greenbaum testified that Esmerelda had a complex Y-shaped skull fracture and subdural and sub-retinal hemorrhages. She explained that the sub-retinal hemorrhaging was so severe that it could only be caused by a few things, including major head trauma and leukemia (and there was no evidence that Esmerelda had leukemia). Dr. Greenbaum further explained that Esmerelda's injuries involved high acceleration and deceleration forces of the sort seen in a high-speed car accident, a fall from three or more stories, or by a person much bigger than Esmerelda slamming her head on the floor. Dr. Greenbaum also testified that Esmerelda had numerous injuries to her torso and two rib fractures which had begun to heal, meaning they were at least seven to ten days old. Dr. Greenbaum concluded from all of this information that Esmerelda's injuries were caused by abuse.

         The State's final witness was Dr. Lora Darrisaw, the GBI medical examiner who performed Esmerelda's autopsy and who was qualified as an expert in forensic pathology and pediatric forensic pathology. Dr. Darrisaw testified about scattered bruises on the child's body, including a collection on the right side of her body and one on her jaw, which would normally be seen after forceful grabbing of the head; although it was possible, but not likely, that the bruise on Esmerelda's chin was caused by medical intervention, none of the other bruises could have been. She added that Esmerelda's neck had been "impacted, " meaning it had been hyperextended over a curved surface or the corner of a hard object. Dr. Darrisaw, who was also present at the re-enactment by Appellants, examined the chairs in the bedroom and concluded that even though they were metal, they were small, fold-up chairs that could not have caused the injuries. The doctor testified that Esmerelda's injuries could have been caused only by "[h]er head hit[ting] something very, very hard that doesn't move, " so the doctor could not see how Esmerelda could have sustained her injuries by falling on anything in the bedroom; the only surface that seemed consistent with the injuries was the concrete patio outside the apartment. Dr. Darrisaw explained that Esmerelda's neck injuries and the bleeding in her eyes indicated that she was moving fast, which could be caused by her falling from a height greater than her own or someone picking her up and moving her body with a lot of force before she impacted a surface. Dr. Darrisaw also noted that there was a build-up of iron in Esmerelda's brain, indicating that she had suffered an earlier head injury. Dr. Darrisaw ruled the cause of death to be blunt force trauma and concluded that it was non-accidental.

         Several witnesses testified about the relationship between Esmerelda and her parents. An officer who talked to Gomez at the hospital on the night Esmerelda was taken there testified that Gomez cried briefly when she was told that Esmerelda might die. Another officer, who spoke to Gomez later that night, testified that when he told her that Esmerelda might die, she said she believed that Esmerelda would be okay, but she started crying when he told her that she would not be able to take her other daughter, Perla, home.

         Joanna Duarte, one of Gomez's friends, testified that Gomez had said Esmerelda was the "product of a rape" and that Gomez sent the child to Mexico when she was 10 or 11 months old. Around November 2009, when Esmerelda was about three, Gomez asked Duarte to go get her and bring her back. Esmerelda had lice when she returned, and when Duarte gave Esmerelda to Gomez, she offered to get Gomez a prescription for lice shampoo. Instead, Gomez shaved off all of Esmerelda's hair to prevent the lice from spreading to Perla. Duarte testified that Gomez always showed Perla more affection, saying that Perla was prettier because she looked like Huitron and calling Esmerelda ugly. Duarte also observed that Esmerelda did not seem very attached to her mother and whenever Esmerelda saw Duarte, she would say she wanted to go with Duarte. Ana Maldonado, who sometimes cared for the children, testified to the child having a similarly strained relationship with Huitron, who worked in Columbus, Georgia during the week. On one occasion, Maldonado dropped Esmerelda off with him, and when he grabbed her, Esmerelda reacted in a way that indicated she did not want to be left with him.

         A caseworker with the Babies Can't Wait program of the Georgia Department of Health testified that when she came to do an evaluation of Gomez's son, Joseph, in November 2009, Joseph and Esmerelda looked malnourished, and Esmerelda was dressed in torn clothes and looked small for her age and frightened. This prompted the caseworker to make a referral for Esmerelda, as well as Joseph, to receive services from Babies Can't Wait, but when the caseworker tried to follow up with Gomez, her contact numbers had been disconnected and she had moved.

         The caseworker was later able to track down Joseph, discovering that he was living with Maldonado and looked healthy and happy. Testimony showed that Gomez gave Joseph, who was born around July 2009 and was not Huitron's son, to her friend Duarte's sister around October 2009. The sister cared for Joseph for about five months, during which time Gomez did not visit or provide any money for her child. The sister eventually returned Joseph to Gomez because she had four kids of her own and was having money problems. On March 8, 2010, Gomez gave Joseph to Maldonado, and Gomez signed a notarized agreement that she would leave Joseph in Maldonado's custody permanently. Gomez told Maldonado that Joseph was sick and she could not take care of him.[5] Maldonado also understood that Huitron did not want Joseph in his home.[6]

         Gomez and Huitron did not testify at trial or call any witnesses. The defense theory for both Appellants was that Esmerelda had been injured in an accident. The jury rejected that theory and found the Appellants guilty of felony murder and other charges. See footnote 1 above.

