309 Ga. 785 FINAL COPY
S20A0934. SNIPES v. THE STATE.
MCMILLIAN, Justice.
Chiquita Snipes was convicted of the malice murder of
Ty’Qwan Edge, a two-year-old child in her care.1 She appeals from
1 Ty’Qwan succumbed to his injuries on May 22, 2010. On October 18,
2010, a Pike County grand jury indicted Snipes and Kenisha Neal for malice murder (Count 1), three counts of felony murder (Counts 2-4), aggravated assault (Count 5), aggravated battery (Count 6), first-degree cruelty to children (Count 7), and second-degree cruelty to children (Count 8). Snipes demurred to Counts 3, 6, and 8, which the trial court granted on September 20, 2012. The State subsequently recast the indictment with the remaining charges: malice murder (Count 1), two counts of felony murder (Counts 2-3), aggravated assault (Count 4), and first-degree cruelty to children (Count 5). Neal pleaded guilty to felony murder before trial in exchange for a life sentence with the possibility of parole and agreed to testify for the State. At a trial conducted from April 15 to 19, 2013, the jury found Snipes guilty of all counts. The trial court sentenced Snipes to serve life in prison without the possibility of parole for malice murder. The trial court purported to merge all remaining counts, but the felony murder counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-72 (4) (434 SE2d 479) (1993). Although the first-degree cruelty to children count should not have merged into the malice murder court, see Vasquez v. State, 306 Ga. 216, 234-35 (4) (830 SE2d 143) (2019), the State has not challenged this merger error on appeal, and we decline to address it. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017). Snipes filed a timely motion for new trial, which was later amended by appellate counsel five times between October 2016 and October 2018. Following a hearing in January 2019, the trial court denied the motion on December 9, 2019. Snipes timely filed a notice of appeal, and the case was docketed to the April 2020 term of this Court and submitted for a decision on the briefs. the denial of her motion for new trial, challenging the sufficiency of
the evidence, the trial court’s jury charge, and trial counsel’s
performance on several grounds. For the reasons that follow, we
affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial showed that in April 2010, Snipes was
living with her co-defendant, Kenisha Neal, along with Neal’s nine-
year-old niece, T. W., and Neal’s bedridden mother, when Ty’Qwan,
Neal’s two-year-old godson, came to stay with them. On May 22, an
officer responded to a call for an unresponsive child and found
Snipes performing CPR on Ty’Qwan, who was wearing nothing but
a tee shirt. The officer observed several marks on the child, some
that were in the process of healing and others that appeared to be
fresh or “red meat” marks. He also saw what appeared to be a fairly
large cut on the child’s penis. Neal was standing nearby, watching;
nobody appeared upset. Neal stated that the child, whom they were
trying to potty train, had woken up around 5:00 a.m. After she took
him to the bathroom, she brought him back to bed with her, and when she tried to wake him at 7:00 a.m., he was unresponsive. She
first called the child’s mother, and when the mother arrived and
could not wake him, they called 911. Snipes had been sleeping in a
separate bedroom further back in the house.
Snipes told officers that she, Neal, and Ty’Qwan had gone to
bed around midnight. Around 4:00 a.m., she heard “a loud bump,”
and upon investigation, she saw Neal in the bathroom with the
child. Neal told her that Ty’Qwan had fallen off the toilet and struck
his head on the bathtub. Snipes applied ice to his head for ten to
fifteen minutes. When they asked Ty’Qwan if he was okay, he
nodded yes, and they all went to sleep in the back bedroom. Snipes
woke again at 5:15 a.m. and saw that Ty’Qwan was breathing. When
she woke at 7:00 a.m., she found Neal and Ty’Qwan in the living
room, and Neal told her that she could not wake him. When Snipes
tried to rouse him, his body was cold.
