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Final Copy 290 Ga. 459 S11A1358. MURPHY v. THE STATE. HUNSTEIN, Chief Justice. Appellant Timothy Murphy was convicted of malice murder, felony murder, and cruelty to children arising out the death of 15-month-old Tytanna Jackson on September 19, 1998.1 Murphy appeals the denial of his motion for new trial alleging that the trial court committed plain error by making a number of improper statements during the course of the trial and by failing to sever his trial from that of his co-defendant. Because the trial court's favorable comments regarding one of the State's witnesses could have been construed by the jury as

The crimes occurred on September 18, 1998. Murphy was indicted in Muscogee County on charges of malice murder, two counts of felony murder, aggravated sexual battery, and cruelty to children. The counts related to aggravated sexual battery were dead docketed. He was found guilty of malice murder, felony murder, and cruelty to children and he was sentenced on April 12, 2000 to life imprisonment for malice murder and a consecutive 20-year sentence for cruelty to children. He filed an out-of-time motion for new trial on June 27, 2005. The trial court denied the motion on September 7, 2010 and Murphy appealed. This Court dismissed his appeal on November 1, 2010, ruling that the motion for new trial was untimely. Murphy again filed an out-of-time motion for new trial. The request was granted on December 23, 2010, but the motion was denied on April 14, 2011. Murphy filed his notice of appeal on April 21, 2011. The appeal was docketed for the September term in this Court.

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bolstering that witness' testimony, we must reverse and remand for a new trial.2 Viewed in the light most favorable to the verdict, the jury was entitled to find that in the early morning hours of September 19, 1998, emergency medical personnel were dispatched to the home of Carmen Jackson, where Timothy Murphy lived with Jackson and her two children. When responders arrived, they found Jackson's 15-month-old daughter, Tytanna, not breathing and without a pulse. She was cold to the touch and had fixed and dilated pupils. Though emergency responders and emergency room doctors tried to revive the child, she was pronounced dead shortly after arriving at the hospital. Murphy and his co-defendant, Jackson, testified that Murphy had been babysitting Tytanna that day while Jackson was at work. When Jackson arrived home around 8:30 p.m., she checked on Tytanna, who was sleeping and seemed to be fine. Around midnight, Murphy heard the child whining and found her

We note that blame for the inordinate delay in the litigation of the motion for new trial in this case appears to be shared among the trial court, defendant, defense counsel, and the State. As a result of the delay, the parties are now faced with the difficult task of reconstructing evidence more than 13 years after the crimes were committed. Not only is it difficult to locate witnesses many years after the fact and for those witnesses to remember important details, but in some cases, substantive law may even change during the period of delay. 2

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limp and struggling to breathe. The pair testified that Murphy instructed Jackson to call 911 while he administered CPR. Expert testimony at trial established that the child had been beaten so severely that her pancreas and duodenum were ruptured and that the contents of her intestines leaked into her abdomen. The child died of toxic shock two to four hours after those injuries were inflicted. Medical examiners also noted multiple contusions on Tytanna's face, scalp, back, abdomen, and leg. She also had two broken ribs and penetration wounds to her vagina and anus. Both

Murphy and Jackson testified that no one else had been alone with the child during the week leading up to her death. 1. We find this evidence sufficient to enable a rational trier of fact to find Murphy guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Murphy alleges that two of the trial court's remarks during the testimony of police officer Andrew Tyner improperly conveyed an opinion regarding the credibility of that witness. Specifically, during the officer's testimony regarding the contents of Murphy's statement to police, the trial court stated in response to an objection, "You're asking this Detective, who is a good 3

detective, what is in someone, somebody else's head." Further, the trial court stated, "[T]his man has worked a lot of cases and he's got a recollection and he's got a written memorandum and hopefully between the two of those and his good efforts we're going to find the truth of the matter." OCGA

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