¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: June 21, 2023
¶4 S23A0338. JOHNSON v. THE STATE.
¶5 PINSON, Justice.
¶6 Reginald Demarcus Johnson was convicted of felony murder
¶7and first-degree cruelty to children in connection with the death of
¶8his six-month-old daughter, Jordan. 1 On appeal, Johnson contends
¶9 1The crimes occurred in April 2016. Johnson was indicted by a DeKalb County grand jury in May 2016 on one count each of malice murder, felony murder, and cruelty to children in the first degree. After a jury trial held in August 2016, Johnson was acquitted of the malice-murder charge but found guilty of felony murder and first-degree child cruelty. Johnson was sentenced to serve life in prison for felony murder; the child-cruelty count was merged into the felony murder count for sentencing purposes. Prior to his sentencing, Johnson filed a premature motion for new trial on October 3, 2016, which ripened upon the entry of the final disposition on October 5, 2016. See Southall v. State, 300 Ga. 462, 464-467 (1) (796 SE2d 261) (2017). Johnson amended his motion for new trial through new counsel in August and December of 2020 and January of 2021. The trial court held a hearing on the motion for new trial in September 2021. Johnson filed a premature notice of appeal on November 29, 2021, which he withdrew on January 4, 2022. The trial court denied the motion for new trial on August 15, 2022, and Johnson filed a timely notice of appeal on August 30, 2022. The appeal was docketed to the term of this Court beginning in December 2022 and was thereafter submitted for a decision on the briefs. that (1) the evidence was insufficient to support his convictions; (2)
¶10the verdict was contrary to the law and evidence and strongly
¶11against the weight of the evidence; (3) the trial court erred by
¶12admitting certain photographs taken before and during the autopsy;
¶13(4) the trial court erred by limiting the defense’s cross-examination
¶14of Jordan’s mother; (5) the trial court erred by allowing certain
¶15testimony by the medical examiner; (6) the trial court erred by
¶16excluding testimony about the defense’s unsuccessful effort to
¶17procure a witness; and (7) the trial court committed plain error by
¶18failing to give a jury instruction on accident.
¶19 Each of these claims fails. When viewed in the light most
¶20favorable to the verdicts, the evidence at trial showed that Jordan
¶21died from blunt force trauma to the head that was intentionally
¶22inflicted within the twelve-hour period when she was in Johnson’s
¶23sole care and that the evidence was sufficient to sustain the
¶24convictions as a matter of constitutional due process. And the jury
¶25was authorized to find that the evidence, although circumstantial,
¶26excluded every reasonable hypothesis other than that of Johnson’s
¶27 2 guilt, so the evidence was also sufficient as a matter of Georgia
¶28statutory law. The trial court’s refusal to grant a new trial on the
¶29“general grounds” is not subject to this Court’s review, so that claim
¶30fails. The autopsy photographs, used by the medical examiner to
¶31help explain his conclusions about Jordan’s injuries, were probative
¶32as to both the timing and the manner of injury, and the trial court
¶33did not abuse its discretion in concluding that the danger of unfair
¶34prejudice from their admission did not substantially outweigh their
¶35probative value. And even if the single “pre-autopsy” photograph
¶36should not have been admitted, it is highly probable that this
¶37photograph—which was far less graphic than the properly admitted
¶38autopsy photographs—did not contribute to the verdicts. Finally,
¶39the trial court did not abuse its discretion in prohibiting the defense
¶40from cross-examining Jordan’s mother on a topic not relevant to
¶41Johnson’s guilt or innocence; did not plainly err in allowing certain
¶42testimony by the medical examiner on a subject which his
¶43experience qualified him to speak on; did not abuse its discretion in
¶44refusing to allow testimony about the defense’s effort to procure a
¶45 3 witness, when it had failed to avail itself of the statutory material
¶46witness subpoena procedure; and did not plainly err in failing to give
¶47a jury instruction on accident because this theory was at odds with
¶48not only Johnson’s primary defense but also the overwhelming
¶49weight of the evidence. We therefore affirm Johnson’s convictions
¶50and sentence.
¶51 1. The evidence at trial showed as follows.2
¶52 (a) At 6:40 a.m. on April 4, 2016, emergency responders were
¶53dispatched to a DeKalb County home after Johnson made a 911 call
¶54to report that his six-month-old daughter, Jordan, was
¶55unresponsive. One of the paramedics who responded testified that
¶56she could tell Jordan had suffered a brain injury, based on her
¶57unequally dilated pupils and the swelling and bruising on her right
¶58temple. She said that Johnson at the time seemed a little nervous
¶59 2Our resolution of two of Johnson’s claims requires an assessment of the harm of presumed or actual trial errors. To undertake that assessment, we must “review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done.” Moore v. State, 315 Ga. 263, 264 (1) n.2 (882 SE2d 227) (2022) (citation and punctuation omitted). In light of that standard of review, we recount the evidence here through that lens rather than recounting it in the light most favorable to the jury’s verdict. 4 but not distraught. She also said that Johnson told her that Jordan’s
¶60twin brother sometimes “head-butted” her, but she did not believe
¶61Jordan’s injuries could have happened that way.
¶62 Another of the emergency responders testified that Johnson’s
¶63demeanor “wasn’t like a frantic parent would be.” That witness
¶64testified that Johnson told her that he woke up in the night and saw
¶65Jordan’s twin “laying on top of her suffocating her.” When she told
¶66Johnson his story was “not adding up” and that Jordan could not
¶67have sustained her injuries that way, Johnson suggested that
¶68“maybe it was when [she] rolled off the bed.” He denied dropping her
¶69by accident or hitting her, then “got quiet” and suggested that
¶70“maybe the other child did it.”