In searching the bathroom, officers found two spots that were
later confirmed to be Ty’Qwan’s blood. The medical examiner
testified that the victim, who was dehydrated and slightly undernourished, had numerous injuries in various states of healing
all over his body and bruises over most of his face. The head injuries
appeared more recent, many within eight hours of his death,
including a large area of extensive bruising on the left side of his
face. She testified that the injury to his ear was very significant
because it is difficult to accidentally injure the ear. She noted
scratches and tearing to his lips and mouth area, a tongue contusion,
and a bruise on his neck indicating pressure under the chin, along
with fingernail-type scratches. A deeper abrasion on his right
forearm was consistent with his either having been hit with a hot
object or a very forceful impact with an object. His right arm and
right leg had wounds consistent with bite marks. His buttocks
showed injuries consistent with being spanked with an object hard
enough to scrape the skin. There were two injuries to his penis; the
more serious injury split the skin open and was consistent with a
ligature-type injury. The internal examination revealed ten areas of
hemorrhaging under the scalp, some older and some recent. His
brain was significantly swollen with minor areas of bleeding on the surface and other denser areas of bleeding and blood clots. There
was also hemorrhaging in and around the optic nerves of both eyes,
indicating severe trauma to the head.
The medical examiner opined that the injuries were not
consistent with a single fall in a bathroom and that there was no
indication of natural disease. The medical examiner concluded that
the victim’s acute and chronic injuries, particularly the swelling,
bleeding, and nerve damage in the brain, along with dehydration,
combined to cause his death. A forensic odontologist testified that at
least two of the three bite-like injuries were caused by a forceful
human bite, resulting in a crushing type injury. She was unable to
exclude either Neal or Snipes as having caused the bite injuries.
Neal testified that on the day before his death, Snipes was
alone with Ty’Qwan most of the day. Because Neal was frequently
out of the house, Snipes was the main disciplinarian. Neal claimed
that she had only spanked Ty’Qwan once and that she preferred
using time-outs. However, she had witnessed Snipes hold Ty’Qwan
upside down by his ankle and hit him hard multiple times with a belt and a brush. Snipes once hit him with a brush so hard that it
caused the brush to break. When Ty’Qwan had an accident while
potty training, Snipes put hot water from a coffee pot on a rag and
put it on his penis. Another time, Snipes forced Ty’Qwan to stand
naked over a vent all night after he had an accident. Sometime after
his death, Snipes told Neal for the first time that Ty’Qwan had
accidentally fallen in the kitchen and hit his head on the
refrigerator.
T. W., Neal’s niece, testified that she saw Snipes spank
Ty’Qwan daily and that Snipes would hold him upside down and use
various objects as well as her hand to spank him. At least twice,
Snipes caused Ty’Qwan’s head to hit the wall “hard” as she spanked
him. T. W. also saw Snipes force Ty’Qwan to stand in one place for
hours at a time. When she witnessed Snipes and Neal put a rag with
hot water on Ty’Qwan’s penis, she felt sorry for Ty’Qwan because he
screamed and cried for a long time.
At trial, the State also played a recording of Snipes’s interview
with law enforcement, in which Snipes admitted biting Ty’Qwan, pinching him, hitting him in the face, holding him upside down and
accidentally causing his head to hit a doorknob, spanking him with
a belt and brush, and putting water on his penis that may have
caused an injury during the days leading up to his death.
1. Snipes asserts that this evidence was insufficient to support
her convictions for malice murder and felony murder.2 When
evaluating the sufficiency of evidence under the Fourteenth
Amendment to the United States Constitution, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979) (emphasis omitted). “Under this review, we
must put aside any questions about conflicting evidence, the
credibility of witnesses, or the weight of the evidence, leaving the
2 Because Snipes was only sentenced on the malice murder count, her
claims as to the sufficiency of the evidence supporting any other merged or vacated counts are moot. We thus limit our review to the sufficiency of the evidence presented at trial regarding the malice murder count. See Mills v. State, 287 Ga. 828, 830 (2) (700 SE2d 544) (2010). resolution of such things to the discretion of the trier of fact.” Mims
v. State, 304 Ga. 851, 853 (1) (a) (823 SE2d 325) (2019) (citation and
punctuation omitted).
