Smith v. the State (two Cases)., s. S10A1281

• Decision Date: 14 December 2010
• Docket Number: Nos. S10A1281,S10A1282.,s. S10A1281
• Parties: SMITHv.The STATE (Two Cases).
• Court: Georgia Supreme Court

288 Ga. 348
703 S.E.2d 629
10 FCDR 3607

SMITH
v.
The STATE (Two Cases).

Nos. S10A1281

S10A1282.

Supreme Court of Georgia.

Nov. 8, 2010.Reconsideration denied Dec. 14, 2010.

[703 S.E.2d 632]

Edwin J. Wilson, Augusta, for appellant in Case No. S10A1281.Samuel J. Harris, for appellant in Case No. S10A1282.Patrick H. Head, District Attorney, John R. Edwards, Eleanor A. Dixon, Asst. Dist. Attys., Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason C. Fisher, Assistant Attorney General, for appellee.MELTON, Justice.

[288 Ga. 348] Following a jury trial in these consolidated cases, Sonya and Joseph Smith were found guilty of felony murder, involuntary manslaughter, cruelty to children, aggravated assault, false imprisonment, and reckless conduct based on the couple's treatment of their eight-year-old son, Josef, which led to the child's death.¹ In Case No. S10A1281, Sonya

[703 S.E.2d 633]

Smith claims, among other things, that the trial court erred in allowing the prosecutor to make an improper closing argument, and that her trial counsel was ineffective. In [288 Ga. 349] Case No. S10A1282, Joseph Smith claims that the evidence was insufficient to sustain his convictions; that his trial counsel was ineffective; and that the trial court erred by failing to merge his conviction for felony murder into his involuntary manslaughter conviction. For the reasons that follow, we affirm in both cases.

Viewed in the light most favorable to the jury's verdict, the record reveals that Joseph and Sonya Smith routinely disciplined their son, Josef, by beating him with glue sticks, belts, and heated coat hangers; locking him in confined spaces for extended periods of time; and tying his hands with rope. During the day on October 8, 2003, Joseph disciplined Josef several times, striking him repeatedly with a foot long glue stick. At one point, Josef began complaining of severe stomach pains and had urine that was brownish in color. Later, while Joseph was taking a shower, Sonya Smith beat Josef with a glue stick, drawing blood through Josef's clothing. Sonya and the Smiths' eldest son, Mykel Booth, then forced Josef into a wooden box, beating him about the head as they did so. Sonya and Mykel then tied the box shut with a cord. When Joseph later came out of the shower and removed Josef from the box, the child was barely breathing. Emergency services personnel were called to the Smiths' residence with an unresponsive child complaint, and Josef was taken to the hospital, where he later died. Numerous medical experts examined the extensive bruising throughout Josef's body and to Josef's head, and testified that the cause of Josef's death was either blunt force trauma or asphyxiation.

Case No. S10A1281

1. The evidence outlined above was sufficient to enable a rational trier of fact to find Sonya Smith guilty of all the crimes for which she was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Sonya contends that the trial court erred in allowing the prosecutor to dim the lights in the courtroom, bring out a cake with lit candles, and sing “Happy Birthday” to the deceased victim during her closing argument. However, Sonya failed to object to this argument by the prosecutor, and has therefore waived review of this issue on appeal. Mullins v. State, 270 Ga. 450, 451(2), 511 S.E.2d 165 (1999) (in case where death penalty is not imposed, “it [is] incumbent upon [the defendant] to raise an objection to the State's argument below in order to preserve the right to contest the propriety thereof in a subsequent appeal”). See also Paul v. State, 272 Ga. 845, 848(3), 537 S.E.2d 58 (2000) (“Plain error” rule applies only “to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17–8–57 [judge expressing or intimating [288 Ga. 350] opinion as to what has or has not been proved or as to the guilt of the accused]”).

3. Sonya argues that the trial court erred in denying her motion for a mistrial after her son, Mykel, testified that the Smiths prayed that they had not “los[t] another son” after they pulled an unresponsive Josef from the box in which he had been placed. Instead of granting a mistrial, the trial court gave a comprehensive curative instruction, informing the jury that they had to disregard the testimony and could not consider it “in any way, in any form, [or] in any fashion.”