         The Motions for New Trial

         2. After their convictions, Gomez and Huitron filed motions for new trial. Over the course of the two hearings on the motions, each Appellant presented a medical expert. Huitron called Dr. Brian Frist, a retired medical examiner from Cobb County, who was qualified by the trial court as an expert in medical examination and anatomic and clinical pathology, but not in forensic pathology because he was not board certified in that area. Dr. Frist acknowledged that Esmerelda's injuries could have been inflicted intentionally, but claimed that there was no way to determine whether they were caused intentionally or accidentally. He disagreed with the State's experts who had testified that the injuries required a fall from at least two stories and said the injuries could have been caused by Esmerelda's falling from about two feet and hitting her head on one of the objects in the room, such as the chairs (although he admitted that was unlikely), the bedframe, or the table (assuming it was hard). Dr. Frist also said that he did not think the injuries were caused by Esmerelda's head striking the patio because that would have caused an indentation in her skull that he did not see.

         Gomez called Dr. Adel Shaker, a medical examiner for a Texas county who formerly worked for a county in Mississippi. The trial court qualified Dr. Shaker as an expert in anatomic, clinical, and forensic pathology. He, too, acknowledged that he could not exclude intentional blunt force trauma as the cause of the injuries, but he also disagreed with Dr. Darrisaw's conclusion that Esmerelda's injuries likely resulted from hitting her head on the concrete patio, because he did not see any fracture or dislocation of neck vertebrae and there was no blood on the patio. Dr. Shaker testified that jumping on the bed and falling on a metal chair could have caused Esmerelda's body to spin and her neck to overextend, resulting in the hemorrhaging that she had. Like Dr. Frist, he disagreed with the State's experts who had testified that a fall from two to 15 stories was required, and he asserted that if a child jumped to five feet in height and hit her head on the floor or a hard object, that could have caused the injuries. Dr. Shaker also claimed that Esmerelda's injuries could have been caused by a seizure.

         Dr. Shaker was cross-examined about a Tennessee case in which he testified for the defense. Like Esmerelda, the child victim in that case suffered retinal hemorrhaging and swelling of the brain. Dr. Shaker testified that those injuries were caused by tuberous sclerosis. An expert on tuberous sclerosis, however, testified that the child's injuries looked nothing like tubers, and Dr. Shaker's former supervisor in Mississippi traveled to Tennessee to testify contrary to Dr. Shaker without taking payment because he was "appalled" by Dr. Shaker's testimony.[7]

         Huitron's and Gomez's trial lawyers, who were both experienced criminal defense attorneys, also testified during the hearings. They each said that their main defense strategy at trial was to argue that the cause of Esmerelda's injuries was an accident, and, to some extent, to try to deflect blame onto their client's co-defendant. They also explained that they conducted limited investigations into whether they could find an expert to usefully support the accident theory. Gomez's counsel interviewed Dr. Darrisaw about the injuries, consulted with a biomechanics mathematician at Georgia State University, and educated himself by reading books on the subject. After doing so, counsel "did not think that the numbers were going to break [his] way." He was concerned that any expert witness's testimony would be more helpful to the State than to his client and would prevent him from pursuing an accident defense. Similarly, Huitron's counsel spoke with a medical school instructor from the University of Georgia, who said that it "didn't sound likely" that Esmerelda's injuries were caused by a fall from a bed and referred counsel to a study on skull injuries, which counsel read. Counsel's research into the subject led him to conclude that Appellants' story was "extremely unlikely."

         The trial court denied the motions for new trial, and these appeals followed.

         Sufficiency of the Evidence

         3. Appellants both argue that the evidence was legally insufficient to support their convictions under Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), and that the evidence was circumstantial and did not "exclude every other reasonable hypothesis save that of the guilt of the accused" as required by former OCGA § 24-4-6.[8] When viewed in the light most favorable to the verdicts, the extremity of Esmerelda's injuries on May 31, 2010, which the State's multiple experts testified were not consistent with Appellants' not-quite-matching accounts of the injuries as an accident; the fact that Appellants, Esmerelda's parents, were the only adults in the apartment when the child was injured; and the evidence of Esmerelda's prior injuries, sufficiently supported the jury's findings of guilt beyond a reasonable doubt on the charges related to her injuries on May 31 and her resulting death three days later. See Jackson, 443 U.S. at 319; Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)). See also OCGA § 16-2-20 (defining parties to a crime); Johnson v. State, 269 Ga. 632, 634 (501 S.E.2d 815) (1998) ("A participant to a crime may be convicted for the crime although he or she is not the person who directly commits the crime."); Thomas v. State, 262 Ga.App. 492, 493-494 (589 S.E.2d 243) (2003). The jury also was authorized to reject as unreasonable Appellants' hypothesis that Esmerelda injured herself in an accident. See Jones v. State, 299 Ga. 377, 379-380 (788 S.E.2d 477) (2016).