Snipes argues that, whatever may have occurred on the night
of May 22, 2010, the only person with Ty’Qwan at that time was
Neal, whose statements against Snipes lack credibility. Thus, only
Neal could be responsible for Ty’Qwan’s death. This argument,
however, grossly mischaracterizes the evidence presented at trial.
The State’s medical examiner testified that Ty’Qwan’s death was
caused by the cumulative effect of his injuries, both acute and
chronic, and not by any single injury on the night of his death. In
addition to the specific acts of abuse that Snipes admitted, both Neal
and T. W. testified that they had witnessed Snipes’s ongoing abuse
of Ty’Qwan, which included causing his head to hit the wall “hard”
on two occasions. “[I]t was for the jury to determine the credibility
of the witnesses and to resolve any conflicts or inconsistencies in the
evidence.” Bamberg v. State, 308 Ga. 340, 343 (1) (a) (839 SE2d 640)
(2020) (citation and punctuation omitted). Also, even if Neal caused the most immediate injuries to Ty’Qwan, the trial court instructed
the jury that Snipes could be convicted as a party to the crime of
malice murder, which the evidence supported. See OCGA § 16-2-20
(defining a party to a crime); Debelbot v. State, 305 Ga. 534, 538 (1)
(826 SE2d 129) (2019) (although the evidence was entirely
circumstantial as to who committed the crimes, it was legally
sufficient to support both the mother and father’s convictions for the
malice murder of their infant). We thus conclude that the evidence
presented at trial was sufficient to authorize a rational jury to find
Snipes guilty beyond a reasonable doubt of malice murder. See
Walker v. State, 308 Ga. 33, 35-36 (1) (838 SE2d 792) (2020)
(evidence sufficient to sustain conviction for malice murder where
the child sustained numerous injuries in days leading up to her
death while living with defendant, the child’s injuries were not
consistent with the defendant’s explanations, and the defendant
made an incriminating statement).
2. Snipes asserts that the trial court erred by failing to charge
the jury on felony involuntary manslaughter as a lesser-included offense of the murder counts. We disagree. Prior to trial, Snipes
requested a jury instruction on the lesser-included offense of felony
involuntary manslaughter predicated on simple battery. On two
separate occasions during the trial, the trial court provided written
copies of the proposed jury instructions to counsel. During the
subsequent charge conference, Snipes made no objection to the trial
court’s proposed instructions, which did not include her requested
charge. Accordingly, we review this claim only for plain error. See
Jackson v. State, 305 Ga. 614, 618 (2) (825 SE2d 188) (2019).
To show plain error, [Snipes] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected [her] substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
Lyons v. State, __ Ga. __, __ (2) (843 SE2d 825) (2020) (citation and
Each of Snipes’s trial counsel testified at the motion for new
trial hearing that they originally sought an instruction on
involuntary manslaughter based on the possibility that Snipes’s acts of discipline contributed to Ty’Qwan’s death.3 However, Snipes’s
defense at trial was that any discipline she imposed in loco parentis
did not cause Ty’Qwan’s death and that Neal, who was “an
aggressive person with a propensity to anger,” alone inflicted his
fatal injuries while Snipes was sleeping. If the jury believed Snipes’s
theory at trial, Snipes could not have been convicted of either malice
murder or involuntary manslaughter. In any event, because the jury
found Snipes guilty of malice murder, it necessarily found that she
intended to kill Ty’Qwan, and it is highly probable that any error in
refusing the requested charge did not contribute to the jury’s verdict.
