Russell Edwards was convicted of malice murder and other
crimes in connection with the death of his 13-month old
child. Edwards appeals and argues that the trial
court (1) erred in granting the State's challenge to his
use of peremptory strikes against certain jury members, (2)
improperly prohibited him from preserving his claim that
trial counsel was ineffective, and (3) made a merger error at
sentencing. We agree that the trial court made a merger error
and therefore vacate in part and remand for resentencing, but
we otherwise affirm Edwards's convictions.
in the light most favorable to the verdict, the trial
evidence showed as follows. Edwards and Toni Brown had a
child, Mikkah, who was born in December 2010. Mikkah lived
with Brown and her two other children, A.B. and B.B. In
January 2012, Brown, who was working two jobs while also
attending college, called Edwards to watch her children after
her babysitter quit unexpectedly. Edwards agreed and stayed
at Brown's home for a few days to watch the children
while Brown was at work.
January 26, Brown saw Mikkah before she left for work around
10:20 p.m., and he appeared healthy and was behaving
normally. During the night, A.B., who was then 12 years old,
went downstairs to get a drink of water and saw Edwards
holding onto something tied around 13-month-old Mikkah's
neck and swinging the child like a "rag doll." A.B.
said that Edwards swung Mikkah around for 30 to 45 seconds.
When Edwards finally noticed A.B., he sat Mikkah on the
floor. A.B. was concerned and wanted to call his mother but
couldn't because Edwards had the only phone in the house.
Brown returned from work the following morning (January 27),
she checked on her kids. Mikkah was in bed with Edwards and
appeared to be asleep. When Brown kissed Mikkah, she noticed
an abrasion on his forehead. Brown asked Edwards about the
injury, and he responded that Mikkah might have fallen off a
toilet. Edwards took the child out of the room, telling Brown
to rest and reassuring her that Mikkah was fine and just
tired from staying up late. Brown noticed that Mikkah's
head was "wobbly" when Edwards picked him up.
point, A.B. told Brown that he saw Edwards swinging Mikkah
around by his neck the night before. Brown tried to wake
Mikkah, but he was unresponsive and his head was
"flopping around." Brown rushed Mikkah to a
pediatric urgent care facility, accompanied by Edwards and
her two other children. Nurses told Brown that Mikkah was in
respiratory arrest and needed to be airlifted to a
children's hospital. The police were called after A.B.
told urgent care staff about Edwards's actions the
previous night. Edwards told the police that Mikkah had been
sick and throwing up and that Edwards began to play fight
with the child to "get his energy level back up."
being airlifted to the children's hospital, Mikkah was
placed on life support. Doctors told Brown that Mikkah had
severe brain damage, part of his brain stem was gone, and he
would never breathe or eat on his own or speak again. Mikkah
was taken off life support after a few days and died as a
result of his injuries.
medical examiner testified that Mikkah's cause of death
was blunt force head trauma evidenced by retinal hemorrhages,
a swollen brain, subdural hemorrhages, and two skull
fractures caused by at least two forceful impacts to the
child's head. A physician with experience in child abuse
issues who evaluated Mikkah at the children's hospital
testified that the retinal hemorrhages were consistent with
rapid acceleration and deceleration of the head, such as by
significant and forceful head trauma. The doctors also
described the child's other injuries, including a tear to
the child's frenulum likely caused by a very forceful
impact to the mouth; abrasions and bruising on the neck,
back, and chest; and additional hemorrhages in the thoracic
and lumbar regions of the child's spinal cord.
Although Edwards does not challenge the sufficiency of the
evidence, it is our customary practice in murder cases
nevertheless to review the record and determine whether the
evidence was legally sufficient. Having done so, we conclude
that the evidence was sufficient to authorize a rational
trier of fact to find beyond a reasonable doubt that Edwards
was guilty of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979).
Pursuant to Georgia v. McCollum, 505 U.S. 42 (112
S.Ct. 2348, 120 L.Ed.2d 33) (1992), the State challenged
Edwards's peremptory strikes against Jurors 45, 57, 59,
68, 70, and 73. Edwards argues that the trial court erred in
evaluating the State's motion because the court
improperly combined steps two and three of the three-part
McCollum evaluation, which impermissibly shifted the
burden of persuasion. We disagree.
McCollum, the Supreme Court of the United States
held that defendants are prohibited from engaging in
purposeful racial discrimination in the exercise of
peremptory strikes. See Allen v. State, 280 Ga. 678,
680 (2) (b) (631 S.E.2d 699) (2006). When the State raises a
McCollum objection, the trial court must engage in a
three-step process to determine if the defendant's
peremptory challenges were used in a racially discriminatory
The opponent of a peremptory challenge must make a prima
facie showing of racial discrimination; the burden of
production shifts to the proponent of the strike to give a
race-neutral reason for the strike; the trial court then
decides whether the opponent of the strike has proven
Id. (citation omitted). Although the burden of
production shifts to the defendant if the State makes a prima
facie case, the ultimate burden of persuasion as to
discriminatory intent rests with - and never shifts from -
the State. See Purkett v. Elem, 514 U.S. 765, 768
(115 S.Ct. 1769, 131 L.Ed.2d 834) (1995); Chandler v.
State, 266 Ga. 509, 510 (467 S.E.2d 562) (1996).
no merit to Edwards's argument that the court improperly
merged steps two and three of the McCollum inquiry.
After the trial court found that the State made a prima facie
case of racial discrimination, the court asked Edwards to
explain his reasons for the strikes. Following Edwards's
race-neutral reasons, the trial court asked the State for
additional argument, implicitly indicating it was moving to
step three. The State did not challenge Edwards's reasons
for striking Juror 68 but argued that his reasons for
striking the other jurors were pretextual. The trial court
gave Edwards one final opportunity to make an argument,
saying "at this point in time, the burden is on you. You
get the final word." Reading this last statement in
isolation may appear as though the court placed the ultimate
burden of persuasion on Edwards. But we don't read
statements in isolation; we read them in context. See
Brown v. State, 290 Ga. 865, 868 (2) (b) (725 S.E.2d
320) (2012) ("[W]ords often gain meaning from context .
. . ."). In context, the trial court suggested to
Edwards that it was tentatively persuaded by the State's
argument and was giving him one final opportunity to convince
the court to accept his reasons for using his peremptory
strikes. Edwards gave additional arguments before the court
sustained the State's motion as to Jurors 45, 57, 59, 70,
and 73 and denied the motion as to Juror 68. The fact that the
trial court used the term "race neutral" in its
ultimate findings - a term generally used in connection with
the second McCollum step - does not alter our
conclusion that the court properly conducted the
McCollum inquiry in considering Edwards's
peremptory strikes. See Colem ...