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Johnson v. State

Court of Appeals of Georgia, Fourth Division

February 19, 2019

JOHNSON
v.
THE STATE.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          DILLARD, CHIEF JUDGE.

         Lillie Johnson appeals her conviction for one count of first-degree cruelty to a child, arguing that the trial court abused its discretion in (1) excluding evidence of child pornography discovered on a State witness's phone; (2) admitting evidence of text messages the State did not properly authenticate; and (3) failing to strike a prospective juror for cause. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that on October 7, 2015, Johnson gave birth to twins B. L. and R. L., whose father was her then fiancé, Kenneth Lynch. The twins were born ten weeks early, and they were immediately admitted to the Neonatal Intensive Care Unit ("NICU"), where they remained for 43 days. When the newborns were discharged from the hospital, their pediatrician met with Johnson and Lynch and told them that B. L. would need follow-up appointments to monitor her weight. On December 9, 2015, during one of those subsequent appointments, the pediatrician determined that B. L. weighed 1, 829 grams, which caused the doctor "significant concern." According to the pediatrician, although babies are expected to grow at a rate of about 15 to 20 grams per day, B. L. weighed more-i.e., 1, 900 grams-when she was discharged from the NICU. Ultimately, the pediatrician diagnosed B. L. with "failure to thrive" and admitted her to the hospital for treatment.

         After a three-day hospital stay, B. L. weighed 2, 060 grams, which was "an incredible amount of weight gain[, ]" and she was permitted to go home. But at her next check-up, B. L. appeared "skinny[, ]" and her doctor could find no discernable medical reason for her failure to gain weight. According to Lynch, medical professionals advised him and Johnson to feed B. L. every two hours, but they did not do so. Indeed, instead of feeding B. L., Lynch and Johnson ignored her, even when she was crying, while they smoked marijuana, which they did "everyday."

         On December 28, 2015, the night before representatives from the Division of Family and Child Services ("DFACS") scheduled a home visit with Johnson and Lynch due to B. L.'s continued weight loss, Lynch found R. L. "gasping for air" and called 911. R. L. was then taken to the hospital for treatment and placed on life support. In fact, R. L.'s injuries were so severe that he remained in the hospital for "quite a while." And during R. L.'s hospital stay, medical staff confronted Johnson and Lynch, claiming that R. L. suffered from injuries that could only be attributed to shaken-baby syndrome. Hospital staff then reported R. L.'s injuries to law enforcement, and on December 30, 2015, Johnson and Lynch were arrested.

         Subsequently, Johnson and Lynch were jointly indicted for three counts of first-degree cruelty to a child and one count of second-degree cruelty to a child. But prior to trial, Lynch entered a negotiated guilty plea with the State and pleaded guilty to one count of first-degree cruelty to a child, which charged him with physically injuring R. L. in various ways.[2] The primary condition of the plea deal was that Lynch agreed to cooperate with the State and testify against Johnson, which he did. Following trial, the jury found Johnson guilty of one count of first-degree cruelty to a child, but acquitted her of the remaining charges. Specifically, Johnson was found guilty of count four of the indictment, which alleged that she willfully failed to provide necessary sustenance to B. L., thereby jeopardizing the child's health and well being. Johnson filed a motion for a new trial, which the trial court summarily denied.[3] This appeal follows.

         1. In her first two claims of error, Johnson challenges the propriety of evidentiary rulings by the trial court. Specifically, she argues that the trial court erred by (1) excluding evidence of child pornography found on Lynch's phone to impeach him during cross-examination, and (2) admitting certain text messages that were not properly authenticated. We disagree.

         Evidentiary rulings are reviewed under an abuse of discretion standard, which is "different from and not as deferential as the clearly erroneous/any evidence standard of review."[4] Nevertheless, we accept the trial court's factual findings unless they are clearly erroneous.[5] With these guiding principles in mind, we turn now to Johnson's specific claims of error.

         (a) Johnson first argues that the trial court erred by excluding evidence of child pornography found on Lynch's phone.

         In a pretrial hearing, Johnson's counsel contended that, during discovery, the State found seven images of child pornography on Lynch's cell phone, and he advised the court of his intent to impeach Lynch with the images if he testified at trial. The State responded that it examined the images and determined that they "are not child sexual abuse images that would likely lead to any type of prosecution against [ ] Lynch or anyone else." The State further indicated that, according to a law- enforcement officer who specializes in retrieving electronic evidence, the images at issue were "imbedded," which means they were "attached to something else[, ]" making it unclear whether they were intentionally downloaded.