Accordingly, pretermitting whether Snipes affirmatively waived
this issue and whether the trial court erred in failing to instruct the
jury on involuntary manslaughter, we conclude that Snipes has not
shown plain error.4 See Bonman v. State, 298 Ga. 839, 840-41 (2)
3 OCGA § 16-5-3 (a) provides that “[a] person commits the offense of
involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. . . .” 4 Any claims of error Snipes raises as to jury instructions related to the
counts of felony murder, aggravated assault, and cruelty to children in the first (785 SE2d 288) (2016) (trial court’s refusal to charge involuntary
manslaughter as a lesser included offense was harmless error where
the jury, by finding the defendant guilty of malice murder,
necessarily found that he intended to kill the victim); Rogers v. State,
289 Ga. 675, 678 (2) (715 SE2d 68) (2011) (by finding the defendant
guilty of malice murder, the jury made an additional, specific finding
that he intended the victim’s killing and it is highly probable that
the trial court’s refusal to give a charge on involuntary
manslaughter did not contribute to the verdict).
3. Snipes alleges that she was denied constitutionally effective
assistance of counsel in several respects. To succeed on this claim,
she must demonstrate both that her trial counsel performed
deficiently and that, absent that deficient performance, a reasonable
probability exists that the outcome at trial would have been
different. See Strickland v. Washington, 466 U.S. 668, 687-95 (III)
(104 SCt 2052, 80 LE2d 674) (1984). If she fails to satisfy either part
degree are moot, as each of those counts merged into the malice murder count. See Walker, 308 Ga. at 36 (2) n.3. of the Strickland test, we need not consider the other. See Hawkins
v. State, 306 Ga. 809, 812 (2) (833 SE2d 522) (2019). To prove
deficient performance, a defendant must show that trial counsel
performed at trial “in an objectively unreasonable way, considering
all of the circumstances and in light of prevailing professional
norms.” Shaw v. State, 307 Ga. 233, 249 (6) (835 SE2d 279)
(2019) (citation and punctuation omitted). “[S]atisfaction of this test
is a difficult endeavor. Simply because a defendant has shown that
his trial counsel performed deficiently does not lead to an automatic
conclusion that he was prejudiced by counsel’s deficient
performance.” Davis v. State, 306 Ga. 140, 144 (3) (829 SE2d 321)
(2019). With these principles in mind, we address each of Snipes’s
claims in turn.
(a) Snipes first argues that trial counsel performed deficiently
for not objecting when the trial court failed to instruct the jury on
involuntary manslaughter as a lesser-included offense.5 However, as
5 Although Snipes also challenges trial counsel’s failure to object to the
trial court’s omission of charges on simple battery and battery as lesser- we explained in Division 2, a jury instruction on involuntary
manslaughter would have contradicted Snipes’s defense that she
had no involvement in the specific acts that caused Ty’Qwan’s death.
“Trial counsel’s decision about which defense to present is a matter
of trial strategy, and counsel’s decision to pursue this defense in this
case was not objectively unreasonable.” Floyd v. State, 307 Ga. 789,
802 (4) (b) (837 SE2d 790) (2020) (because a request for instructions
on voluntary manslaughter would have been contrary to reasonable
defense strategy employed by trial counsel, appellant failed to show
counsel’s performance was deficient). Accordingly, this claim of
ineffective assistance fails.
(b) Snipes next argues that trial counsel failed to object, move
to exclude, move to strike, or seek curative instructions as to certain
portions of Neal’s testimony that she alleges interjected her
character into evidence.
(i) After Neal testified that she had seen Snipes holding
included offenses of aggravated assault and cruelty to children in the first degree, these arguments are moot because those counts merged at sentencing. See Walker, 308 Ga. at 36 (2) n.3. Ty’Qwan upside down and “whupping him” with a brush, the
prosecutor asked whether Snipes appeared to have lost her temper.
After Neal testified that Snipes looked like she had lost her temper
and that it looked like Snipes had a lot of anger in her, the
prosecutor asked, “What type of person is [Snipes]? Does she have a
lot of anger in her?” Neal responded, “Yes, sir.”
