State v. Smith
| Decision Date | 13 December 2002 |
| Docket Number | No. 1999-0905.,1999-0905. |
| Citation | 780 N.E.2d 221,97 Ohio St.3d 367,2002 Ohio 6659 |
| Parties | The STATE of Ohio, Appellee, v. SMITH, Appellant. |
| Court | Ohio Supreme Court |
James J. Mayer Jr., Richland County Prosecuting Attorney, and John R. Spon, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate Supervisor, and Kelly Culshaw, Assistant Public Defender, for appellant.
{¶ 1} In April 1998, defendant-appellant, Steven Smith, met and started dating Keysha Frye. A short time later, Smith moved in with Frye and her two young daughters, Ashley, age two, and Autumn, six months. In the middle of September 1998, Frye asked Smith to move out due to his heavy drinking. However, Smith moved back in after he promised Frye that he would stop drinking. Around this same time, Smith was fired from his job and began watching Frye's children while she was at work.
{¶ 2} On September 28, 1998, Frye arrived home from work at 2:30 p.m. According to Frye's account of what occurred that afternoon and evening, she and Smith left the apartment with her two children. They ran some errands, ate dinner at Burger King, and visited one of Smith's friends, Brett Samples. While visiting Samples, Smith drank three beers and played pool. They left Samples's home at 7:30 p.m. On the way home, Smith purchased a twelve-pack of Busch Ice at a gas station and drank one of the beers in the car.
{¶ 3} Upon arriving home around 8:00 p.m., Frye locked the apartment's two outer doors. Smith changed Autumn's diaper, fed her, and dressed her in a pink sleeper. At around 10:15 p.m., Smith took Autumn upstairs and put her to sleep in her crib. Frye put Ashley to bed at 10:30 p.m. Frye went back downstairs and watched television with Smith, who drank more beer. Shortly thereafter, she and Smith went upstairs. Smith removed his cutoff shorts and red underwear, and they had sexual intercourse. Smith did not ejaculate, but Frye stated that he did not seem upset.
{¶ 4} Frye and Smith then went back downstairs, watched more television, and Smith consumed more beer. Frye went upstairs to sleep at 11:00 p.m., while Smith remained downstairs watching television. Frye checked in on her children and brought Ashley into her bed to sleep with her. Frye left Autumn in her crib. At around 3:22 a.m. on September 29, 1998, Frye was awakened by Smith, who was standing next to her bed, naked. Smith placed Autumn, who was also naked, down beside Frye in bed. Frye went to pick Autumn up and noticed that Autumn's head fell over her arm. She then placed her hand on Autumn's stomach and realized that the baby was not breathing. Frye told Smith that he had killed her baby. In response, Smith threw the alarm clock and said that the baby was not dead.
{¶ 5} Frye quickly left the apartment with Autumn and Ashley and went to the apartment of neighbors Mya Brooks and Jeff Pierce. Brooks testified that when she opened the door, Frye screamed, "[H]e killed my baby, he killed my baby, Mya help me." Frye entered the apartment with her children, and Brooks called 911. Before the ambulance arrived, Smith came to Brooks's door, asked what Frye was doing, and exclaimed that "he didn't do anything" and "why was she fucking lying." Brooks shut the door on Smith.
{¶ 6} Emergency medical personnel arrived and discovered Autumn's nude, lifeless body lying on a blanket. They observed injuries on her head and bruising around her eyes. They began CPR, and Autumn was transported to the hospital. The emergency room doctor testified that upon her arrival, Autumn had no pulse and had suffered a retinal hemorrhage. In addition to her visible bruising, the physician also stated that Autumn had bruising around her rectum and that the opening of her vagina was ten times the normal size for a baby her age — injuries that are consistent with sexual abuse. After trying to resuscitate Autumn for close to an hour, medical personnel pronounced her dead.
{¶ 7} In the meantime, shortly after EMS arrived at the scene, Pierce observed Smith throw a trash bag in a dumpster. He heard Smith say that he did not do anything and that he was leaving. Pierce told Smith to stay with him, which he agreed to do.
{¶ 8} Soon thereafter, the police arrived at the crime scene. Officers entered Frye's apartment and saw no signs of forcible entry. They found that the television had been left on and was extremely loud. Police also discovered the victim's pink baby sleeper under the coffee table and Smith's cutoffs and jeans near the couch. They also found whitish-colored material, later determined to be pieces of shredded diaper, scattered on the floor in the same area near the baby swing and sofa. Small piles of the victim's hair were found on the coffee table. The police also retrieved a garbage bag from the outside trash dumpster that contained a torn baby diaper, Smith's tee shirt, and ten empty cans of Busch Ice.