¶71 The pediatric emergency physician who treated Jordan at the
¶72hospital testified that Jordan’s CT scan showed fractures on both
¶73sides of her skull and bleeding in the brain. Those injuries, he
¶74opined, could not have been caused by another six-month-old in the
¶75ways Johnson suggested and would have had to have resulted from
¶76“major trauma” such as a car accident without seatbelts, getting hit
¶77 5 or kicked with great force, or falling from a “great height.” In
¶78addition, the effects of the head trauma would have been noticeable
¶79within minutes to an hour of the trauma, such that Jordan would
¶80not have engaged in normal movement or made normal noises.
¶81 A hospital social worker who spoke with Johnson testified that
¶82Jordan’s injuries were “completely inconsistent” with Johnson’s
¶83story and that, based on the severity of the injury and the absence
¶84of any obvious explanation for it, she suspected child abuse and
¶85determined that law enforcement needed to be contacted.
¶86 (b) Jordan’s mother, Ciara Cole, testified about the chronology
¶87of events on April 3 and 4. At the time, she and the twins were living
¶88at her mother’s home, and Johnson, who had lived with them at one
¶89time, was living with his aunt, Sallie White. On April 3, Cole and
¶90the twins were at her mother’s home until about 2:30 p.m., when she
¶91left for a short time to pick Johnson up from work. When they
¶92returned, they were arguing. While she took a shower, Johnson took
¶93the twins, left the house, and walked to a nearby restaurant. She
¶94tracked them down and drove there, and they all left together to go
¶95 6 to Johnson’s grandmother’s house. Johnson’s father, who was at the
¶96house, took Jordan in the house for about five minutes; at that time,
¶97Jordan seemed “normal.” After a short time, Cole took Johnson and
¶98the twins to White’s home, where they were to stay that night. She
¶99dropped them off, went back to her mother’s home, and later went
¶100out with friends. Throughout the night and into the morning, Cole
¶101exchanged texts with Johnson, checking on the twins. Johnson never
¶102indicated there was anything unusual, until he called early on the
¶103morning of April 4 to tell her Jordan was unresponsive. Ultimately,
¶104on April 7, once the extent of Jordan’s injuries was known, the
¶105decision was made to take her off life support.
¶106 Cole testified that she had suffered from depression after the
¶107twins were born. She also admitted that, after Jordan died, she
¶108began using cocaine and had been arrested for cocaine possession
¶109and theft by shoplifting, and that such charges were still pending at
¶110the time of trial. Cole said she had been offered no deal in exchange
¶111for her testimony here. In addition, Cole admitted that her other
¶112children “live with other people right now,” although she visits with
¶113 7 them.
¶114 Cole’s mother, Robbie Johnson, testified that on April 3, Cole
¶115and the twins were at her home until the mid-afternoon; that she
¶116had awakened around lunchtime that day and nothing was unusual;
¶117that Cole and Johnson were arguing after Cole picked him up from
¶118work; and that Jordan was fine. She also testified that after Jordan’s
¶119death, Cole had a “nervous breakdown” and started using cocaine.
¶120 (c) Dr. Stephen Messner, the chair of the hospital’s child abuse
¶121pediatrics department, and Peggy Woodard, a social worker with the
¶122Department of Family and Children Services (DFCS) who was called
¶123in to assess Jordan’s case, both testified about the hospital’s
¶124investigation. Woodard, together with a hospital fellow working
¶125under Dr. Messner’s supervision, interviewed Johnson at the
¶126hospital. Johnson told Woodard he did not know what had caused
¶127Jordan’s injury, but guessed that her twin brother had kicked her.
¶128He said that Jordan had been acting normally on April 3 but that
¶129she had not taken much of her bottle. He said he was alone with the
¶130twins from around 6:30 until around 9:30 that evening, when his
¶131 8 aunt got home. His aunt saw the twins and all was fine. Johnson
¶132said that the twins slept with him in a queen-sized bed and that they
¶133went to sleep around 10:00 p.m. A few hours later, Jordan awoke,
¶134crying, and he noticed her brother was kicking her. He shifted his
¶135son and calmed Jordan, and they went back to sleep. Johnson woke
¶136up again around 5:00 a.m. and noticed that his son was situated with
¶137his “torso laying on [Jordan].” He moved his son and picked up
¶138Jordan, who he realized was unresponsive. So he “shook her lightly”
¶139and tried to rouse her with some water; when that didn’t work, he
¶140went to his aunt, who told him to call 911. Woodard described
¶141Johnson’s demeanor as “calm,” “cooperative,” and “relaxed,” in
¶142contrast to Cole, who was “visibly upset.” Johnson said that April 3
¶143was the second time he had had the twins with him overnight by
¶144himself. Although Johnson would later claim he accidentally hit
¶145Jordan’s head against the bed’s headboard before they all went to
¶146sleep that night, Johnson made no mention of this in his interview
¶147with Woodard.
¶148 Dr. Messner, who was qualified as an expert in child abuse
¶149 9 pediatrics, testified that Jordan’s CT scans showed fractures on the
¶150back and both sides of her skull. Based on their length, and the fact
¶151that they were “depressed” and exhibited “branching,” Dr. Messner
¶152opined that they must have been caused by “significant force.”
¶153Subdural hemorrhages were indicative of trauma characterized by
¶154rapid twisting or rotating. These injuries, he opined, could not have
¶155been caused by a fall. And nothing that was reported in Jordan’s
¶156history—getting kicked or rolled on by her brother, light shaking, or
¶157a minor bump against a headboard—could have caused the injuries.
¶158He opined that Jordan would have shown signs of distress
¶159immediately or within moments of sustaining her injuries. In his
¶160opinion, her injuries were consistent with physical abuse.
¶161 (d) In an interview at the hospital with a DeKalb County police
¶162detective, Johnson maintained that he did not know what had
¶163happened and that Jordan had been fine the night before, other than
¶164refusing to take her bottle. And again he mentioned that Jordan’s
¶165brother was lying on his sister’s head at one point and suggested
¶166that perhaps he had kicked or head-butted her during the night. He
¶167 10 did not mention anything about accidentally hitting Jordan’s head
¶168against the headboard.