We first note that Neal’s initial response that Snipes appeared
to be hitting Ty’Qwan out of anger or because she lost her temper
was relevant to the determination of whether Snipes had been
engaged in reasonable discipline or the crime of cruelty to children,
which requires proof of malice. See OCGA § 16-5-70 (b) (“Any person
commits the offense of cruelty to children in the first degree when
such person maliciously causes a child under the age of 18 cruel or
excessive physical or mental pain.”); Delacruz v. State, 280 Ga. 392,
396 (3) (627 SE2d 579) (2006) (“With regard to the crime of cruelty
to children, criminal intent may be inferred from conduct before,
during and after the commission of the crime.” (citation and
punctuation omitted)); OCGA § 16-3-20 (3) (“The defense of justification can be claimed . . . [w]hen the person’s conduct is the
reasonable discipline of a minor by his parent or a person in loco
parentis[.]”). And Neal’s testimony as to her perception of Snipes’s
demeanor at that time was admissible. See Morgan v. State, 307 Ga.
889, 895 (3) (a) (838 SE2d 878) (2020) (evidence of defendant’s
condition and demeanor near the time of the alleged crimes is
relevant); Brown v. State, 307 Ga. 24, 34 (6) (c) (834 SE2d 40) (2019)
(no ineffective assistance for failure to object where witness’s
testimony was “rationally based on his perception and helpful to
understanding his testimony” (citation and punctuation omitted));
OCGA § 24-7-701 (a) (1) (lay witness’s testimony in the form of
opinions and inferences shall be limited to, inter alia, those opinions
or inferences that are rationally based on the perception of the
witness).
Moreover, although trial counsel agreed at the new trial
hearing that Neal’s testimony that Snipes was an “angry” person
was prejudicial, counsel also testified that their trial strategy
included demonstrating that Neal was actually the violent and angry one, which they were later permitted to do through several
witnesses who testified about Neal’s intimidating, controlling, and
abusive behavior. Counsel was also permitted to cross-examine Neal
regarding her own anger and temper. Under these circumstances,
we cannot say that forgoing an objection to Neal’s testimony about
Snipes’s anger in order to pursue similar testimony about Neal’s
anger without objection was so patently unreasonable that no
competent lawyer would have made the same decision. See Hayes v.
State, 298 Ga. 98, 105 (2) (c) (779 SE2d 609) (2015) (“The matter of
when and how to raise objections is generally a matter of trial
strategy.” (citation and punctuation omitted)); Johnson v. State, 294
Ga. 86, 92-93 (7) (b) (750 SE2d 347) (2013) (trial counsel’s decision
to forgo objection to witness’s testimony in favor of impeaching
witness was reasonable trial strategy and did not support an
ineffectiveness claim). Accordingly, Snipes has failed to demonstrate
constitutionally deficient performance as to this ground.
(ii) Turning to Neal’s testimony that Snipes must have caused Ty’Qwan’s injuries,6 trial counsel testified that he did not object
because he felt that they would be able to show that Neal was
disingenuous. Trial counsel explained they knew Neal was going to
testify that everything was Snipes’s fault, so they planned to set
Neal up with this type of response and then discount it with other
testimony showing that Neal caused some of the injuries. We
conclude that this trial strategy is not patently unreasonable. See
Koonce v. State, 305 Ga. 671, 673 (2) (b) (827 SE2d 633) (2019) (“A
decision to refrain from objecting to testimony in favor of impeaching
a witness or showing inconsistencies in the evidence is a trial
strategy, and if reasonable, will not support an ineffectiveness
claim.”).
