Smith v. State

307 Ga. 680

838 S.E.2d 321

SMITH

v.The STATE.

S19A1148

Supreme Court of Georgia.

Decided: January 27, 2020

Henry Nelson Crane, III, CRANE LAW FIRM, P.C., 211 Hudson Trace, Suite C, Augusta, Georgia 30907, Danny L. Durham, DURHAM LAW FIRM, P.C., 2560 Trade Center Drive, Evans, Georgia 30809, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joshua Bradley Smith, A.D.A., Natalie Spires Paine, District Attorney, AUGUSTA JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, 735 James Brown Blvd., Suite 2400, Augusta, Georgia 30901, Elizabeth Haase Brock, A.D.A., DEKALB COUNTY DISTRICT ATTORNEY'S OFFICE, 556 North McDonough Street, ste 700, Decatur, Georgia 30030, for Appellee.

Nahmias, Presiding Justice.

Appellant Mary Katherine Smith was convicted of felony murder based on cruelty to children in connection with the death of her two-year-old son Mason Tucker Smith, who was known as Tucker. She contends that the evidence was insufficient to support her convictions and that the trial court erred by excusing a juror and by declining to give a jury instruction on her good character. We affirm.¹

1. (a) Viewed in the light most favorable to the verdict, the evidence presented at trial showed the following. In early July 2014, Appellant, her 15-year-old daughter Jamie Smith, and her son Tucker moved in with Jeremy Kitchens and Kitchens’s parents. Kitchens had been Appellant’s high-school boyfriend, and they had reconnected about six months earlier. The children’s father had died shortly after Tucker’s birth, and Jamie was often the main caregiver for Tucker. On the morning of July 30, Appellant woke Jamie up and told her to get Tucker dressed and ready to go to day care. Tucker was enrolled in day care, although Appellant had stopped taking him regularly in recent months. Tucker vomited, however, so he stayed home with Jamie while Appellant, who was a hospice nurse, went to work. Before she left, Appellant used methamphetamine with Kitchens. During the day, Jamie and Tucker watched television downstairs, while Kitchens, who was unemployed, stayed upstairs in the bedroom he shared with Appellant. Tucker threw up a couple more times after eating, but eventually he was able to keep down some bland food.

A little after 5:00 p.m., Appellant returned home. Jamie asked if she could spend the night at a friend’s house, and Appellant agreed to drive Jamie there after making dinner. Appellant put food in the oven and went upstairs to her and Kitchens’s bedroom, where Kitchens was sitting in his recliner. Jamie brought Tucker into the room to leave him with Kitchens while she showered. Tucker whined because he did not like being left with Kitchens. During the 30 to 45 minutes that Jamie was showering, Appellant or Kitchens became upset with Tucker and ordered him to stand in the corner. Appellant then went downstairs for a few minutes to check on the food, leaving Tucker in the corner. As Appellant was returning up the stairs, she heard a thump and Kitchens yelled that Tucker was having one of his "episodes." According to Appellant, Tucker had "breath holding syndrome," and when he got upset, he would sometimes hold his breath until he passed out; during a more severe episode, his body would become rigid, like he was having a seizure.² Appellant found Tucker lying on the floor in the corner of the bedroom. Kitchens was still in his recliner. Both Appellant and Kitchens thought Tucker had hit his head on a cabinet near the corner. Appellant picked up Tucker and carried him to the bed. Kitchens saw her shake Tucker and slap him on the face trying to revive him.³

Appellant then went into the bathroom, where Jamie had just finished her shower, and wet a rag to rub on Tucker. Appellant told Jamie that Tucker had experienced another one of his breath-holding episodes and that he was okay but had hit his head on something. Appellant returned to Tucker with the rag. Jamie finished dressing and then went into the bedroom to check on Tucker; he was stiff and not responsive. Jamie then went into her bedroom to finish getting ready. Appellant sat with Tucker on the bed for a while, briefly leaving to fetch Kitchens a plate of food. Jamie returned to the bedroom and sat with Tucker for about an hour. Before she left, Tucker had become more responsive, but he seemed limp and was still lying down. Appellant or Kitchens put pillows around Tucker on the bed, and Appellant drove Jamie to her friend’s house.