¶169 The lead detective in the case, Gregory Moore, testified that,
¶170after Jordan’s death, he tried to contact Johnson on April 7 and 8
¶171but could not reach him, and Johnson failed to return the calls. After
¶172another unsuccessful try on April 9, Detective Moore obtained an
¶173arrest warrant. Johnson was ultimately arrested on April 10 when
¶174he appeared in court in an unrelated DFCS proceeding—at which he
¶175appeared only after initially failing to show up and being called in
¶176by a DFCS case-worker.
¶177 Following Johnson’s arrest, Detective Moore interviewed
¶178Johnson, an audio recording of which was played for the jury.
¶179Johnson continued to insist that he had done nothing to hurt Jordan,
¶180that he “wasn’t rough with” the twins, that Jordan was “fine,” and
¶181that he did not know what had happened to her. He denied he had
¶182ever “put hands on” his kids or any of his romantic partners. He said
¶183he “wasn’t even angry that night.” And he said no accident had
¶184happened. He then suggested that “maybe [he] fell asleep and rolled
¶185 11 over on her.” After a break in the interview, Johnson began with, “I
¶186didn’t think this was an issue because she didn’t cry, but . . .” He
¶187went on to explain that at one point in the evening before they went
¶188to sleep, he was on the bed with Jordan on his chest when he noticed
¶189that her brother had spit up, causing him to react by jumping up
¶190and accidentally hitting Jordan’s head against the headboard. He
¶191said she did not cry, so he laid her on the bed so he could clean up
¶192his son. He said he “really forgot” that this had happened, and that
¶193“that’s the only thing that happened.” Detective Moore said Johnson
¶194showed little emotion during the interview. Johnson also gave a
¶195written statement that tracked what he said in the interview,
¶196including the part about the headboard.
¶197 (e) The medical examiner who performed Jordan’s autopsy, Dr.
¶198Gerald Thomas Gowitt, testified that Jordan had significant head
¶199trauma but few external injuries, which was not unusual in a case
¶200of child abuse. Examination of Jordan’s head revealed substantial
¶201hemorrhaging and bruising and multiple skull fractures, including
¶202a 10-inch fracture running from one side to the other and additional
¶203 12 fractures on each side with “tributaries” branching off. The fracture
¶204patterns indicated multiple impacts of “considerable force” and were
¶205not characteristic of a simple fall; the only possible accidental cause
¶206of such injuries would be a car crash or a fall from a great height.
¶207There was no evidence that any of these injuries had begun to heal.
¶208In addition to the brain injuries, there was retinal hemorrhaging in
¶209both eyes, the characteristics of which were “highly suggestive of
¶210acceleration and deceleration of the head at high speed.”
¶211 Dr. Gowitt also testified that once a fatal head injury is
¶212inflicted, the symptoms appear almost immediately and are obvious,
¶213even to a layperson. So too, he said, for the retinal hemorrhaging;
¶214after an injury of that type, a child likely would be unconscious and
¶215would not be smiling, cooing, or otherwise responding. Because of
¶216the lack of external injuries, Dr. Gowitt opined that it was likely that
¶217Jordan had been slammed into something hard, smooth, and broad,
¶218and that an adult male would be capable of creating enough force to
¶219cause those injuries. According to Dr. Gowitt, six-month-olds have
¶220the same sensory nerves as adults, so they have the same ability to
¶221 13 feel pain.
¶222 Dr. Gowitt concluded that the cause of death was
¶223craniocerebral trauma and the manner of death was homicide.
¶224 (f) Johnson’s counsel cross-examined the State’s medical
¶225experts about the concept of a “lucid interval,” which can occur after
¶226a person has suffered head trauma. As these experts testified, head
¶227trauma victims typically experience confusion, loss of consciousness,
¶228or other symptoms immediately after sustaining the injury, but that
¶229initial period is sometimes followed by a “lucid interval” during
¶230which the victim appears “asymptomatic,” before symptoms
¶231reappear. The emergency physician, while agreeing on cross that he
¶232could not “rule . . . out medically” the theory that Jordan had
¶233experienced a lucid interval, testified on redirect that “you don’t
¶234suffer this degree of trauma . . . and then have a lucid period.” Dr.
¶235Messner testified that the “vast majority” of lucid intervals occur
¶236when the patient is experiencing epidural bleeding rather than—as
¶237 14 Jordan experienced—subdural bleeding. 3 And Dr. Gowitt opined
¶238that Jordan’s injuries were not those with which he might expect to
¶239see a lucid interval.
¶240 Johnson’s counsel also unsuccessfully sought, in cross-
¶241examining Cole and Cole’s mother, to elicit that Cole’s sister and
¶242brother had been present during the day on April 3 when she and
¶243the twins had been at her mother’s home. Johnson’s counsel did,
¶244however, elicit from Woodard that her notes indicated Cole had told
¶245her that her brother and sister had been playing with Jordan at
¶246their mother’s home on April 3.
¶247 (g) After the State rested, the defense called its own expert
¶248forensic pathologist, Dr. Janice Ophoven, who concluded that
¶249Jordan had died from blunt force trauma to the head, “consistent
¶250with a single impact,” and opined that Jordan could have
¶251experienced one or more lucid intervals during which her body was
¶252 3 Dr. Gowitt explained that between the inside of the skull and the outside surface of the brain there are two “spaces”: the “epidural” space and the “subdural” space, which lies between the epidural space and the brain itself. 15 “compensating” after sustaining the initial injury. She described the
¶253skull fracture as an “eggshell fracture,” “characteristic of babies of
¶254less than a year because of their deformable skull,” and opined that
¶255the injury had been inflicted sometime within the 24-hour period
¶256before she became unresponsive, the complications from which had,
¶257“over time,” led to brain swelling and death. Dr. Ophoven opined
¶258that the retinal hemorrhages could have been caused by medical
¶259intervention and thus were not necessarily indicative of any
¶260particular mode of injury. She also opined that the fact that Jordan’s
¶261twin was found lying on top of her could have affected her injury,
¶262and that Jordan’s mother’s depression and substance abuse were
¶263“red flags.”
