State v. Smith

• Decision Date: 04 September 2001
• Docket Number: No. COA00-616.,COA00-616.
• Citation: 551 S.E.2d 889,146 NC App. 1
• Parties: STATE of North Carolina v. James Russell SMITH, Jr.
• Court: North Carolina Court of Appeals

551 S.E.2d 889

146 NC App. 1

STATE of North Carolina v. James Russell SMITH, Jr.

No. COA00-616.

Court of Appeals of North Carolina.

September 4, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General Steven M. Arbogast, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant.

HUNTER, Judge.

James Russell Smith, Jr. ("defendant") appeals the trial court's judgment convicting him of the second degree murder of his wife's two-year-old daughter, Amanda. We hold that the trial court erred in failing to grant defendant's motion to dismiss because the State failed to present substantial evidence that defendant had the necessary malice to sustain a second degree murder conviction. Therefore, we reverse and remand.

The evidence presented at trial tended to show that on 21 November 1998, defendant married Angelene Smith ("Angie"). At the time of the incident in question, the couple had one child born of their relationship, and three other children (including Amanda) from prior relationships living with them. Because defendant worked first shift (6:00 a.m. to 3:30 p.m.) and Angie worked second shift (4:00 p.m. to 12:00 midnight), it was customary for defendant to care for the children while Angie was at work, and for Angie to care for the children while defendant was at work.

On Monday, 7 December 1998, Amanda was ill, and Angie left her in the care of defendant. On Tuesday, 8 December, Amanda threw up, and "defendant bathed and cleaned up Amanda." Later, Angie noticed a bruise on Amanda's forehead and asked defendant how it came to be. Defendant told Angie that Amanda fell off the toilet in the bathroom and bumped her head. On Wednesday, 9 December, Amanda was still ill. Angie cared for her during the day and left her in defendant's care that evening. When Angie returned home after midnight that same night, she did not check on Amanda. After she and defendant went to bed, Angie got up during the early morning hours on 10 December and went to get her infant daughter, Angelica, bringing her back to bed with herself and defendant. Later, when the alarm clock rang at 5:30 a.m. for defendant to go to work, Angie woke defendant who then got up, got dressed, and after checking on Amanda, came back into the bedroom and told Angie that Amanda was dead. Both of defendant's sons were also in the home the night of the incident.

At trial, the State asked Angie if she had ever noticed any bruises on Amanda and, if so, whether she had inflicted them. In response, Angie testified that the day before she married defendant she noticed "purplish" bruises on both of Amanda's arms. She stated, "[i]t looked like somebody had grabbed her." Angie further testified that she noticed a yellow "bruise on [Amanda's] butt[ocks]" a few days after the wedding. Angie also stated that she noticed Amanda's "eyes were black and blue" on or about 3 December 1998. Angie stated that, although she asked defendant about the bruises on Amanda's arms and buttocks, she did not ask about Amanda's black eyes. She testified that she never inflicted any injuries on Amanda and that, aside from the bump on the forehead, these were the only bruises she had ever noticed on Amanda.

Angie further testified that the Department of Social Services ("DSS") had intervened in her relationship with Amanda in response to a report that she abused Amanda by violently grabbing Amanda's arm. However, as to this report of abuse, Angie testified that "[t]here is no evidence showing that I had done that at all. [DSS] was just assuming that I had grabbed her by her arm. I did not do that." Angie did testify that prior to the time that defendant moved in with her she noticed "bruises on [Amanda's] legs." Angie told several people that she did not believe defendant hurt the child; however, Angie testified that at the time defendant told her of Amanda's death, he stated, "they['re] going to come and get [me]."

Kim Barkhurst, the DSS child abuse investigator, testified that she met Angie and defendant when she began investigating another DSS employee's (Deana Smith) complaint of abuse against Angie. Ms. Barkhurst stated that Ms. Smith had filed a report of abuse against Angie in which Ms. Smith stated "not only had she seen [Angie] jerk [Amanda]'s arm, but ... also ... that she had seen [Angie] pop [Amanda] in the face and on the leg" while the two were in Ms. Smith's office. Ms. Barkhurst further testified that Angie ignored Amanda during a visit to defendant and Angie's home, and defendant seemed resentful of Ms. Barkhurst's being there.

