PERRY -- Houston County Superior Court Judge Katherine K. Lumsden declared a mistrial Tuesday in an alleged shaken baby murder trial after jurors were unable to reach a verdict.
Andre Martin, 30, of Centerville, was accused of so violently shaking his 6-week-old daughter Nov. 16, 2009, that she died from injuries to her brain within 24 hours.
Martin was embraced by family members and friends after the mistrial was declared.
Bernadette C. Crucilla, a Macon attorney representing Martin, expressed disappointment with the result because she felt that reasonable doubt was created by the defense case. But she was also optimistic, she said, in that most of the jurors appeared to be in agreement with that. A note was given to the judge earlier from jurors that indicated they were split toward acquittal.
Crucilla said she counted the outcome as a win.
Julia C. Bowen, the lead prosecutor on the case, said a decision has not yet been made as to whether the case will be retried. She expects to confer with District Attorney George Hartwig, as well as Dan Bibler who prosecuted the case with her.
Bowen said she still feels strongly that Martin is guilty.
After declaring the mistrial, Lumsden agreed to a defense motion to allow Martin and his wife to again live together as a family. They have a 4-year-old. Martin also has a 10-year-old from a previous marriage. However, Lumsden also ruled that Martin could not have unsupervised visits with other children with the case unresolved.
“I’m going to go get my babies,” Martin told family and friends aloud in the courtroom after the court recessed. Martin had been limited to supervised visits with his children for the past two years while free on a $15,000 bond.
Martin faced life in prison if convicted of malice or felony murder. Mid-afternoon Tuesday, jurors had split 9 to 3 on malice and felony murder charges with the majority in favor of acquittal, according to the note from jurors given to the judge.
The jury was also split 7 to 5 in favor of acquittal on the other charges of cruelty to children, aggravated battery and aggravated assault, according to the note that was read aloud into the court record outside of the jury’s presence.
Jury verdicts must be unanimous.
At 4:38 p.m., Lumsden sent a note back to jurors asking if they were making any progress. The jury foreman wrote back “some but not enough where I see a unanimous decision.”
At that, Lumsden called for the jury and declared a mistrial. She had previously instructed them twice Tuesday to return to deliberations after they had reported that they were at an impasse.
The prosecution’s case was built on the premise that the death of Kindall Martin was the result of shaken baby syndrome. Shaken baby syndrome is the common name for inflicted or non-accidental head trauma.
The defense contended that the infant died of natural causes and that police and medical professionals rushed to judgment because Andre Martin told authorities he had shaken the baby in an attempt to revive her before performing CPR.
Martin was watching the infant and her then-2-year-old brother while the mother was volunteering at a church food drive, according to testimony during the trial.
Martin had placed the baby in a playpen where she slept next to the parent’s bed in the master bedroom. He heard the baby cry, came back into the room, found her on her belly, she vomited, he shook her a little bit, started CPR and called 911, according to testimony.
The case was marked by conflicting medical testimony from prosecution and defense witnesses.
During deliberations, jurors had requested clarification on the definition of circumstantial evidence. The judge re-instructed the jury on legal definitions of both direct and circumstantial evidence Tuesday morning.
Jurors also listened again to the recorded telephone conversation between a 911 operator and Andre Martin when the baby had stopped breathing. Martin was visibly distraught as the 911 tape was replayed for jurors Monday afternoon in the courtroom.
Also Monday, the jury had asked to review the medical examiner’s autopsy report as well as a second autopsy report commissioned by the defense. The request was denied. Under law, jurors may only consider testimony given by witnesses during the trial about the two autopsy reports but not review the reports themselves.
The mistrial was declared late on the second day of the second week of the trial. Jurors had begun deliberations at 1:45 p.m. Monday.
To contact writer Becky Purser, call 256-9559.