¶264 Johnson himself testified, maintaining that he had done
¶265nothing to cause his daughter’s death or any pain and described
¶266himself as having a loving, kind, and peaceful nature. He said he
¶267had concerns about Cole’s depression and had on a prior occasion
¶268reported those concerns to a DFCS worker in connection with a
¶269hospital visit for Jordan’s twin brother. He recounted Cole’s
¶270 16 chronology of April 3 from the time Cole picked him up until she
¶271dropped him and the twins off at his aunt’s home. He said that, after
¶272arriving at his aunt’s, he played with the twins, watched TV with
¶273them, gave them their bottles—although Jordan did not take hers—
¶274and then put them to bed. He said Jordan seemed fine that afternoon
¶275and evening, aside from refusing her bottle and having a runny nose.
¶276He recounted the headboard incident, waking up in the night to find
¶277Jordan’s brother kicking her, and later waking up to find him lying
¶278on top of her, with Jordan unresponsive.
¶279 When asked why he had failed to mention the headboard
¶280incident until his interview with the detectives, Johnson replied that
¶281he “honestly just forgot about it.” And when asked about the calls
¶282from Detective Moore he never returned, he explained that he
¶283“didn’t pay attention” to his phone during that time because he was
¶284“grieving,” and said he had already given a statement to the
¶285detective at the hospital. As to why he had not initially appeared at
¶286the DFCS proceeding on April 10, he said his family had told him he
¶287did not need to be there.
¶288 17 Johnson admitted that he had been convicted of domestic
¶289violence in Tennessee in connection with a fight with his ex-wife’s
¶290cousin, which left the cousin bloodied and momentarily unconscious.
¶291He admitted on cross-examination that he told police at the time
¶292that he had “snapped.” Johnson also admitted that, on one occasion,
¶293an argument with Cole had become “physical” and he had given her
¶294a black eye. In addition, he admitted that he had been previously
¶295convicted of obstruction and giving a false name and that in this case
¶296he had violated the condition of his bond that required him not to
¶297contact any witnesses.
¶298 The defense also presented Johnson’s aunt, Sallie White, who
¶299testified that she did not notice anything amiss with Jordan on the
¶300evening of April 3 and did not hear any commotion or unusual noises
¶301during that night. Johnson’s father also testified, noting that on the
¶302afternoon of April 3 he noticed that Jordan was “not responding” to
¶303him but figured she was just sleepy. Various character witnesses,
¶304including family, friends, and Johnson’s ex-wife, also testified,
¶305describing Johnson as loving, kind, and a good father.
¶306 18 2. Johnson contends that the evidence was insufficient, both
¶307as a matter of constitutional due process and as a matter of Georgia
¶308statutory law, to support his convictions.
¶309 (a) When assessing a challenge to the sufficiency of the
¶310evidence as a matter of constitutional due process, the evidence
¶311presented at trial is viewed in the light most favorable to the verdicts
¶312to determine whether any rational trier of fact could have found the
¶313defendant guilty beyond a reasonable doubt of all the crimes of
¶314which he was convicted. See Jones v. State, 304 Ga. 594, 598 (2) (820
¶315SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (III)
¶316(B) (99 SCt 2781, 61 LE2d 560) (1979)). In making this
¶317determination, we do not evaluate witness credibility, resolve
¶318inconsistencies in the evidence, or assess the weight of the evidence;
¶319these tasks are left to the sole discretion of the jury. See Walker v.
¶320State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014). The jury’s verdicts
¶321will be upheld as long as some competent evidence, even if
¶322contradicted, supports each fact necessary to make out the State’s
¶323case. See Jones, 304 Ga. at 598 (2).
¶324 19 Here, the evidence viewed most favorably to the verdicts
¶325showed that Jordan suffered non-accidental blunt force injuries
¶326during a time when Johnson was the only person present and
¶327capable of inflicting such injuries. The jury was authorized to not
¶328believe Johnson’s story, and to credit the medical experts’ testimony
¶329that Jordan’s injuries would have been apparent within a short time
¶330after their infliction, and that the theory that Jordan had
¶331experienced a “lucid interval” during the afternoon of April 3 was
¶332unsound. And the jury was authorized to find that Jordan had
¶333experienced cruel and excessive pain from the injuries she
¶334sustained. See Moore v. State, 283 Ga. 151, 153 (1) (656 SE2d 796)
¶335(2008) (noting that “evidence of a child’s age, the extent of injuries,
¶336the nature of the assault to which the child was subjected, and the
¶337force with which the child was struck is sufficient evidence from
¶338which the jury can conclude whether the defendant caused the child
¶339cruel or excessive physical pain”). Therefore, the evidence was
¶340sufficient as a matter of constitutional due process to support
¶341Johnson’s convictions for felony murder and cruelty to children in
¶342 20 the first degree. See id. (affirming convictions for felony murder and
¶343first-degree cruelty to children).
¶344 (b) A conviction on circumstantial evidence is authorized if the
¶345proved facts “exclude every other reasonable hypothesis save that of
¶346the guilt of the accused.” OCGA § 24-14-6. “Not every hypothesis is
¶347a ‘reasonable’ one, and the evidence need not exclude every
¶348conceivable inference or hypothesis, only the reasonable ones.”
¶349Willis v. State, 315 Ga. 19, 23-24 (2) (880 SE2d 158) (2022) (citation
¶350and punctuation omitted). Whether an alternative hypothesis is
¶351reasonable and whether the evidence excludes any such hypotheses
¶352are questions for the jury, whose findings on those questions must
¶353stand unless they are “insupportable as a matter of law.” Id. at 24
¶354(2).
