Smith v. State

• Decision Date: 01 October 2009
• Docket Number: No. CR 09–106.,CR 09–106.
• Citation: 2009 Ark. 453,343 S.W.3d 319
• Parties: Marcha Jarmane SMITH, Appellant,v.STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 453

343 S.W.3d 319

Marcha Jarmane SMITH, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 09–106.

Supreme Court of Arkansas.

Oct. 1, 2009.

Butler & Green, P.A., by: Chad M. Green, Little Rock, for appellant.Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.JIM HANNAH, Chief Justice.

Marcha Smith appeals his conviction for capital murder and sentence of life without parole. He asserts five errors on appeal. We affirm the conviction and sentence. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2).

On April 7, 2007, Smith called his girlfriend Jasmine Martin several times and asked her if he could care for her two-year-old daughter LB that evening. Martin agreed. At about seven p.m., Smith picked up LB from Martin at a baby shower she was attending. Smith promised Martin he would keep LB for a few hours and then return her. When the baby shower ended at about ten p.m., Martin called Smith, asking that he return LB. He told Martin that he was getting a cousin to bring him to Martin's house and would return LB shortly. Smith did not show up, so Martin again called him, and he told her he would be there soon. Smith had not arrived by midnight, so Martin called him yet again. This time, Smith told her that LB was asleep, and he refused to wake her to talk to Martin. Calls continued until about four o'clock in the morning. At that time, Smith again promised to return LB, but he did not do so. At about seven a.m., Martin received a call from Smith's cousin Toni who promised to pick LB up and bring her home on the way to church. However, Toni called back shortly afterward to tell Martin that LB had stopped breathing and was being taken to the hospital.

Jefferson County Regional Medical Center (JCRMC) emergency room physician Dr. John Skowronski provided care to LB from her arrival until she was transferred to Arkansas Children's Hospital in Little Rock. LB came under JCRMC's care at nine thirty-three a.m. At that time, she was in full cardiorespiratory arrest, her pupils were dilated and fixed, and she was limp and unconscious. She was resuscitated and put on a ventilator. In the course of an examination, Dr. Skowronski observed that LB had multiple bruises on her legs, some of which were so large that they extended up onto her abdominal wall. She also had blood under the skin around her eyes. Dr. Skowronski concluded upon examination that she had abdominal distension caused by blood or other fluid in her abdomen. Upon further examination, and prior to inserting a catheter, Dr. Skowronski noted a tear in LB's vagina.

David DeFoor, a detective with the Pine Bluff Police Department, was working off-duty at JCRMC when LB arrived. DeFoor asked Smith what had happened. Smith reported to DeFoor that he was about to give LB a bath in preparation to take her to church when she urinated on herself, and he “popped her a couple of times on the backside.” Smith stated that LB took off running, slipped, fell, and hit the back of her head. Smith further told DeFoor that when he put LB in the tub for her bath, she passed out, and he brought her to the hospital because she was not breathing. Smith later added to his story that LB had passed out the night before and also stopped breathing for a few seconds but recovered and seemed fine. He later denied having said this to DeFoor.

LB was transferred to Children's Hospital later that day, but passed away the next day. The autopsy revealed a number of recent injuries associated with her death. She had an abrasion to her left cheek, bruising to her forehead, two small abrasions beneath her chin, a small abrasion to her scalp, and a small abrasion to her right back. Additional abrasions were found on her back. Two patterned abrasions indicated that she was struck with an object that left an impression. Both of LB's thighs were almost completely encircled in contusions of ten to eleven inches. Additionally, she suffered blunt injury to her torso that caused hemorrhage and damage to her pancreas. Most significantly, LB suffered a fracture to the back of her head that was caused by her head hitting or being hit by a solid object at an accelerated speed. The injury was characterized by the medical examiner as “severe.” The blow caused her brain to shift within her skull. Hemorrhaging was present within her skull as a consequence of the trauma and fracture. She also suffered hemorrhages to the back of both eyes, likely caused by the blow she suffered to her skull.

