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Pre-trial appeal in murder case denied
Weapon allegedly used in slaying is unknown
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A murder indictment returned against a man accused of killing the 1-year-old daughter of his girlfriend will stand, though prosecutors were unable to tell a grand jury what weapon they think was used.

Lawyers for Billy D. Nicely appealed a decision by Hall County judge to the Georgia Supreme Court, which refused to hear the pre-trial appeal, according to documents filed recently in Hall County Superior Court.

Nicely, 26, is pending trial on charges that he caused the March 2009 death of Tayore Wright, the toddler daughter of his girlfriend. The child’s mother was at work when Wright was caring for her alone in a Pine Cove Circle apartment, according to police.

Nicely reportedly told the girl’s family that he was carrying the child down stairs when she jerked backward, fell out of his arms and down the stairs.

The child died at an Atlanta children’s hospital a day later. An autopsy determined that her injuries were not consistent with a fall, police said.

A Hall County grand jury returned a murder indictment against Nicely in April. The document alleges that Nicely assaulted the girl "with an object, instrument and device, the exact type of which is unknown to the grand jury," which caused cranial cerebral trauma.

Lawyers for Nicely at the Northeastern Judicial Circuit Defender’s Office asked Judge Jason Deal to throw out the indictment, claiming that it was not valid if prosecutors could not name the weapon allegedly used, an "essential element" of the charges.

In a court hearing, prosecutors told the judge they are incapable of specifying the weapon. Medical Examiner Gerald Gowitt testified that the chid had extensive bruising to the front, sides and top of her head. Gowitt said the injuries were caused by multiple impacts from a rounded, smooth, blunt object "that was neither of great weight nor used with great force," according to court filings.

"He also testified that, based on the physical evidence, it would be practically impossible for the state to identify the object used to strike the child with any further specificity, as the object used would not have the child’s blood on it, and as there are many items consistent with the description of the object available in any household and elsewhere," Deal wrote in an order on the defense motion.

The judge found that while Nicely and his attorneys "may wish to have a more specific description of the weapon allegedly used, the indictment is nonetheless sufficient to withstand (a legal challenge), as it contains the elements of the offense intended to be charged, sufficiently apprises him of what he must be prepared to face at trial, and describes the weapon allegedly used with as much specificity as possible."

The Georgia Supreme Court, without comment, refused to hear an appeal of Deal’s decision.

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