¶355 Here, the evidence authorized the jury to reject as
¶356unreasonable the alternative hypothesis that someone other than
¶357Johnson—i.e., Cole or Cole’s mother, sister, or brother—caused
¶358Jordan’s fatal injuries at some point before Johnson assumed her
¶359care. There was no evidence that Jordan was exhibiting any signs of
¶360 21 trauma or distress until Johnson called 911, and three medical
¶361experts opined that Jordan’s symptoms would have begun to
¶362manifest immediately or shortly after the trauma—and that a lucid
¶363interval was improbable given the nature of her injuries. Johnson
¶364contends that the evidence shows Jordan’s injuries could just as
¶365likely have been the result of an accident as opposed to an
¶366intentional act, but the jury was well within its authority to reject
¶367that theory as unreasonable. We thus have no basis for disturbing
¶368the jury’s findings. See Willis, 315 Ga. 25 (2).
¶369 3. Johnson next contends that the verdict and judgment are
¶370“decidedly and strongly against the weight of the evidence.”
¶371 “Even when the evidence is legally sufficient to sustain a
¶372conviction, a trial judge may grant a new trial if the verdict of the
¶373jury is ‘contrary to . . . the principles of justice and equity,’ OCGA §
¶3745-5-20, or if the verdict is ‘decidedly and strongly against the weight
¶375of the evidence.’ OCGA § 5-5-21.” Drennon v. State, 314 Ga. 854, 860
¶376(2) (880 SE2d 139) (2022) (citation and punctuation omitted). When
¶377these so-called “general grounds” are properly raised in a timely
¶378 22 motion for new trial, the trial judge must “exercise a broad discretion
¶379to sit as a ‘thirteenth juror.’” Id. (citation and punctuation omitted).
¶380This role requires the judge to consider matters typically reserved
¶381to the jury, including conflicts in the evidence, witness credibility,
¶382and the weight of the evidence. See id.
¶383 As is plain from the order denying Johnson’s motion for new
¶384trial, the trial court performed its role as the thirteenth juror. In its
¶385order, the court noted that, after considering “[the] conflicts in the
¶386evidence, the credibility of witnesses, and the weight of the
¶387evidence,” “[t]he Court, in an exercise of discretion finds that the
¶388verdict was neither ‘contrary to evidence and the principles of justice
¶389and equity’ . . . nor ‘decidedly and strongly against the weight of the
¶390evidence[.]’” The trial court’s decision in this regard is not subject to
¶391our review—this Court “does not sit as an arbiter of the general
¶392grounds, which are solely within the discretion of the trial court.”
¶393Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023) (citation
¶394 23 and punctuation omitted).4 So this claim fails.
¶395 4. Johnson contends that the trial court erred by admitting into
¶396evidence certain photographs from before and during Jordan’s
¶397autopsy. Before trial, Johnson moved to exclude the photographs,
¶398arguing that they were not relevant and were gruesome and unduly
¶399prejudicial under OCGA § 24-4-403. The trial court disagreed and
¶400admitted the photographs, over Johnson’s objection, when they were
¶401tendered at trial.
¶402 (a) Evidence is relevant if it has “any tendency to make the
¶403existence of any fact that is of consequence to the determination of
¶404the action more probable or less probable than it would be without
¶405the evidence.” OCGA § 24-4-401. Relevant evidence is generally
¶406admissible, see OCGA § 24-4-402, but such evidence “may be
¶407excluded if its probative value is substantially outweighed by the
¶408 4Because we have already rejected Johnson’s claim that the evidence was insufficient as a matter of constitutional due process under Jackson v. Virginia, we need not consider whether it would be proper to analyze Johnson’s general-grounds claim by reference to the Jackson constitutional sufficiency standard. See King v. State, No. S23A0214, slip op. at * __ (2) n.8 (decided June 21, 2023) (noting this Court’s past practice of analyzing general-grounds claims by performing or referencing a sufficiency-of-the-evidence review under Jackson but declining to determine the propriety of that practice). 24 danger of unfair prejudice, confusion of the issues, or misleading the
¶409jury or by considerations of undue delay, waste of time, or needless
¶410presentation of cumulative evidence.” OCGA § 24-4-403. That said,
¶411“the exclusion of relevant evidence under Rule 403 is an
¶412extraordinary remedy that should be used only sparingly.” Albury v.
¶413State, 314 Ga. 459, 461 (3) (877 SE2d 548) (2022) (citation and
¶414punctuation omitted). Decisions whether to admit evidence under
¶415these rules are “committed to the sound discretion of the trial court.”
¶416Id. (citation and punctuation omitted).
¶417 (b) Five of the six contested photographs were taken during the
¶418autopsy. Two of those photographs depicted, from different angles,
¶419Jordan’s head with the scalp peeled back to show the hemorrhaging
¶420beneath the scalp. Three others showed the various fractures on
¶421Jordan’s skull. At the pretrial hearing, the State told the trial court
¶422that Dr. Gowitt had specifically selected those photographs for use
¶423during his testimony. During trial, Dr. Gowitt referred to these
¶424photographs while describing the hemorrhaging and bruising
¶425underneath Jordan’s scalp and the multiple fractures, some
¶426 25 affecting more than one bone within the skull—all of which, Dr.
¶427Gowitt testified, indicated multiple impacts sustained from a non-
¶428accidental cause, the effects of which would have been apparent
¶429immediately or within a very short period of time.
¶430 The trial court did not abuse its discretion in admitting these
¶431five photographs. Autopsy photographs may be relevant to show the
¶432nature or extent of a victim’s injuries. See Albury, 314 Ga. at 462 (3);
¶433Lanier v. State, 310 Ga. 520, 527-528 (4) (852 SE2d 509) (2020).