Medical Examiner Dr. Adam Craig testified that LB's death was caused by multiple blunt force injuries. He opined that the injuries to the head would have caused LB immediate unconsciousness, although she might have then regained consciousness for a time. Ultimately, her injuries would have caused swelling within her skull that would have in turn caused cardiorespiratory arrest. According to Dr. Craig, the swelling of her brain finally shut down respiration, and that was a cause of death. He compared the force causing the injury to her falling two or three stories and opined that it was not an injury the child could have caused herself by slipping and falling.

Martin testified that she had bathed LB the day before she let Smith take her, and that when she gave LB to Smith, she had no bruises of any form anywhere, that she had no bumps or injuries of any form, and that she had no vaginal discharge or bleeding. Martin's mother, Cynthia Johnson, testified that Martin and LB lived with her and that she had seen LB before the baby shower. According to Johnson, LB had no injuries or bleeding; however, she did testify that on a prior occasion when LB had stayed with Smith, she suffered a cigarette burn behind one ear. Smith's brother Brian Stovall testified that he and Smith were alone with LB at Smith's house. According to Stovall, he saw LB when she arrived and throughout the evening. However, after she was put to bed, aside from peeking in on her about ten p.m., he did not see her until he was awakened the next morning by Smith in a panic that she was ill. According to Stovall, LB was fine when put to bed. He testified that he heard nothing during the night.

Smith testified that to his knowledge, LB was okay when he picked her up from Martin. He stated that she hit her lip on a door that night and suffered some bleeding that he wiped off with his T-shirt, an injury that was not found in her examination and autopsy. According to Smith, he put her to bed and awoke when she needed to use the bathroom around five a.m. Smith reported that he took her to the bathroom, but she dawdled, and he returned to sit on the bed, where he fell asleep. He next was aware of her at seven-thirty a.m. when he awoke and found her asleep on the couch with the front door cracked open. Smith stated in his testimony that he checked on her at that time and she was sleepy, so he put her back to bed where she remained for about ten minutes. According to Smith, after ten minutes, she got up and came into the kitchen. He testified that she urinated on the floor, and he “spanked her on the butt twice” while telling her to go to the bathroom. Smith stated that in response, she started running, ran around the table, and slipped and hit the back of her head. According to Smith, she did not cry after hitting her head, and he put her in the tub while he brushed his hair. Again according to Smith, LB “leaned back against the back of the tub and took a deep breath and her head dropped.” He reported that she was not responsive, so he removed her from the tub, took her to the living room and could not find a pulse. He stated that he then woke up his brother, and they got neighbor Sylvia Jones who helped him transport LB to the hospital.

Police seized physical evidence at the home, including flowered panties found on the couch and a bloody tissue found in a bathroom trash can. Further, the clothing Smith wore to the hospital was seized.

Sufficiency of the Evidence

For his first point on appeal, Smith asserts that the circuit court erred in denying his motion for a directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Flowers v. State, 373 Ark. 119, 121, 282 S.W.3d 790, 792 (2008). A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. Id. at 121, 282 S.W.3d at 792. Substantial evidence is evidence of sufficient force and character that without resorting to speculation and conjecture compels with reasonable certainty a conclusion one way or the other. Id. We review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.

Smith is accused of causing the death of a person fourteen years of age or younger under circumstances manifesting extreme indifference to the value of human life. See Ark.Code Ann. § 5–10–101(a)(9)(A) (Supp.2005). He is accused of knowingly battering two-year-old LB so severely that she died. No witness the State presented saw the events that injured LB; therefore, the State relied solely upon circumstantial evidence.

Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Jackson v. State, 363 Ark. 311, 316, 214 S.W.3d 232, 235 (2005). Direct evidence is evidence that proves a fact without resort to inference, when for example, it is proved by witnesses who testify to what they saw, heard, or experienced. Id.

Guilt in a criminal case can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Id. at 316, 214 S.W.3d at 236. However, regardless of whether evidence is direct or circumstantial, it must meet the requirements of substantiality. Id. It must force the fact finder to reach a conclusion one way or the other without resort to speculation or conjecture. Id. Additionally, where circumstantial evidence alone is relied upon, it must...