Lead Opinion
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.
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 Josefs 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 Josefs body and to Josefs head, and testified that the cause of Josefs 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,
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,
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.) White v. State,
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,
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.
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.”
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,
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 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
In order to succeed on her claim of ineffective assistance, Sonya must prove both that her trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington,
(a) Contrary to Sonya’s contentions, the failure to have voir dire recorded, by itself, does not amount to ineffective assistance. Williams v. State,
(b) , (c) Sonya has failed to show how her counsel’s failure to object to testimony about the severity of the victim’s injuries would have created a reasonable likelihood of a different result at trial. Indeed, there was overwhelming evidence of the extreme nature of the victim’s injuries that resulted from beatings by Sonya, and counsel’s failure to object to the testimony relating to the extent of the victim’s injuries does not indicate that the outcome at trial would have been different if counsel had objected. See, e.g., Johnson v. State,
(d) Sonya did not question her trial counsel about his failure to object to the testimony regarding the custody of the Smiths’ other children. Accordingly, “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance^] [and] [w]here[, as here,] trial counsel does not testify at
(e) As explained in Division 3, supra, the trial court gave a proper curative instruction in response to Mykel’s testimony that the Smiths had lost another child. Accordingly, whether or not trial counsel made a sufficient record of his agreement with the prosecutor that no such testimony would be admitted at trial makes no difference. Pretermitting the question whether the failure to make a record of the agreement with the prosecutor would constitute deficient performance, there is no reasonable probability that the outcome of the trial was affected by the alleged failure to make such a record. See, e.g., Rivers v. State,
(f) “Like the determination of which witnesses to call, the extent of cross-examination is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client.” (Citation omitted.) Fairclough v. State,
(g) Counsel made a strategic decision not to make a closing argument. In counsel’s professional judgment, one cohesive closing argument delivered by counsel for Joseph Smith would be more effective than presenting two closing arguments.
Inasmuch as th[is] decision ... was not patently unreasonable, and because [Sonya] provides no basis for concluding that the result of [her] trial would have been different if [her counsel] had [presented an additional] closing argu*354 ment, [she] has not shown that [her] trial counsel was ineffective in this regard.
(Citation omitted.) McKenzie v. State,
(h) Counsel made a strategic decision not to object to the “Happy Birthday” song during the State’s closing argument. Specifically, he preferred to remain silent during the argument rather than run the risk of offending anyone on the jury by giving the impression that he was simply trying to disrupt the prosecutor’s argument. See Braithwaite v. State,
(i) “Whether to introduce character evidence and potentially open the door for impeachment is clearly one of tactics and strategy.” (Citation omitted.) Washington v. State,
(j) “Because [Sonya] has not shown ineffective assistance of [her] trial counsel in any area of [her] trial, [her] claim that trial counsel’s individual and cumulative errors deprived [her] of a fair trial is without merit.” Franks v. State,
Case No. S10A1282
9. The evidence outlined above was sufficient to enable a rational trier of fact to find Joseph Smith guilty of all the crimes for which he
10. Joseph contends that trial counsel was ineffective because (a) trial counsel was acting under a conflict of interest, and (b) counsel failed to object to the prosecutor singing “Happy Birthday” during her closing argument. Both contentions are without merit.
(a) Joseph argues that trial counsel, Manny Arora, was acting under a conflict of interest because he represented both Sonya and Joseph, who had competing interests at trial; and because Arora’s legal fees were being paid by a church to which Sonya and Joseph belonged. However, the record belies these claims. While Arora and the attorney who represented Sonya decided together to conduct a joint defense because neither Sonya nor Joseph wanted to blame the other for the victim’s death, the fact remains that both Joseph and Sonya had their own, independent, attorneys. See Whatley v. Terry,
(b) Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the “Happy Birthday” song during closing argument. Specifically, Arora thought that the “Happy Birthday” song was so “preposterous,” “absurd,” and “over the top” that “it would turn the jurors off,” and that he should not call any more attention to it by objecting to it. In this regard, we
to see that justice is done and nothing more. That duty should not be forgotten in an excess of zeal or the eager quest for victory in [any given] case. The people of the state desire merely to ascertain beyond a reasonable doubt that the accused is guilty of the crime charged, and do not countenance any unfairness upon the part of their representatives in court.
(Citations and punctuation omitted.) Carr v. State,
In any event, because it was reasonable for Arora to pursue a strategy that would allow the potentially inappropriate antics of the prosecutor to backfire against her, we find no merit to Joseph’s claim that Arora provided ineffective assistance in this regard. See Braithwaite, supra,
11. Joseph urges that the trial court erred by failing to merge his conviction for felony murder into his involuntary manslaughter conviction for sentencing purposes because the verdicts on those counts were mutually exclusive. However, for the same reasons stated in Division 4, supra, relating to Sonya Smith, the verdicts relating to Joseph Smith also were not mutually exclusive. Indeed, the evidence authorized the jury to conclude that some of the acts taken by Joseph were non-felony acts of abuse that stemmed from criminal negligence, whereas others amounted to felony cruelty to children. This contention is without merit.
