Smith v. State

FINAL COPY

                   S19A1148. SMITH v. THE STATE.


      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 The crimes occurred on July 30, 2014. On September 1, 2015, a
Richmond County grand jury indicted Appellant for malice murder, felony
murder based on first-degree cruelty to children (for maliciously causing cruel
and excessive physical and mental pain to Tucker), felony murder based on
aggravated assault, first-degree cruelty to children, and aggravated assault.
Appellant was tried from August 15 to 19, 2016. The jury found her not guilty
of malice murder and guilty of the other charges. The trial court sentenced
Appellant to serve life in prison for felony murder based on cruelty to children
and 20 consecutive years each for cruelty to children and aggravated assault.
The court purported to merge the count for felony murder based on aggravated
assault, although it was actually vacated as a matter of law. See Malcolm v.
State, 

 (

) (1993). Appellant filed a timely
      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


motion for new trial and a motion to correct her sentence. On November 1,
2018, after a hearing, the trial court denied Appellant’s motion for a new trial
and granted her motion to correct her sentence. The court held that because
the cruelty to children and aggravated assault counts merge into the felony
murder conviction, Appellant’s convictions and sentences for those merged
crimes must be vacated, and Appellant’s sentence should be corrected to reflect
that she has been convicted only of one count of felony murder and sentenced
to serve life in prison. Appellant filed a timely notice of appeal, and the case
was docketed to the August 2019 term of this Court and orally argued on
August 20, 2019.
                                       2
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

                                  3
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



      2 Appellant had seen Tucker have only one other severe episode. She took

him to the hospital but believed the doctors did not do anything to help Tucker,
who recovered on his own. Several other witnesses, including Jamie and one of
Tucker’s day-care teachers, testified that they had seen Tucker hold his breath
to the point of passing out. After an incident at day care, the teacher called
911. Tucker was conscious by the time the paramedics arrived, and when
Appellant got to the day-care center, she said Tucker did not need to go to the
hospital. The teacher testified that after this episode, she called Tucker’s
pediatrician and was told that there was no such thing as “breath holding
syndrome.” Another doctor testified at trial that although she had heard of
children holding their breath when upset, she had never heard it called a
“syndrome.”
      3 Kitchens was interviewed three times by the lead investigator for this

case. All three interviews were video-recorded and played for the jury at trial.
In his first interview, Kitchens denied seeing Appellant shake or slap Tucker.
In the second interview, Kitchens admitted seeing Appellant shake and slap
Tucker, but said that both actions were very light. In the final interview,
Kitchens said that Appellant slapped Tucker with so much force that the child
would have been knocked down if he had been standing rather than lying on
the bed. Kitchens testified at trial that Appellant shook Tucker; he was not
asked if she slapped Tucker.
                                       4
     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.

                                 5
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


      4 During his interviews, Kitchens indicated at some points that he went

to the bathroom and threw up after Tucker fell in the corner. At another point,
however, Kitchens said that he remained in his recliner the entire time after
Tucker fell until Appellant left. At trial, Kitchens testified that he stayed in
his recliner and did not pay much attention to what Appellant did with Tucker
after Tucker fell, because he was doing a crossword puzzle on his tablet.
       5 Scale photographs of Appellant’s and Kitchens’s hands were taken and

admitted at trial, as well as a photograph of the bruise on Tucker.
                                       6
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

                                  7
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

                                  8
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.

                                  9
Brown v. State, 

 (

) (2017) (citation and

punctuation 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 unexplained injuries on Tucker when he was left in his

mother’s care. In addition, Appellant’s theory that Kitchens killed

Tucker was undermined by her certainty during her interview that

Kitchens would not hurt Tucker, and his trial testimony that he had

not harmed the child and that she must have done so. Viewed as a


                                 10
whole, this evidence was sufficient for the jury to reject as

unreasonable the hypothesis that Kitchens alone killed Tucker and

instead to find that Appellant was responsible. See Virger v. State,

 (

) (2019); Gomez v. State, 

 (

) (2017).6

     While not strong, the evidence also was legally sufficient as a

matter of constitutional due process, as a rational jury could

conclude from the evidence presented that Appellant was guilty

beyond a reasonable doubt of felony murder based on cruelty to

children. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979). See also Vega v. State, 

 (

) (2009) (“‘It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.’” (citation omitted)).