{¶ 9} Officer Joseph Dean Petrecky approached Smith, who was standing outside the apartment. Before asking him any questions, Smith told the officer, "I didn't do it, I didn't do it." Smith smelled of alcohol, was disheveled, and swayed back and forth while speaking with the officer. The officer arrested Smith for public intoxication. Later that morning, at 11:00 a.m., Smith's blood-alcohol level was tested and found to be .123.
{¶ 10} At the police station, Detective Robert Burks interviewed Smith. He told the detective that he had drunk four beers during the entire day and night. He stated that he and Frye had gone to bed at midnight and that he was awakened by Frye, who was accusing him of killing her daughter. On October 27, 1998, Smith gave police a second statement. In that statement, he changed his version of what had occurred. He told police that he had consumed three beers at Samples's house and six additional beers when he returned to the apartment. Smith said that later that evening, after they had returned home, they put Autumn to sleep in the baby swing and Ashley to sleep on the downstairs love seat. Smith also said they had had sexual intercourse on the living room couch while the two children were asleep in the same room. According to Smith, he woke up at 3:25 a.m. and, believing that something was wrong with Autumn, carried her upstairs while he yelled for Frye. At that point, Frye grabbed Autumn and accused him of killing her.
{¶ 11} On November 3, 1998, Smith signed and verified the October 27 statement. In answer to followup questions, Smith denied putting trash in the dumpster the morning of the crime and said that the cotton materials found on the living room floor were baby wipes put there by Ashley.
{¶ 12} The grand jury indicted Smith on two counts of aggravated murder, with two death penalty specifications, under R.C. 2929.04(A)(7) () and R.C. 2929.04(A)(9) (). Each count also contained a sexual motivation specification and a sexually violent predator specification.
{¶ 13} At trial, in addition to the foregoing evidence, Dr. Marvin S. Platt, the coroner who performed the autopsy, displayed autopsy photographs and slides and testified that the victim died from compression asphyxia and blunt trauma to the head. Dr. Platt found that the injuries to the victim's head and the abrasions on her forehead, cheek, and chin indicated that the victim was lying on her abdomen and that her face had been forced into a pillow. Contusions to her buttocks indicated that they were subject to pressure from the weight of another person. Dr. Platt further testified that the victim suffered subarachnoid and retinal hemorrhages consistent with shaken baby syndrome, indicating that an attempt had been made to restrain the baby. Other bruising and abrasions revealed that the baby had resisted the attack. The victim was also missing hair from the back of her head, evidence consistent with someone grasping the back of her head. Furthermore, as attested by the emergency room physician, Dr. Platt found that the victim's clitoris was red, her vagina was enlarged, and there was a hemorrhage in her anus, all indicative of attempted penetration.
{¶ 14} Forensic evidence revealed human blood on two seat cushions and on Autumn's pink sleeper. DNA tests excluded appellant as the source of the blood. However, DNA from the two couch cushions and the pink sleeper matched the victim's DNA. No semen was found.
{¶ 15} In his defense, Smith offered the testimony of Robert Forney Jr., a board-certified forensic toxicologist, to support his theory that he was intoxicated when he committed the assault. Forney testified that Smith's blood-alcohol level would have been at least .36 and possibly as high as .60 at 11:30 p.m. on September 28. According to Forney, even an alcoholic with a .28 blood-alcohol level would be intoxicated.
{¶ 16} Smith called other witnesses on his behalf who testified that he was a heavy drinker who had blacked out in the past. In addition, his former girlfriend, with whom he had a child, and his sister testified that when he watched their children, he took good care of them.
{¶ 17} The jury found Smith guilty as charged. After a penalty hearing, the jury recommended death on each aggravated murder charge. The state then dismissed the violent sexual predator specification. The trial court sentenced appellant to death on each aggravated murder count, finding that the two aggravating circumstances were not outweighed by any mitigating factors.
{¶ 18} Smith now appeals to this court as a matter of right.
{¶ 19} There are 19 propositions of law before us.1 We have repeatedly held that we need not discuss, in opinion form, every proposition of law raised in a death penalty appeal. We have fully considered...
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