During the 30 to 40 minutes that Appellant was gone, Kitchens worked on building a trundle bed in Jamie and Tucker’s bedroom until he heard Tucker, who was still on the bed in the other bedroom, throw up. As Kitchens began cleaning Tucker, Appellant returned.

Kitchens told her to "deal with this" and went to the bathroom to throw up in reaction to Tucker’s vomit. Kitchens was in the bathroom for several minutes.⁴ Appellant put an oxygen sensor on Tucker’s finger. Soon his oxygen levels dropped dangerously low, and he began gasping for breath. Appellant called 911. When the paramedics arrived, Kitchens looked upset, but Appellant seemed "unnaturally calm" and had a flat affect. At the hospital, Appellant, who was still calm, told Kitchens that she loved him and she was sorry.

Upon his arrival at the hospital, Tucker was not arousable and his pupils did not react to light, indicating that he had severe brain damage. He had bruises on his mouth, face, and scalp, including one that looked like a handprint on his cheek.⁵ Tucker had a large amount of bleeding in his brain and behind his eyes, and his brain was swollen. He was put on life support in intensive care. Three days later, he was taken off life support and died. Tucker had suffered rotational force injuries, meaning that his brain had moved in his skull, and blunt force trauma. Symptoms of these injuries, including lethargy, glazed eyes, loss of awareness, and difficulty breathing, would have been immediate. The medical examiner testified that this kind of trauma could not have been caused by a fall from standing height or from passing out; it required substantial force and likely came from a combination of a blow and shaking. She concluded that there was no plausible accidental cause for Tucker’s injuries from the history given by Appellant or from the household environment where Tucker was injured. Doctors also found that Tucker had nine healing rib fractures, which were inflicted two to four weeks earlier; the injuries were consistent with being caused by forceful squeezing, not an accidental fall.

Jamie, Kitchens, and Appellant were interviewed by investigators from the Richmond County Sheriff’s Office. The interviews were video-recorded and played for the jury. Jamie and Kitchens, who were not charged with any crimes connected to Tucker’s death, also testified at trial, giving testimony largely consistent with their interview statements; Appellant did not testify. Jamie, Kitchens, and Appellant all said that Tucker was usually punished by being told to stand in the corner and sometimes with a "pop" on his hand or diapered bottom, usually administered by Appellant but sometimes by Jamie or Kitchens. Kitchens said that a week or two before Tucker’s death, he saw Appellant slap the child’s head with the back of her hand hard enough to knock him down. Kitchens admitted that on one occasion, he had spanked Tucker on his bottom hard enough to bruise. Neither Kitchens nor Appellant could account for the rib fractures or any of Tucker’s other severe injuries. Jamie said that sometimes when she returned after being gone for a few days, Tucker would have strange bruises that Appellant did not satisfactorily explain.

Kitchens testified that he did not seek help for Tucker sooner because Appellant seemed like she had the situation under control. Appellant claimed in her interview that she was not overly concerned at first because until Tucker stopped breathing, his symptoms were the same as they had been in the prior serious breath-holding episode. Throughout her interview, Appellant remained certain in her position that Kitchens would not hurt Tucker. When Kitchens was asked at trial who hurt Tucker, he denied doing so and said, "I guess [Appellant] did."

(b) Appellant argues that the evidence that she participated in the crimes was solely circumstantial and did not satisfy OCGA § 24-14-6, which says: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." According to Appellant, the evidence did not exclude the reasonable hypothesis that Kitchens alone killed Tucker.

"Whether an alternative hypothesis raised by the defendant is ‘reasonable’ is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law."

Brown v. State , 301 Ga. 728, 731, 804 S.E.2d 16 (2017) (citation omitted).

The jury heard evidence that Appellant forcefully shook and slapped Tucker close to the time that he became stiff and unresponsive. Despite those symptoms and other serious symptoms that Tucker would have exhibited immediately after the fatal injuries, such as glazed eyes and difficulty breathing, Appellant, who is a nurse, did not immediately seek help for her child. Once she finally did get help, she did not seem upset, and she apologized to Kitchens at the hospital. Appellant also apparently did not seek medical help for Tucker when his ribs were fractured by a forceful squeezing two to four weeks before his fatal injuries, and Jamie had seen other...