     6  Appellant argues that Kitchens was consistently in the room with
Tucker during the time when Tucker suffered his fatal injuries. Even if the
jury believed that Kitchens was involved in Tucker’s death, however, given the
evidence supporting Appellant’s culpability, the jury reasonably could have
rejected the hypothesis that Kitchens acted alone and instead found that
Kitchens and Appellant were both responsible. See OCGA § 16-2-20 (defining
parties to a crime); Virger, 

.
                                     11
     2. Appellant argues that the trial court abused its discretion

when it dismissed a juror and replaced her with an alternate on the

second day of the trial. We disagree.

     Juror A. H. and an alternate juror arrived late on the first day

of the trial after the jury was selected, delaying the proceeding by

35 minutes. The court did not specifically admonish Juror A. H. or

the tardy alternate juror, but it did remind the jurors to arrive

promptly at 9:00 a.m. during the trial. At 9:06 a.m. on the next day,

the prosecutor informed the court that Juror A. H. was late again.

The prosecutor also noted that the juror had been sleeping during a

large portion of the trial the day before. The court said that although

it had not noticed Juror A. H. sleeping, several other jurors had told

the bailiffs about her sleeping. The prosecutor moved to strike her;

Appellant objected. The court said, “We’ll give her a few more

minutes and kind of see how she does today,” noting that it had been

considering dismissing the juror sua sponte before the State made

its motion.

     After more discussion, the court said, “[I]t’s a quarter after

                                  12
9:00. Juror [A. H.], as reported by the jury clerk, has contacted the

office and said that she’s going to be on her way but since she’s 15

minutes late right now, that’s as much time as we’re going to give

[her].” The court removed Juror A. H. and replaced her with an

alternate. Appellant again objected. The jury was then brought into

the courtroom, and the trial resumed.7

      “It is well established that OCGA § 15-12-172 gives a trial

court the ‘discretion to discharge a juror and replace him or her with

an alternate at any time so long as the trial court has a sound legal

basis.’” Rivera v. State, 

 (

) (2007)

(citation omitted). See also OCGA § 15-12-172 (providing that if a

juror “dies, becomes ill, [or] upon other good cause shown to the court

is found to be unable to perform [her] duty, . . . the first alternate

juror shall take [her] place”). Juror A. H. was late for the first day of

the trial. She was again late for the second day, even after the court


      7 When Juror A. H. arrived at the courthouse around 9:25 a.m., she was

taken into custody; later that day, the trial court held a show cause hearing for
her to explain the reason for her tardiness. She said that she relied on her
boyfriend for transportation and the boyfriend had to take his brother to school
in the morning. The court did not hold Juror A. H. in contempt.
                                       13
had reminded the jury to be punctual. It was not an abuse of

discretion for the court to conclude that waiting for Juror A. H. to

arrive would unnecessarily delay the trial and that replacing her

with an alternate juror was appropriate. See Rivera, 

-

362 (holding that the trial court did not abuse its discretion by

dismissing a juror who was 30 minutes late returning from lunch

due to an ongoing hardship arranging child care). See also Brooks v.

State, 

 (

) (2006) (holding that trial

counsel did not perform deficiently by not objecting to a juror’s

dismissal because “[t]he juror’s tardiness was a sound basis for her

dismissal”); Herring v. State, 

 (

) (1997).8

      3. Finally, Appellant argues that she was entitled to a jury

instruction on good character based on testimony about her

treatment of her children. Again, we disagree.