Judgments affirmed.
Notes
On June 15, 2006, the Smiths were indicted for malice murder, three counts of felony murder (with cruelty to children, aggravated assault, and false imprisonment as the underlying felonies), five counts of first degree cruelty to children, three counts of aggravated assault, and two counts of false imprisonment. Following a February 5-14, 2007 jury trial, both of the defendants were found guilty of involuntary manslaughter (as a lesser included offense of malice murder), one count of felony murder (cruelty to children), four counts of cruelty to children, all three counts of aggravated assault, one count of false imprisonment, and reckless conduct (as a lesser included offense of the remaining false imprisonment count). On March 27, 2007, the trial court sentenced the Smiths to life imprisonment for felony murder; twenty consecutive years for cruelty to children (striking Josef with a glue stick); ten years for cruelty to children (confining Josef to a small room) and false imprisonment (confining Josef to a small room), with these sentences to run concurrent with each other and consecutive to the felony murder and cruelty to children (striking with a glue stick) counts; and twelve months for reckless conduct, to run concurrent with the felony murder and cruelty to children (striking with a glue stick) counts. The involuntary manslaughter, cruelty to children (striking Josef in the head and confining him in a box), and aggravated assault (using unknown object to strike Josef in the head) counts were merged into the felony murder count for sentencing purposes; and the remaining aggravated assault charges (striking with a glue stick and unknown objects) and cruelty to children charge (striking with unknown objects) were merged into the cruelty to children charge upon which the Smiths were sentenced (striking with a glue stick) for sentencing purposes. The Smiths’ timely appeals were docketed in this Court for the April 2010 term, and their cases were orally argued on July 6, 2010.
We also note that there is no allegation that Sonya’s own trial counsel did not properly advise her regarding her right to testify.
Dissenting Opinion
dissenting.
I write because I disagree with the majority that, absent objection, this Court cannot review an error affecting the fairness, integrity and public reputation of judicial proceedings caused by a trial court’s violation of its duty to maintain order and decorum in the courtroom. Even without application of the plain error rule here, I disagree with the majority that defense counsel’s failure to object was based on reasonable strategy and that no prejudice has been shown as a result of the assistant district attorney’s theatrical stunt. For these and other reasons set forth below, I respectfully dissent.
1. The majority, while stating that the trial court “would have been well within its right to control the courtroom by putting an end to the outrageous display of the prosecutor, even absent an objection from defense counsel, [cit.]” (emphasis supplied) Maj. Op., p. 356, refuses to address any error from the trial court’s failure to act, although that error was directly raised on appeal. See id. at p. 349 (trial court’s error in not stopping prosecutor’s birthday cake stunt waived for failure to object). What the majority fails to recognize, however, is that trial judges have not only the right to control their courtrooms: they have the duty to do so. R. W. Page Corp. v. Lumpkin,
Paul v. State,
The United States Supreme Court has stated the general rule many times: “Tn exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no excep*358 tion has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.’ United States v. Atkinson,297 U. S. 157 , 160.” Silber v. United States,370 U. S. 717 , 718 (82 SC 1287, 8 LE2d 798) [(1962)]; accord [cits.].
Id. at 480. Finding “the facts of the case at the bar to be exceptional and to seriously affect the fairness, integrity, and public reputation of these judicial proceedings,” id., the Court of Appeals addressed the error asserted on appeal even though no objection had been made in the trial court. See also Putnam v. State,
The record in this case establishes
The record is clear that the trial judge violated his duty to maintain order and decorum in his courtroom. Although he told the jurors in his pre-trial instructions that he was “going to make sure that the decorum of the court — that the decorum of the courtroom stays intact,” he took no action to stop an out-of-control prosecutor from turning his courtroom into a theater stage for her unprofessional behavior, which could only have left the jury with the impression that what she did was perfectly acceptable. It is beyond
2. Even treating this issue as arising solely under a claim of ineffective assistance of counsel, I cannot agree with the majority that the defense counsel’s failure to object was based on a reasonable strategy and thus did not constitute deficient performance.