Lisa Mendez, one of Angie's supervisors at work, testified that Angie called work on the morning Amanda died, sounding like her "normal self," to say she would not be in to work that day. When Ms. Mendez asked why she was not coming to work, Angie said, "my baby's dead." However, Ms. Mendez further stated that Angie told her she had not checked on Amanda nor had she called 911. Ms. Mendez advised Angie to hang up the phone with her and to call 911. Ms. Mendez testified that she was disturbed by her conversation with Angie, and that she called the sheriff's department that same day "asking to speak to someone that was in charge of the case." Ms. Mendez "attempt[ed] to report the phone call that [she] received or the things that [she] observed to the authorities[.]" However, when she "did speak to someone, ... they told [her] they had all the information that they needed, thanks for calling."

Molly Malden, another of Angie's co-workers, testified that when she met Angie approximately one to two weeks after Amanda died, Angie "was real bubbly and giddy, and... reminded [her] of a teenager." Ms. Malden further testified that she never saw Angie upset about Amanda's death even though she and Angie spent a great deal of time together. Ms. Malden testified that Angie would get upset only when a police officer or detective would come by her job and talk to her. Ms. Malden testified that, after such incidents, Angie would say "that she was going to go to jail, or she was going to be arrested.... They were going to come and take her on her job and take her to jail." Ms. Malden further stated, "they thought that she was guilty of having something to do with the-with the death of the child." The one time Ms. Malden saw Angie dressed up, Angie said that "she was celebrating" and that "she had made some decisions, that she was going back to school, she had signed over custody to Social Services to have her [other] baby adopted, and that she was getting on with her life, that it was time for her to do that."

Christina Alexander (one of Angie's neighbors) testified that she met Angie in February 1997 and that they became friends, spending a great deal of time together with their children. It was her perception that Angie and Amanda had a good relationship at times. However, Ms. Alexander noted that sometimes Angie would mistreat Amanda by slamming her down on the couch, yanking her by the arms, or smacking her in the face. Also, she noted that Amanda would have bruises on her upper arms and legs. Finally, she testified that Angie would treat Amanda this way when she became angry and not for disciplinary reasons. Ms. Alexander had contacted DSS about Angie's treatment of Amanda.

Deana Smith was Angie's case worker at the Alamance County Social Services office. Ms. Smith made the initial call to Child Protective Services after a visit with Angie and Amanda at her office in August 1998 for a case review. During that meeting, Amanda began acting up and Ms. Smith observed Angie jerk Amanda by the arm, pop her on the mouth, and slap her on the leg. Ms. Smith testified that Angie seemed frustrated and angry with Amanda and that they did not have a normal mother-child relationship.

On cross-examination by the State, Ms. Smith admitted that Amanda would not obey Angie and acted in an uncontrollable manner. Furthermore, she agreed that the only way for Angie to keep Amanda under any semblance of control was for her to grab and hold onto Amanda. Finally, Ms. Smith testified that she did not notice any bruises on Amanda, despite the fact that Amanda was wearing an outfit that left her arms and legs bare, and that she would have noticed if there had been any bruises due to Amanda's close proximity in the office.

Dr. Thomas Clark, the forensic pathologist who performed the autopsy on Amanda, testified for the State that during his external examination of Amanda he found "bruises of varying ages distributed over the body from the top of the head to the legs, and even one on the foot." "The shape and distribution of the bruises was [sic] often in a pattern suggestive of an adult hand." Regarding his internal exam of Amanda, Dr. Clark stated that the brain was bloody and that "there was blood present on both sides of the brain." He testified that any blood in this space is abnormal and that the brain was bruised. Also, Dr. Clark noted the presence of blood in the retinas of Amanda's eyes and that "[t]he presence of blood in the retina is almost always a result of injury." He testified that this indicated that Amanda suffered injury to the head.

Additionally, Dr. Clark explained that shaken baby syndrome "includ[es] the presence of subdural hemorrhage in the head, the presence of retinal hemorrhages in the eyes, and optionally, the presence of hemorrhage within the spinal cord," of which Amanda had all three. He testified that these injuries occur from the violent shaking of a child "so that the head snaps back and forth enough that blood vessels are ruptured, causing the bleeding within the eyes and ... surrounding the brain." Furthermore, he stated that he found bruises on Amanda's head and all over her body indicating the occurrence of blunt force injury. He then concluded that blunt force injury played a significant role in Amanda's death and that shaking probably...