         Gomez also challenges her conviction for second degree cruelty to children for fracturing Esmerelda's ribs between December 24, 2009 and May 31, 2010. The offense of cruelty to children in the second degree is committed when a person "with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain." OCGA § 16-5-70 (c). The evidence showed that from November 2009 until Esmerelda's fatal injuries, the child lived with Gomez and Huitron. Although Huitron worked outside the home, there was no evidence that Gomez did or that Esmerelda was routinely cared for by anyone else. And the evidence was clear that Gomez and Huitron were the only adults with Esmerelda when she suffered the fatal injuries to her head, supporting the inference that the rib fractures were part of a pattern of ongoing abuse by, at least in part, Gomez, which culminated in the child's death.

         Furthermore, when Gomez was asked by Dr. Greenbaum about a large bruise on Esmerelda's abdomen, Gomez said she hit herself on furniture, and Gomez claimed to recall seeing only one bruise. When Officer Henry interviewed Gomez three days after Esmerelda's fatal injuries, Gomez again said she had not seen any bruises or marks on the child, but she said that Esmerelda fell in the bath tub eight days earlier. Both of these accounts are inconsistent with the evidence that Esmerelda had bruises along the side of her abdomen that showed signs of healing. Finally, after describing all of the injuries Esmerelda suffered, including the numerous bruises and the rib fractures, Dr. Greenbaum opined that the child's injuries were caused by physical abuse.

         Although the evidence on this count is thinner - which may explain why the jury convicted Gomez of the lesser included offense of second degree child cruelty and acquitted Huitron - the sum of the evidence, when properly viewed in the light most favorable to the verdict, was legally sufficient. See Jackson, 443 U.S. at 319. See also Hendrick v. State, 257 Ga. 17, 17 (354 S.E.2d 433) (1987) (holding that evidence that the child victim's extensive injuries occurred over time, which did not match the defendant stepmother's story that they resulted from a fall from the bed, and her lack of concern for previous injuries to the child was sufficient to support her conviction for malice murder); Thompson v. State, 262 Ga.App. 17, 17-18 (585 S.E.2d 125) (2003) (holding that evidence that the child victim's injuries had happened over a period of months and the parents had not sought medical attention, were evasive when questioned about the injuries, and could not explain how the injuries occurred or name anyone who caused them was sufficient to convict the parents of child cruelty).[9]

         Sentencing Errors

         4. In wading through the multitude of charges brought by the State based on what the evidence indicated was a single deadly act by Appellants, the trial court made a few errors in entering convictions and imposing sentences. For the reasons discussed below, we correct those errors by vacating both Appellants' convictions and sentences for felony murder based on the deprivation of a minor (Count 4), aggravated assault with hands (Count 11), and second degree cruelty to children (Count 16).

         (a) As charged in Count 4 of the indictment, Appellants were convicted of felony murder based on contributing to the deprivation of Esmerelda "by failing to provide for [her] protection . . ., which caused [her] to be deprived and resulted in her death." Contributing to the deprivation of a minor is a felony when the offense "result[s] in the serious injury or death of a child." OCGA § 16-12-1 (d.1).[10] As the State now correctly concedes based on our recent decision in Williams v. State, 299 Ga. 632 (791 S.E.2d 55) (2016), "the felony deprivation statute cannot be used as a predicate offense for felony murder." Id. at 634. Accordingly, we vacate Appellants' convictions for felony murder based on contributing to the deprivation of Esmerelda.[11]

         The State argues that because this felony murder conviction must be vacated, the underlying count of contributing to the deprivation of Esmerelda resulting in her death (Count 7) should "unmerge" and a conviction and sentence should be imposed on that count. We do not agree. This Court has repeatedly held that only one conviction and sentence may be imposed for the killing of a single victim. See, e.g., Hendrix v. State, 298 Ga. 60, 66-67 (779 S.E.2d 322) (2015) ("[B]ecause there was but a single victim, [the defendant] cannot be convicted and sentenced on both [the malice murder and felony murder] counts[.]"); Noel v. State, 297 Ga. 698, 700 (777 S.E.2d 449) (2015) ("[A] defendant found guilty of the felony murder of the same victim through the commission of more than one felony may only be sentenced on one felony murder charge[.]"); Lawson v. State, 280 Ga. 881, 883 (635 S.E.2d 134) (2006) ("Because there is only one murder victim, 'to convict and sentence [the defendant] for both voluntary manslaughter and felony murder [based on possession of a firearm by a convicted felon] would improperly subject [him] to multiple convictions and punishments for one crime.'" (citation omitted)); Diamond v. State, 267 Ga. 249, 251 (477 S.E.2d 562) (1996) (explaining that the vehicular homicide count was correctly treated as surplusage to the felony murder based on burglary conviction because the defendant "can be convicted ...

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