      8 Although the trial court may have suggested that it was considering

dismissing Juror A. H. based on information that she had been sleeping during
the first day of the trial, because the actual dismissal of Juror A.H. was based
on her tardiness, we need not decide if the juror’s alleged sleeping also would
have been a valid ground for dismissing her.
                                      14
      Appellant’s adult son testified that he and Appellant had a

“very good relationship” and that she was his “go-to person.” He also

said that Appellant had “never laid a finger” on him when

disciplining him. Appellant’s mother, Kitchens, and Jamie testified

that they had never seen Appellant physically abuse her children,

although she would sometimes spank them. Based on this

testimony, Appellant submitted a request for the following jury

instruction:

            You have heard evidence of the (character of the
      defendant) (character of the defendant for a particular
      trait, more specifically ________________) in an effort to
      show that the defendant likely acted in keeping with such
      character or trait at pertinent times or with reference to
      issues in this case. This evidence has been offered in the
      form of (opinion of (an) other witness(es)), (reputation)
      (specific instances of conduct of the defendant showing
      such trait). You should consider any such evidence along
      with all the other evidence in deciding whether or not you
      have a reasonable doubt about the guilt of the defendant.9

      9 OCGA § 24-4-404 (a) (1) authorizes the admission of “[e]vidence of a

pertinent trait of character offered by an accused[.]” OCGA § 24-4-405 explains
how this sort of evidence may be introduced:
            (a) In all proceedings in which evidence of character or a trait
      of character of a person is admissible, proof shall be made by
      testimony as to reputation or by testimony in the form of an
      opinion.
            (b) In proceedings in which character or a trait of character

                                      15
Appellant argued that the trait that had been proven was her

character of “being a good mother.” The State responded that there

had not been any evidence presented to support this instruction. The

trial court declined to give the charge.

      On appeal, Appellant gives her good character argument a new

twist. She no longer argues that the jury should have been

instructed about her character trait of “being a good mother”

generally. She now identifies two other character traits —

peacefulness and temperance — that she believes the jury should

have been told to consider. Because Appellant did not request an

instruction on those traits at trial, our review of the trial court’s

failure to give such an instruction is limited to plain error. See

OCGA § 17-8-58 (b); Jackson v. State, 

 (

)

(2019).10 “To show plain error, Appellant must demonstrate that the



      of a person is an essential element of a charge, claim, or defense or
      when an accused testifies to his or her own character, proof may
      also be made of specific instances of that person’s conduct. . . . .
      10 Even if we construed Appellant’s request at trial for a good-character

instruction based on her “being a good mother” as raising the claim she now

                                      16
instructional error was not affirmatively waived, was obvious

beyond reasonable dispute, likely affected the outcome of the

proceedings, and seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Thornton v. State, 

 (

) (2019) (citation and punctuation omitted).

       We need not decide whether it was obvious legal error for the

trial court not to give an instruction sua sponte on Appellant’s

peacefulness or temperance (although we doubt it), “because we

have no doubt that a good character instruction would not have

changed the outcome of Appellant’s trial.” Jackson, 

.

The jury heard the evidence to which Appellant now points as

demonstrating her peacefulness and temperance — that she “never



makes, we would still review this enumeration only for plain error, because
she did not object to the omission of the instruction after the jury was charged.
See OCGA § 17-8-58 (a); Reed v. State, 

 (

) (2018).
      Appellant argues that if we conclude that her claim was not preserved
for ordinary appellate review, we should consider whether her trial counsel
provided ineffective assistance by not objecting after the jury charge. Appellant
cannot raise an ineffective assistance of trial counsel claim in this appeal,
however, because she is represented by the same attorneys who represented
her at trial. See Robinson v. State, 

 (

) (2019)
(explaining that the defendant’s first opportunity to raise a claim of ineffective
assistance of trial counsel is when she is no longer represented by trial
counsel).
                                       17
laid a finger” on one of her children and sometimes spanked but did

not physically abuse others. The jury also heard Kitchens’s

statement that Appellant had slapped Tucker hard enough to knock

him down a week or two before his death and Jamie’s testimony that

Tucker got strange bruises when he was left in Appellant’s care. The

jury was instructed to “giv[e] consideration to all the facts and

circumstances of this case” and “determine the facts of the case from

all of the evidence presented.” It is unlikely that the jury would have

reached a different result if it had been expressly told that it could

consider the nebulous and somewhat conflicting evidence of

Appellant’s peacefulness or temperance. See 

     Judgment affirmed. All the Justices concur.


                     DECIDED JANUARY 27, 2020.
     Murder. Richmond Superior Court. Before Judge Annis.
     Henry N. Crane III, Danny L. Durham, for appellant.
     Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney
General, for appellee.



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