¶434These photographs, which assisted the medical examiner in
¶435describing the nature and severity of Jordan’s injuries, were highly
¶436relevant to the issues of both how and when the injuries were
¶437sustained. Because both the timing of the injuries and the manner
¶438of their infliction were contested issues in the case, the photographs’
¶439probative value was high. See Albury, 314 Ga. at 462 (3) (autopsy
¶440photograph had “significant probative value” in supporting State’s
¶441theory of how injuries were inflicted); Lanier, 310 Ga. at 527-528 (4)
¶442(autopsy photographs admissible where they “corroborated the
¶443State’s evidence of the circumstances of the killings”). And although
¶444 26 the photographs may have been graphic, we cannot say the trial
¶445court abused its discretion in concluding that their probative value
¶446was not substantially outweighed by the danger of unfair prejudice.
¶447See Albury, 314 Ga. at 462 (3) (although photograph of victim’s head
¶448with scalp and face peeled back may have been “gruesome,” trial
¶449court did not abuse its discretion in admitting it because of its
¶450probative value).
¶451 (c) The remaining photograph was taken before the autopsy.
¶452This photo showed Jordan as she arrived from the hospital, with
¶453various tubes, wires, and a neck collar still attached to her body. The
¶454defense argued that the photo was inflammatory because of all the
¶455“apparatuses” on Jordan; the State argued that was its
¶456“identification” photo, as it had the medical examiner’s case number
¶457on it, and it was being used to establish that the subject of the
¶458autopsy was in fact the victim. After looking through various full
¶459body pictures of the victim, the court ruled that the photograph at
¶460issue could be used “as an ID shot.”
¶461 The relevance of the pre-autopsy photograph is questionable
¶462 27 given that the victim’s identity was not contested and the fact that,
¶463unlike the other autopsy photos, it was of little relevance to the
¶464victim’s injuries, which were largely internal. Cf. Perez v. State, 309
¶465Ga. 687, 695 (3) (848 SE2d 395) (2020) (pre-autopsy photos were
¶466properly admitted because they showed the nature and location of
¶467victim’s wounds and thus were probative of “how the killing
¶468occurred”). But we need not decide whether admitting the
¶469photograph was error, because even assuming it was, the error was
¶470harmless.
¶471 “Erroneous evidentiary rulings are subject to a harmless-error
¶472test.” Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509) (2022). A
¶473nonconstitutional error is harmless if it is “highly probable that the
¶474error did not contribute to the verdict.” Id. (citation and punctuation
¶475omitted). The burden to make this showing is the State’s to bear,
¶476and in determining whether the showing has been made, we review
¶477the record de novo and weigh the evidence as we would expect
¶478reasonable jurors to have weighed it. Id. (citation and punctuation
¶479omitted). Here, the single pre-autopsy photograph was not nearly as
¶480 28 graphic as the five properly admitted autopsy photographs, and the
¶481evidence that Jordan’s injuries were inflicted on purpose, during a
¶482period in which Jordan was under the supervision of Johnson alone,
¶483was strong. Under these circumstances, it is highly probable that
¶484any error in admitting this single pre-autopsy photograph did not
¶485contribute to the verdicts. See Jenkins v. State, 270 Ga. 607, 609 (3)
¶486(512 SE2d 269) (1999) (even assuming admission of pre-autopsy
¶487photos was error, error was harmless in light of overwhelming
¶488evidence of defendant’s guilt).
¶489 5. Johnson next contends that the trial court “erred and
¶490violated the Sixth Amendment right of confrontation” by limiting
¶491the defense’s cross-examination of Cole on certain topics.
¶492 Both the United States and Georgia Constitutions guarantee
¶493to an accused the right to confront and cross-examine the witnesses
¶494against him. See U.S. Const. amend VI; Ga. Const. of 1983, Art. I,
¶495Sec. I, Par. XIV. See also Davis v. Alaska, 415 U.S. 308, 315 (2) (94
¶496SCt 1105, 39 LE2d 347) (1974); Miller v. State, 266 Ga. 850, 856 (7)
¶497(472 SE2d 74) (1996). To that end, our Evidence Code affords
¶498 29 criminal defendants “the right of a thorough and sifting cross-
¶499examination . . . as to the witnesses called against [them].” OCGA §
¶50024-6-611 (b). But “the right of cross-examination is not an absolute
¶501right that mandates unlimited questioning by the defense.” Howard
¶502v. State, 286 Ga. 222, 225 (2) (686 SE2d 764) (2009) (citation and
¶503punctuation omitted). Trial courts have “wide latitude to impose
¶504reasonable limits on cross-examination based on concerns about,
¶505among other things, interrogation that is only marginally relevant.”
¶506Lucas v. State, 303 Ga. 134, 137 (2) (810 SE2d 491) (2018) (citation
¶507and punctuation omitted). See also OCGA § 24-6-611 (b) (providing
¶508that scope of cross-examination extends to “any matter relevant to
¶509any issue in the proceeding”). Trial courts also have discretion to
¶510limit witness interrogation to “[p]rotect witnesses from harassment
¶511or undue embarrassment.” OCGA § 24-6-611 (a) (3). We review a
¶512trial court’s limitation on the scope of cross-examination for abuse of
¶513discretion. See Lucas, 303 Ga. at 136-137 (2).
¶514 Here, Johnson contends that the trial court unduly limited his
¶515right to confront Cole on three topics: (1) her purported dishonesty
¶516 30 about the paternity of the twins’ half-brother; (2) the fact that she
¶517had lost custody of that child as well as Jordan’s twin; and (3) Cole’s
¶518postpartum depression. Johnson contends broadly that, because
¶519Cole was a “likely suspect” in Jordan’s death, he had the right to
¶520“impeach” her on all of these subjects.