6 The record shows the following exchange occurred:
Q: And Miss Neal, you indicated, you’ve seen the [autopsy] pictures. A: Yes, sir. Q: And the medical examiner has testified that there was approximately, more or less, ten wounds to his head. A: Yes, sir. Q: Did you cause those wounds? A: No, sir. Q: Well, if you didn’t cause those wounds, who did? A: It had to be [Snipes]. Moreover, Neal’s opinion that Snipes must have been the one
to cause Ty’Qwan’s injuries was based on her perceptions and
personal knowledge, including that she had seen Snipes inflict
multiple forms of physical punishment previously and that Neal had
been out of the house while Snipes had been with Ty’Qwan most of
the day before his death. See Grier v. State, 305 Ga. 882, 885-86 (2)
(a) (828 SE2d 304) (2019) (witness’s opinion testimony admissible
where it is rationally based on his perception and helpful to
understanding his testimony); OCGA § 24-7-704 (a) (“Except as
provided in subsection (b) of this Code section, testimony in the form
of an opinion or inference otherwise admissible shall not be
objectionable because it embraces an ultimate issue to be decided by
the trier of fact.”). Thus, any objection would have been meritless,
and “[t]rial counsel cannot be deficient for failing to object to
admissible testimony.” Grier, 305 Ga. at 886 (2) (a).
(iii) With respect to Neal’s testimony that Snipes “wasn’t
working or nothing,” Snipes has not shown how this testimony was
evidence of her bad character or otherwise prejudicial. Furthermore, Snipes did not question either of her trial attorneys as to why they
made no objection. “[I]n the absence of testimony to the contrary,
counsel’s actions are presumed strategic.” Calhoun v. State, 308 Ga.
146, 151 (2) (b) (839 SE2d 612) (2020) (citation and punctuation
omitted).
(iv) In support of her final argument regarding Neal’s
testimony, Snipes points to two instances of hearsay that she alleges
improperly introduced bad character evidence. Neal testified, “They
said [Snipes] acted different when I left and she slammed dishes
around, stuff like that.” She also testified that “[Snipes] had stated
to — was my cousin Shamika Mays, said I tore his — excuse my
language — ‘I tore his ass up.’” Snipes does not offer specific
argument regarding how the first statement constituted improper
character evidence, and pretermitting whether the second
statement constituted improper character evidence, it was largely
cumulative of other admissible testimony regarding Snipes’s actions
toward Ty’Qwan, and therefore Snipes has failed to show that trial
counsel was deficient in failing to object to this testimony or that a reasonable probability exists that the outcome of the trial would
have been different if the objection had been made. See Sawyer v.
State, 308 Ga. 375, 384 (2) (b) (839 SE2d 582) (2020) (trial counsel
not deficient in failing to object to cumulative testimony); Wilson v.
State, 297 Ga. 86, 88 (2) (772 SE2d 689) (2015) (failure to object to
custodial statements that were cumulative of defendant’s own
properly admitted statements does not support a claim of ineffective
assistance of counsel).
(c) Snipes next contends that trial counsel performed
deficiently by eliciting and failing to move to strike damaging
testimony on cross-examination of the lead investigator. We begin
by noting that “[d]ecisions about what questions to ask on cross-
examination are quintessential trial strategy and will rarely
constitute ineffective assistance of counsel.” Morrison v. State, 303
Ga. 120, 126 (5) (b) (810 SE2d 508) (2018) (citation and punctuation
omitted). See also Naples v. State, 308 Ga. 43, 55 (3) (b) (838 SE2d
780) (2020).
(i) Snipes first points to trial counsel’s question regarding which injuries the investigator was convinced that Snipes had
caused. The investigator responded:
The main injuries, when we interviewed her, we took into account the ones that she could explain. We also took into account that he’s a two-year-old and there’s typical injuries that are going to occur to a child. But our main focus was the head injuries . . . and the penis. Those were our main concerns. We felt that those were the ones that needed some explanation.
In context, this testimony merely explains which injuries
officers were most concerned about and focused on during their
investigation, not whether Snipes had actually inflicted the injuries.
Thus, Snipes cannot show that trial counsel was deficient for
eliciting or failing to move to strike this testimony.
