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McFolley v. State

The expert's testimony that the 6-month-old victim died from shaken baby syndrome, being hit on the head and child abuse did not go to the ultimate issue in the case-the person responsible for the abuse.

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Following a jury trial, Derek McFolley appeals his convictions for felony murder and cruelty to children, contending that he received ineffective assistance because his trial counsel failed to object to expert testimony on the ultimate issue in question.1 For the reasons set forth below, we affirm. In the light most favorable to the verdict, the record shows that McFolley and Elizabeth Henderson were the parents of six-month-old Demarcus McFolley “the baby”. McFolley generally took care of the baby while Henderson worked. On June 7, 2004, while in McFolley’s sole care, the baby went into cardiac arrest. McFolley’s neighbor called 911, and, when paramedics arrived, the baby was nonresponsive and had a frothy pink substance exuding from his nostrils. The baby was then taken to the hospital, but died several days later.

An examination revealed that the baby had received a skull fracture to the back of his head, retinal hemorrhages, and bleeding around the brain. The State’s medical examiner determined that these injuries were caused by violent shaking and hitting the baby’s head against a flat surface with considerable force. The medical examiner also testified that these injuries would have quickly rendered the baby unconscious, and they could not have been the result of regular play. To the contrary, the medical examiner testified that the injuries had not been caused by accident. As part of the autopsy examination, the medical examiner also discovered that the baby had suffered a broken rib in the weeks before the fatal injury.

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