¶521 Johnson’s counsel cross-examined Cole at length on a variety
¶522of topics, including her relationship with Johnson, her chronology of
¶523the events of April 3 and 4, whether her brother and sister were
¶524present at her mother’s home on April 3, and her statements to
¶525Woodard and to law enforcement on April 4. Johnson’s counsel also
¶526cross-examined Cole on her drug and alcohol abuse, her pending
¶527felony charges, her depression, and the fact that she had lost custody
¶528of Jordan’s twin and their older half-brother. So Johnson was
¶529afforded a “thorough and sifting” cross-examination of Cole as a
¶530general matter. And as to the specific topics of Cole’s depression and
¶531her loss of custody, the trial court allowed Johnson to question Cole
¶532about both. The only limitation the court imposed on these topics
¶533was on questioning, related to the hospital visit during which
¶534 31 Johnson reported his concerns about Cole’s depression, which could
¶535have created a false impression about the cause of the hospital visit.5
¶536This limitation was well within the trial court’s discretion. See
¶537Lucas, 303 Ga. at 138-139 (2).
¶538 The trial court also prohibited Johnson’s counsel from
¶539questioning Cole about her purported dishonesty about the
¶540paternity of the twins’ half-brother. But although Johnson correctly
¶541notes that “[t]he credibility of a witness may be attacked by any
¶542party,” OCGA § 24-6-607, a defendant does not have carte blanche
¶543to question a witness on issues of marginal relevance that are
¶544intended primarily to impugn the witness’s character or motives.
¶545See Lucas, 303 Ga. at 138-139 (2) (trial court did not abuse
¶546discretion by prohibiting cross-examination of prosecution witness
¶547on his immigration status); Nicely v. State, 291 Ga. 788, 795-796 (4)
¶548(733 SE2d 715) (2012) (trial court did not abuse discretion by
¶549 5 The trial court sought to prevent questioning that might have falsely implied that the trip to the hospital resulted from Jordan’s twin brother’s fall from a chair while unattended, when the actual reason for the trip was his severe constipation. 32 prohibiting cross-examination of prosecution’s medical expert about
¶550a purported “understanding among some Georgia medical
¶551examiners that one will not testify ‘against’ the findings of another”).
¶552The trial court did not abuse its discretion in prohibiting Johnson
¶553from probing into Cole’s purported dishonesty about the paternity of
¶554her twins’ half-brother. See Lucas, 303 Ga. at 138-139 (2).
¶555 Johnson’s claim that he was improperly limited in his ability
¶556to cross-examine Cole therefore fails.
¶557 6. Johnson contends that the trial court erred in allowing the
¶558medical examiner to testify about confessions in child-abuse cases,
¶559because that subject was outside the field in which he was qualified
¶560as an expert. Dr. Gowitt testified on direct examination that he had
¶561been involved with at least 200 cases involving fatally abused
¶562children, and that he had done consulting work for defendants in 40
¶563to 50 such cases. He testified that in “about half” of the cases, the
¶564defendant had confessed to the abuse; that “perpetrator confessions
¶565are something that we read frequently” when doing defense work;
¶566and that he was familiar with “many articles” in the “pediatric
¶567 33 forensic literature” on confessions by perpetrators of fatal child
¶568abuse. Dr. Gowitt testified that, based on his experience and
¶569knowledge of the literature, the “majority” of those who confessed
¶570“admit that they lost their temper.” At this point, defense counsel
¶571objected based on relevance, but the court overruled the objection.
¶572 Johnson now claims that the court erred in admitting this
¶573testimony because it was outside the scope of forensic pathology.6
¶574But because Johnson did not object on this basis at trial, we review
¶575this claim only for plain error. See Mann v. State, 307 Ga. 696, 704
¶576(2) (e) (838 SE2d 305) (2020). “To show plain error, an appellant
¶577must show that (1) the alleged error was not affirmatively waived,
¶578(2) it was obvious beyond reasonable dispute, and (3) it affected the
¶579appellant’s substantial rights, which ordinarily means showing that
¶580it affected the outcome of the trial.” Moore v. State, 315 Ga. 263, 272-
¶581273 (4) (882 SE2d 227) (2022).
¶582 6 Johnson also asserts that he had no pretrial notice that Dr. Gowitt’s testimony would exceed the scope of his expert qualifications. But because we conclude below that the testimony was within the scope of Dr. Gowitt’s qualifications, no such notice was required. 34 Given Dr. Gowitt’s direct experience with confessions in child-
¶583abuse cases and his knowledge of the medical literature on the topic,
¶584we see no obvious error in the trial court’s allowing him to testify on
¶585this subject. See Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d
¶586220) (1988) (no error in allowing expert to testify on a subject that
¶587“was within the scope of his field according to his testimony”). And
¶588whether or not allowing this testimony was obvious error, Johnson
¶589has not shown how allowing the testimony, which fills scarcely two
¶590of the almost 100 transcript pages of Dr. Gowitt’s testimony, affected
¶591Johnson’s substantial rights. This claim is without merit.
¶592 7. Johnson contends that the trial court erred in excluding
¶593testimony from a private investigator about his unsuccessful efforts
¶594on behalf of the defense to locate and serve a subpoena on the
¶595medical fellow who had assisted in the hospital’s investigation into
¶596possible child abuse.
¶597 Before trial, the defense apparently had tried to locate the
¶598medical fellow who had helped conduct interviews with Jordan’s
¶599family members and had written a report with conclusions, which
¶600 35 Dr. Messner reviewed and approved. According to the defense, the
¶601medical fellow was no longer employed with the hospital, and they
¶602could not find her. Noting that both Dr. Messner and Woodard had
¶603referred to “the information [the fellow] would have in this case,” the
¶604defense argued that it needed to “demonstrate to the jury that we
¶605did make attempts to track her down because we wanted to know
¶606what she had to say.” The State objected, noting among other things
¶607that the defense had failed to ask for a material-witness subpoena
¶608for this witness, see OCGA § 17-7-191 (setting out a process by which
¶609a criminal defendant may apply to “obtain subpoenas for such
¶610witnesses as he deems material for his defense”), and that there was
¶611no evidence she had been intentionally evading a subpoena. The
¶612trial court excluded the testimony but noted that the defense would
¶613be allowed to comment on the State’s failure to present the medical
¶614fellow as a witness.