(ii) Next, Snipes points to testimony elicited after trial counsel
asked whether the investigator drew a conclusion about Ty’Qwan’s
other injuries. The investigator responded:
Yes, sir, the other marks were concerns too, as far as the belt marks and the other brush marks and the bite marks. Those were all concerns. You know, basically we was trying to find out was it just discipline or was it abuse? And my conclusion, my professional conclusion, it was abuse. Again, whether the investigator believed the acts constituted
discipline or abuse, his testimony does not speak to whether Snipes
or Neal had committed the acts. And trial counsel also elicited
testimony from the investigator that he did not know who had
caused Ty’Qwan’s head injuries; that Snipes had showed some
emotion for the victim, whereas Neal never broke down; and that he
did not think Neal was forthcoming.
Moreover, trial counsel testified that his general strategy in
cross-examining the lead investigator was to hone in on the
investigator’s prior testimony that some of the victim’s injuries were
not life-threatening and to show that it was Neal who was with
Ty’Qwan on the night that he received the fatal injuries. We thus
conclude that Snipes has failed to show that trial counsel acted
unreasonably in failing to move to strike this testimony. See Grant
v. State, 305 Ga. 170, 178 (5) (g) (824 SE2d 255) (2019) (no ineffective
assistance where questioning was part of counsel’s attempt to
weaken the State’s case by impugning the State’s ability to connect
the defendant’s presence at the scene with the victim’s murder), overruled in part on other grounds, State v. Lane, 308 Ga. 10 (838
SE2d 808) (2020).
(iii) Snipes further asserts that trial counsel was ineffective in
eliciting testimony from the lead investigator regarding Snipes’s
credibility and in failing to move to strike that testimony. The record
shows that trial counsel asked the investigator about Snipes’s
statement that she did not notice bruising on the victim when she
bathed him on the night of May 21. The investigator responded that
based on the answer Snipes had given, he did not believe she was
truthful with him about that issue.
Trial counsel testified at the motion for new trial hearing that
in questioning the investigator, he was trying to emphasize that if
the victim’s injuries were recent, it was possible that Snipes did not
see the fresh bruising when she bathed him. Snipes has not proved
that this strategy was unreasonable.
(d) Snipes also argues that trial counsel failed to properly seek
relief following two comments during the prosecutor’s closing
argument. First, she argues that the prosecutor violated the “golden rule” when he remarked:
Ladies and gentlemen, I represent the State of Georgia. But I also represent him. I represent the people that don’t have a voice. I represent that happy two-year-old boy. A lot of things have happened this week that made me think about Ty’Qwan. I’ve got an eight-year-old son that plays baseball here in Pike County. . . . And I couldn’t help but think about that young man right there. He’ll never learn to ride a bike. He’ll never get to play baseball or soccer or football or basketball. He’ll never get to enjoy his first kiss. He’ll never get to go to the prom. Never get to graduate from high school. Never get to have kids of his own.
However, because this argument “did not ask the jurors to
place themselves in a victim’s position,” it was not a “golden
rule” argument, and trial counsel was therefore not deficient in
failing to object. Lord v. State, 304 Ga. 532, 541 (7) (c) (820
SE2d 16) (2018) (citation and punctuation omitted).
Snipes also points to the following portion of the
prosecutor’s closing argument:
Raising kids is tough. Being a kid is tough. I’ve got a two- year-old daughter and we’re going through potty training with her too[.] . . . But she still has accidents, and she peed [o]n the floor, just like Ty’Qwan did. I didn’t hold her upside down and take a brush or belt or a backscratcher and hit her. I didn’t hit her at all. Later on that night she stuck her tongue out at me and I popped her on the leg with my hand, one time. That’s reasonable folks. . . . This is not. That’s malicious, it’s cruel, and it shows an abandoned and malignant heart.
Snipes asserts that this statement improperly injected the
prosecutor’s opinion of what constitutes reasonable discipline versus
abuse. We are not persuaded.
A closing argument is to be judged in the context in which it is made. What is more, a prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court’s discretion; within the scope of such latitude is the prosecutor’s ability to argue reasonable inferences from the evidence, including any that address the credibility of witnesses.