“When a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant's right to a fair trial.” (Citation omitted.)

[703 S.E.2d 634]

White v. State, 268 Ga. 28, 32(4), 486 S.E.2d 338 (1997). It is within the discretion of the trial court to decide “whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4(2), 295 S.E.2d 315 (1982). Here, the curative instruction given by the trial court adequately preserved Sonya's right to a fair trial. Accordingly, the trial court did not abuse its discretion in denying Sonya's motion for a mistrial. See Johns v. State, 274 Ga. 23, 25(3), 549 S.E.2d 68 (2001) (this Court “must presume that the jury followed [its] instruction and disregarded the [witness'] statement”) (citations omitted).

4. Sonya contends that the trial court erred by denying her motion for a new trial because the jury's verdict finding her guilty of involuntary manslaughter as a lesser included offense of malice murder was “mutually exclusive” from the jury's verdict finding her guilty of felony murder.

Verdicts are mutually exclusive “where a guilty verdict on one count logically excludes a finding of guilt on the other.” [Cits.] Thus, the rule against mutually exclusive verdicts applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where ... verdicts of guilty and not guilty are returned. [Cit.]

Shepherd v. State, 280 Ga. 245, 248(1), 626 S.E.2d 96 (2006).

Here, the evidence authorized the jury to logically conclude that Sonya had committed several acts of abuse against her son, some of which may have been non-felony acts of abuse that inadvertently led to or contributed to her son's death (see OCGA § 16–5–3), and others that may have constituted felony cruelty to children, which would have served as the underlying basis for the felony murder conviction. [288 Ga. 351] See OCGA § 16–5–70(b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain”). The verdicts here were not mutually exclusive, and this enumeration lacks merit.

5. Sonya claims that the trial court erred by failing to properly advise her regarding her right to testify when her counsel announced that Sonya would not be testifying on her own behalf. However, in order to ensure that Sonya was making an informed decision about whether or not to testify, the trial court did thoroughly discuss with Sonya the pros and cons of her testifying on her own behalf after her counsel announced that she would not be testifying. Moreover, after the trial court engaged in this extensive discussion and asked Sonya's counsel whether anything had been left out of the discussion regarding Sonya's right to testify, Sonya's counsel replied, “I don't think you left anything out.” ² To the extent that Sonya now claims that the trial court should have said something more or something different, she has waived review of this issue by failing to object to the information that the trial court did in fact give to her. See, e.g., Bridges v. State, 279 Ga. 351(9), 613 S.E.2d 621 (2005).

6. Sonya argues that the trial court erred by overruling Joseph Smith's counsel's objection to the prosecutor asking a State's witness to rate the injuries suffered by the deceased in comparison to other cases that the witness had seen. However, because Sonya did not join in Joseph's objection at trial, or lodge an objection of her own, this issue is also waived on appeal. See Ashford v. State, 271 Ga. 148(2), 518 S.E.2d 420 (1999).

7. Sonya urges that the trial court erred in refusing to admit into evidence at the motion for new trial hearing a Court TV video recording of the prosecutor's closing argument. However, to the extent that Sonya wished to use the video to supplement the official trial transcript and shed additional light on the trial proceedings, she failed to follow the proper procedures to make the video part of the official court record. See

[703 S.E.2d 635]

OCGA § 5–6–41(f) ( “Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth”). Accordingly, we find no abuse of discretion in the trial court's decision to exclude the videotape.

8. Sonya claims that her trial counsel was ineffective because [288 Ga. 352] (a) counsel failed to have voir dire recorded, (b) counsel failed to object to the prosecutor asking a witness to compare the victim's injuries in this case to others that he had seen, (c) counsel failed to object to Joseph Smith's counsel asking a State's witness about the severity of the victim's injuries, (d) counsel failed to object to references at trial to a court ruling regarding the custody of the Smiths' remaining children, (e) counsel failed to make a record of his agreement with the prosecutor stating that evidence of the Smiths' other deceased child would not be admitted at trial, (f) counsel failed to effectively cross-examine several State's witnesses, (g)...