         The State further asserted that the images were small and of poor resolution when enlarged, which indicates that the images had not been intentionally collected. Additionally, the images were also in the "cache file[, ]"[6] which also suggests it is unlikely they were specifically saved by anyone. The State found it significant that an investigator, who works on child-exploitation cases, advised that he would not pursue a warrant to arrest Lynch for a child-exploitation offense because, even assuming that the images constituted child pornography, [7] the State would not be able to prove that they were attributable to Lynch. Ultimately, the prosecutor concluded by saying that, "short of the . . . [NCMEC] sending [him] a report indicating that these were known victims of child sexual abuse . . . [, ]" he could not "imagine indicting a case like [this]."[8]

         Instead of responding to the merits of the State's argument or challenging its characterization of the images, Johnson argued that whether or not the State planned to prosecute Lynch "has very little relevance whatsoever in whether or not [the images are] introduced as evidence as far as a bias." Furthermore, Johnson maintained that, under Georgia law, she should be able to cross-examine Lynch on "any potential bias." And as to the specific bias alleged, Johnson contended that Lynch might be motivated to testify as a State's witness to reduce the likelihood of the State prosecuting him for some other crime related to the images. But again, Johnson did not-and does not now-dispute the State's characterization of the images, explanation of the type of electronic files involved, or conclusion that the images are insufficient evidence to charge Lynch with a child-pornography offense. At one point, Lynch's attorney interrupted the discussion and informed the court that the prosecutor never suggested to Lynch that he might be charged with a child-pornography related offense.

         Following a lengthy colloquy between the trial court and the parties regarding the admissibility of the images, the court first acknowledged that Lynch could be questioned "about the plea offer, the plea deal, what was entailed there, all the circumstances of that and how that has affected him and whether he has any bias or whether he is testifying in order to curry favor with the State regarding that plea deal." But as to the sexually explicit images, the court ruled that Johnson was limited to asking Lynch the following questions:

You know you had images shown on a phone seized by police that shows young women, who may be underaged, engaged in sexual activity, don't you? You're testifying this way because you are trying to curry favor with the State. He can say yes or no. The State and the public defender [are] stuck with whatever answer he gives [and, ] . . . can't tender separate evidence to challenge [it].

         During her cross-examination of Lynch, Johnson did indeed ask him these questions, and he answered "no" to both of them.

         As explained by the Supreme Court of Georgia, "[t]he right of cross-examination integral to the Sixth Amendment right of confrontation [9] is not an absolute right that mandates unlimited questioning by the defense."[10] Indeed, the Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."[11] Furthermore,

trial courts retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.[12]

         Additionally, OCGA § 24-4-402 provides that "[e]vidence which is not relevant shall not be admissible." Finally, under OCGA § 24-4-403, even "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

         Turning to Johnson's argument that the trial court erred in limiting her cross-examination of Lynch, she contends that the sole purpose of admitting evidence of the images was to reveal Lynch's bias in favor of testifying for the State in hopes of avoiding being charged with crimes unrelated to the cruelty-to-a-child charges in this case. And Johnson is indeed correct that OCGA § 24-6-608 does not preclude introduction of extrinsic evidence to prove a witness's bias.[13] But here, the trial court did permit Johnson's counsel to question Lynch as to whether he was testifying against her in an attempt to "curry favor with the State" immediately after she asked him about the images. More importantly, the evidence she seeks to admit here does not suggest that Lynch was at risk of being charged with any particular crimes in the future that might have motivated him to testify for the State. Indeed, in a somewhat circular argument, Johnson contends that, while it is irrelevant whether the State has enough evidence to prosecute Lynch for child-pornography offenses, he is nevertheless motivated to curry favor with the State to avoid such a baseless prosecution. This argument is unavailing because the potential bias alleged by Johnson cannot exist if the State does not have enough evidence to indict Lynch for any crimes related to the images.

         Furthermore, as previously noted, Johnson never disputed or objected to the State's description of the images or its assertion that it lacked sufficient evidence to prosecute Lynch for possessing the images. In this regard, the Supreme Court of Georgia has explained, "[a]ttorneys are officers of the court, and their statements in their place, if not objected to, serve the same function as evidence."[14] Additionally, as an officer of the court, "[i]n the absence of an objection, [a prosecutor's] evidentiary proffers to the trial court during a hearing will be treated on appeal as the equivalent of evidence."[15] In fact, an officer of the court may "make a statement in his place which is taken to be prima facie true unless verification of such statement is required by the opposing party at the time the statement is made."[16]

         Given the foregoing, we credit, as prima facie true, the prosecutor's representation that Lynch faces no future risk of criminal prosecution related to the images at issue, and therefore, any evidence related to the images is irrelevant to show the specific bias Johnson has alleged.[17] Under such circumstances, the trial court was authorized to exclude as irrelevant any cross-examination of Lynch related to ...


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