¶615 Johnson now claims that the exclusion of this evidence violated
¶616his due process rights, but in support of this argument he cites only
¶617 36 two provisions of the Evidence Code that plainly do not apply. 7
¶618Particularly given the defense’s failure to avail itself of the statutory
¶619process for securing the attendance of material witnesses, see id., we
¶620see no abuse of discretion in the trial court’s refusal to allow
¶621testimony on this ancillary topic.
¶622 8. Lastly, Johnson contends that the trial court committed
¶623plain error by failing to give a jury instruction on accident. See
¶624OCGA § 16-2-2 (“A person shall not be found guilty of any crime
¶625committed by misfortune or accident where it satisfactorily appears
¶626there was no criminal scheme or undertaking, intention, or criminal
¶627negligence.”).
¶628 In his written requests to charge, Johnson asked for an
¶629instruction on the affirmative defense of accident. At the charge
¶630conference, defense counsel argued that “our defense is that we don’t
¶631know what happened. There’s not enough evidence to rule out.
¶632 7 Johnson cites OCGA §§ 24-8-804 (a) (5) (providing that a hearsay declarant is “unavailable as a witness” if he is absent from the hearing and the proponent of his statement “has been unable to procure [his] attendance”) and § 24-9-923 (regarding authentication of recordings and like evidence), neither of which would have offered a basis for the private investigator’s testimony. 37 There’s certainly not enough to prove—to prove an intentional act.
¶633And we think that there’s not enough evidence to rule out accident.”
¶634But the trial court noted that binding precedent required the
¶635defendant to admit to committing the act that caused the victim’s
¶636death and thus ruled the instruction would not be given. Johnson’s
¶637counsel relented and said, “OK. No objection.” Johnson now
¶638contends that the failure to instruct the jury on accident was plain
¶639error. See OCGA § 17-8-58 (b) (where a party fails to object to the
¶640omission of a jury charge, such omission may be reviewed only for
¶641plain error).
¶642 The court’s refusal to give an accident instruction was
¶643consistent with the law in effect at the time of trial, which held that
¶644the accident defense “generally requires an admission by the
¶645defendant that [he] committed the act that caused the victim’s
¶646death.” Kellam v. State, 298 Ga. 520, 522 (2) (783 SE2d 117) (2016)
¶647(citation and punctuation omitted). But when we review jury
¶648instructions for plain error, we look to the law in effect at the time
¶649of our review. See Lyman v. State, 301 Ga. 312, 317 (2) (800 SE2d
¶650 38 333) (2017) (in the review of asserted plain error under OCGA § 17-
¶6518-58 (b), “whether an error is “clear or obvious” is judged at the time
¶652of the appellate court’s review). And current law is clear that “[a]
¶653criminal defendant is not required to ‘admit’ anything, in the sense
¶654of acknowledging that any particular facts are true, in order to raise
¶655an affirmative defense.” McClure v. State, 306 Ga. 856, 857 (834
¶656SE2d 96) (2019). So the reason the trial court gave for refusing to
¶657instruct on accident is not correct under current law. And because
¶658Johnson’s testimony about the headboard incident offered some
¶659evidence—albeit slight—from which the jury might have found that
¶660Jordan’s injuries resulted from an accident, we must conclude that
¶661the failure to give an accident instruction was an error that is
¶662“obvious beyond reasonable dispute.” Moore, 315 Ga. at 272 (4). See
¶663Sullivan v. State, 308 Ga. 772, 778-779 (2) (843 SE2d 411) (2020) (to
¶664warrant the giving of a requested jury charge, the evidence
¶665supporting the theory of the charge need only be “slight”).
¶666 Nonetheless, this error was unlikely to have “affected the
¶667outcome of the trial.” Moore, 315 Ga. at 273 (4). Johnson’s primary
¶668 39 theory at trial was not that Jordan’s injuries resulted from an
¶669accident, but that someone else—most likely Cole but possibly
¶670anyone else who had contact with Jordan in the 24 hours before the
¶671911 call—inflicted the injuries that caused her death. And although
¶672Johnson offered up the headboard incident as a possible explanation
¶673for Jordan’s injuries, testimony from all of the medical experts—
¶674including Johnson’s—established that Jordan’s injuries were the
¶675result of “considerable force” that was plainly inconsistent with
¶676Johnson’s description of the headboard incident. For this reason,
¶677Johnson has failed to establish plain error. See Sullivan, 308 Ga. at
¶678778-780 (2) (failure to give accident instruction was harmless where
¶679evidence of accident was contradicted by other evidence, including
¶680expert testimony, that strongly supported a finding of intentional
¶681conduct); Thomas v. State, 297 Ga. 750, 753 (2) (778 SE2d 168)
¶682(2015) (no plain error in trial court’s refusal to give an instruction
¶683on accident). See also McClure, 306 Ga. at 866-867 (Nahmias, P.J.,
¶684concurring) (noting that failing to give an instruction on an
¶685alternative defense supported by “only the slightest evidence” will
¶686 40 likely be harmless and “almost certainly will not amount to plain
¶687error”). 8
¶688 Judgment affirmed. All the Justices concur.
¶689 8 In our analysis, we have assumed that the trial court erred by admitting the pre-autopsy photograph and held that the trial court committed a clear and obvious error by declining to instruct the jury on accident. Johnson has not claimed cumulative error and therefore has not made any specific argument as to why these two errors in combination prejudiced his defense. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who wishes to take advantage of the [cumulative error rule] should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.”). In any event, “we discern no apparent cumulative prejudice on this record.” Prickett v. State, 314 Ga. 435, 445 (3) n.8 (877 SE2d 573) (2022). 41