First, I disagree with the conclusion drawn by the majority that counsel’s decision to remain silent here could qualify as reasonable due to counsel’s wish to avoid “run[ning] the risk of offending anyone on the jury.” Maj. Op., p. 354. A reasonable attorney does not stand by silently and allow the prosecutor to figuratively toss the victim into the jury box, with the resulting prejudice to counsel’s clients, out of concern that an objection essential to protecting the impartiality of the jury might “give the impression” that he was “disruptive.” No reasonable attorney would sacrifice a client’s fundamental right to a fair trial for such a ridiculous reason. Nor was counsel’s concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that “you should not be prejudice^] in any way against a lawyer who makes objections for the party he or she represents.” See Smith v. State,
I also disagree with the majority’s finding that defense counsel was not ineffective on the basis that defense counsel pursued a “reasonable” strategy by gambling that the prosecutor’s stunt would “backfire” on the prosecution. Maj. Op., pp. 354, 356. The majority even approves this strategy: “[i]ndeed, it cannot be said that the jury may not have been alienated by the prosecutor’s theatrical stunt during its closing argument.” (Emphasis supplied.) Id. at p. 354. The prosecutor’s stunt was intended to evoke sympathy for the victim so that the jury, diverted from the facts, would return a verdict based on passion, not the evidence and the law. How is it “reasonable” strategy for defense counsel to use the prosecutor’s improper stunt to elicit the opposite but equally improper effect in the jury? It is just as inappropriate for a jury to return a verdict based on prejudice or bias against the State as it is for the jury to return a verdict against the defense based on sympathy for the victim. A jury’s verdict must be based on the facts and the law, not passion or prejudice. Jackson v. State,
3. Turning to the second prong of the Strickland v. Washington test, I disagree with the majority that appellants failed to establish prejudice from the birthday cake stunt. First, I disagree with the majority that the jury’s verdict can be interpreted in any manner as demonstrating a lack of prejudice. The Counts 3 and 4 felony murder charges on which the jury found appellants not guilty were predicated on the exact same allegations that served as the bases for the Count 2 felony murder/cruelty to children charge, as to which the jury found appellants guilty. It is notable that the jury chose to return its guilty verdict on the felony murder charge predicated on cruelty to children, i.e., the one felony most likely to be influenced by the State’s improper invocation of sympathy for the victim, as also reflected by guilty verdicts to felony cruelty to children charges in Counts 5, 10, and 12.
Moreover, unlike the situation in Davis v. State,
The prosecutor’s behavior cannot be considered in the same light as some incidental statement or minor aberration made in the course of her closing argument. It was an unprofessional tactic undertaken for the purpose of ensuring that the State obtain a conviction. It is difficult if not impossible to imagine that the minds
4. “From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall [be sentenced to life in prison for murder] must be conducted with dignity and respect.” Wellons v. Hall, _ U. S _ (130 SC 727, 175 LE2d 684) (2010) (vacating judgment to reconsider evidentiary effect of gag gift given to judge and bailiff by jurors). While that case involved the death penalty, I would apply its standard to this case as well. But the behavior at issue here was no juror-initiated tasteless gag gift. It was an assistant district attorney — an officer of the court and a representative of the State of Georgia — who debased the dignity and respect of these criminal proceedings. Rather than “adher[ing] to the highest standards of professionalism and proper courtroom decorum [cits.],” Gissendaner v. State,
We cannot lose sight of the fact that the legitimacy of our criminal justice system is undermined when we allow proceedings to be conducted in such a manner that they are rightfully perceived to be unfair. As critically important as the constitutional rights of criminal defendants are, those rights are not the only matters that must concern us. We do a disservice to victims, witnesses, jurors, the bench and bar, and the people of the State of Georgia in general when we do not uphold the dignity and integrity of our criminal justice proceedings. Prosecutorial misconduct of this nature is never harmless because, regardless of the particular verdict rendered, the misconduct damages the perception of fairness of trials that is essential to the effectiveness of the system itself. See Richmond Newspapers, Inc. v. Virginia,
Our courtrooms are not theaters; the participants in a criminal trial are not actors in reality television programs. It is not enough to “frown on” behavior that undermines the very foundation of the criminal proceedings. We have to stop it. And the only effective means of stopping it is to punish this behavior in the strongest
For these reasons I would reverse these convictions based on the State’s deliberate behavior that deprived appellants of their fundamental right to a fair trial.
I am authorized to state that Justice Benham joins in this dissent.
I do not address the majority’s resolution of the trial court’s exclusion of the Court TV DVD because I find that the testimony of the witnesses at the hearing on appellants’ motion for new trial is adequate for the Court’s consideration of this point of error. See Wright v. Texas,
Although case law reflects that other prosecutors have dimmed the courtroom lights in closing argument, see Davis v. State,
Although it seriously concerns me, I do not address the possibility that, by introducing the birthday cake, the prosecutor was deliberately provoking an intolerant attitude in the jury toward the religious beliefs practiced by appellants, particularly in regard to their strict nutritional eating habits. But I question the legal consequences had this birthday stunt been used in a case involving defendants who, e.g., were members of Jehovah’s Witness, a religious denomination with beliefs against observing birthdays. See generally Roy, The Establishment Clause and the Concept of Inclusion, 83 Ore. L. Rev. 1, 39 (2004); Waites v. Waites,
I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was deliberately pandering to the television audience observing the proceedings on Court TV See defense counsel’s testimony at the hearing on appellants’ motion for new trial (“I understand the cameras were rolling and everybody wants to be Nancy Grace’s friend”).
Of course, the jury’s verdict could also he explained hy the reasonable possibility that it concluded, with only one victim, that appellants should not he found guilty of more than one murder charge.
The transcript reveals that no charge on this issue was given to the jury in the pre-trial instructions.
Even reversal will not work to alter the behavior of certain professionally-challenged prosecutors aiming for a career elsewhere, such as on television.
I address the error committed by the trial court in its charge on involuntary manslaughter because the issue may occur on retrial. The jury was charged that it could find appellants guilty of involuntary manslaughter based on either reckless conduct or battery. As in Drake v. State,