Styles v. State, 309 Ga. __, __ (4) (__ SE2d __) (2020) (citation and
punctuation omitted). Although the prosecutor’s statement here
included a personal anecdote, it is not an improper personal opinion
regarding what constitutes cruelty to children; rather, it invited the
jurors to make a reasonable inference based on the evidence in the
case. Cf. Robinson v. State, 278 Ga. 31, 36 (3) (c) (597 SE2d 386)
(2004) (“While it is improper for counsel to state to the jury his
personal belief as to the veracity of a witness, it is entirely proper for counsel to urge the jury to deduce such a conclusion from proven
facts.” (citation and punctuation omitted)).
Accordingly, this claim provides no basis for reversal.
(e) Snipes also asserts that trial counsel rendered
constitutionally ineffective assistance by failing to object to and seek
curative instructions for questions posed to Snipes’s mother on
cross-examination that called for speculation and opinions about the
credibility of other witnesses. We disagree.
Snipes points to the following series of questions posed by the
State:
Q: Would it surprise you to know that your daughter admitted to pouring hot water on the child’s penis? ... Q: Would it surprise you to know that your daughter admitted to holding the child upside down and hitting him . . . [w]ith her hand and with a brush and with a belt? ... Q: Would it surprise you to know that your daughter admitted to backhanding Ty’Qwan and his head hitting a doorknob? ... Q: Would it surprise you to know that the child, or that [Snipes] admitted to biting Ty’Qwan on the arm? ... Q: Would it surprise you if I was to tell you that your daughter admitted during an interview that she was carrying Ty’Qwan upside down when he hit his head on the wall?
However, the record shows that these questions were posed in
response to testimony from Snipes’s mother on direct examination
that Snipes interacted well with children; that she had never seen
Snipes discipline any children; that Snipes became upset when she
saw her sister spanking her sister’s daughter for wetting the bed;
and that she thought Neal was violent. On cross-examination, the
State then confronted her with Snipes’s prior statements in which
she admitted to inflicting some of Ty’Qwan’s injuries by posing the
questions about which Snipes now complains. After each question,
Snipes’s mother continued to defend her daughter and deny that she
would do what the State was suggesting.
[A]lthough it is improper to ask a testifying witness whether another witness is lying[,] . . . it is often necessary to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness.
Jones v. State, 299 Ga. 40, 43 (3) (785 SE2d 886) (2016) (citation,
punctuation and emphasis omitted). Here, the State’s cross- examination properly explored the witness’s opinions as to Snipes’s
character when confronted with contrary evidence that had
previously been admitted and did not ask the witness to testify as to
the veracity of any other witness. See OCGA § 24-4-404 (a) (1)
(where a defendant elicits testimony from a character witness
regarding a pertinent character trait of the defendant, the
prosecution is permitted to cross-examine the witness about specific
instances of the defendant’s conduct that are relevant to that
character trait). See also Jones, 299 Ga. at 44 (3) (“[Q]uestioning
designed to compare the defendant’s factual account with other
witnesses’ and allow jurors to draw their own conclusions is
unobjectionable.” (citation and punctuation omitted)). The failure to
make a meritless objection does not provide a basis upon which to
find ineffective assistance of counsel. See Newman v. State, 309 Ga.
__, __ (2) (c) (844 SE2d 775) (2020).
(f) Finally, we conclude that the cumulative prejudice from any
assumed deficiencies is insufficient to show a reasonable probability
that the results of the proceedings would have been different in the absence of the alleged deficiencies. See Jones v. State, 305 Ga. 750,
757 (4) (e) (827 SE2d 879) (2019). Accordingly, Snipes is not entitled
to relief under this theory.
Judgment affirmed. All the Justices concur.
Decided September 8, 2020.
Murder. Pike Superior Court. Before Judge Edwards. W. Allen Adams, Jr., for appellant. Benjamin D. Coker, District Attorney, Elizabeth A. Baker, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.