State v. SmithState v. Smith
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 31, 2009
Joseph T. Deters, Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela Stagnaro, for Defendant-Appellant.
Note: We have removed this case from the accelerated calendar.
{¶1} Defendant-appellant Derris “D.J.” Smith appeals his convictions for felony murder, felonious assault, and child endangering, resulting from the fatal injuries that he inflicted on 18-month-old Malakai Glenn (“Malakai“). We affirm.
{¶2} On June 27, 2007, at about noon, the Cincinnati Police and Fire Communications Department received a 911 call from Sasha Glenn (“Glenn“) originating from the apartment that Glenn shared with Smith, her boyfriend; Roderick Glenn, her brother; and Malakai, her toddler son. Glenn reported that Malakai was having difficulty breathing. When emergency personnel arrived at Glenn‘s apartment, Smith directed them upstairs to a front bedroom where Malakai was lying on the bed. Malakai, barely breathing, exhibited a blank stare and was unresponsive. He soon stopped breathing. Although emergency personnel first believed that Malakai had suffered a seizure, they soon realized that he had not suffered a seizure but instead had a severe head injury. Glenn told them that Malakai had fallen down the steps.
{¶3} Emergency personnel observed that Smith appeared “jittery” and “nervous“; Glenn seemed “abnormally aloof” and “afraid.” At the time, the 20-year-old Glenn was eight months’ pregnant with Smith‘s child. Glenn‘s brother Roderick was not home when the injuries had occurred, but he returned home after the paramedics arrived.
{¶4} Because Malakai had stopped breathing, the paramedics rushed him to Children‘s Hospital. The medical exam indicated that Malakai had suffered severe head trauma that was consistent with child abuse but not consistent with a fall down
{¶5} Although Glenn had initially blamed Malakai‘s injuries on a fall down the steps, she eventually told the police and others that Smith had become angry with Malakai and had grabbed him by his Spiderman pajama top and had slammed his head against the hard surfaces of the wall and closet door of her apartment. The detective investigating Malakai‘s injuries found a small black hair and an oily mark where Glenn claimed Malakai‘s head had struck the wall. He also found a substantial crack in the closet door.
{¶6} Smith, a juvenile, was bound over to a Hamilton County grand jury and indicted on one count of aggravated murder; two counts of felony murder, one with the predicate offense of felonious assault and the second with a predicate offense of child endangering; one count of felonious assault; and one count of child endangering.
The Trial
{¶7} At Smith‘s trial, Glenn testified that in the late morning on June 27, while in the front bedroom located on the second floor of the apartment, she and Smith had argued over a “potty” incident involving Malakai. Specifically, Smith had wanted to punish Malakai, because instead of using the training potty that he had been placed upon, he had retrieved a pillow and a stool to rest on and had fallen asleep while sitting on the potty. Glenn testified that after they argued she had gone downstairs and that, when she returned upstairs, she saw Smith “whooping” on Malakai with his hands in the rear bedroom. She told Glenn to stop, and when Malakai came to her, she noticed that Malakai had “white stuff” in his hair. Glenn
{¶8} After the blows, Smith threw Malakai on the bed. Glenn picked him up and called his name, but he was unresponsive. Smith decided to put him in the shower, and when the water failed to rouse Malakai, Smith told Glenn to call 911 and to tell the dispatcher that Malakai had fallen down the stairs.
{¶9} Glenn further testified that she had been interviewed by the police several times on the day of Malakai‘s abuse and that some of her statements were not consistent with her trial testimony. Glenn explained that she had first blamed Malakai‘s injuries on a fall down the stairs because Smith had told her to do so and because she had been “shocked” and “scared.”
{¶10} Glenn identified her voice on the recording of the 911 call that she had placed after she had found Malakai unresponsive. On this tape, which was admitted into evidence, an out-of-control Smith can be heard coaching Glenn to say that Malakai had fallen down the steps and warning Glenn about the “police.” The medical call taker advised Glenn to calm Smith down or to have him leave the room because of his ranting and raving. Smith can be heard in the background apologizing to Malakai near the end of the recorded call.
{¶11} On direct examination, Glenn was asked why she did not stop Smith as he harmed Malakai. She replied that she was “just shocked.” The prosecutor followed up with a question about whether Smith had ever struck her before, and she
{¶12} Glenn‘s neighbor Clifford Barnes testified that he had overheard an altercation in Glenn‘s apartment in the early morning hours of the day that Malakai was rushed to the hospital. He claimed to have heard banging on walls, a baby crying, and “him” threatening to kill Glenn and slapping her many times. On cross-examination, Barnes testified that Smith smoked hashish and came around him “high” everyday, and that he had often heard Smith threatening and slapping Glenn in the apartment.
{¶13} Dr. Kathi Makoroff, a member of the Children Hospital‘s child-abuse team, testified about Malakai‘s injuries and his treatment for those injuries at Children‘s Hospital. Malakai was essentially in a coma. A CAT scan of his head showed that he was bleeding around his brain and that the right side of his brain had shifted seven to eight millimeters to the left. Malakai suffered massive retinal hemorrhaging in both eyes.
{¶14} Malakai underwent emergency surgery to drain the blood from his cranial cavity and to remove a part of his skull to allow room for his herniating brain. The neurosurgeon discovered, upon opening his skull, that the brain itself was very swollen. The operation had to be stopped, and attempts to reduce the brain swelling failed. Malakai was determined to be brain-dead and was removed from life support several days later.
{¶15} Makoroff testified that, based upon his injuries, Malakai would have been rendered unconscious and unresponsive immediately after the fatal blow to the
{¶16} The coroner testified that the cause of death was intracranial hemorrhage due to cranial cerebral trauma. He added that a significant amount of force was necessary, equivalent to that generated in an automobile collision, to cause the trauma that he had observed. He unequivocally opined that Malakai‘s injuries were not consistent with a fall down the steps and could not have been caused by just shaking him, although he admitted that Malakai did not have a fractured skull. He identified an autopsy photograph that showed Malakai‘s short, dark hair.
{¶17} Glenn‘s brother Roderick testified that he had spent the night in the second bedroom on the evening of June 26, 2007, and that he had seen Malakai in the morning on June 27 before he left for a short time to visit a friend. He said that Malakai was playful but that he was sick, and that he had been sick for several days. Roderick said that when he returned to the apartment, the paramedics were there. Smith, who was “hugging on” Glenn, told him that Malakai had fallen down the steps. Glenn had said nothing.
{¶18} Roderick claimed that Smith and Glenn had argued in the early evening of June 26, 2007, but that he had not heard any argument during the night. He also testified that he had never seen Smith or Glenn harm the child, and that, to his knowledge, Smith had never harmed or threatened Glenn.
{¶20} Longworth first interviewed Glenn at the hospital within a few hours after the 911 call. Glenn began the interview by telling Longworth that her son had fallen down the steps twice in the past two months but had not required medical treatment. Also, Glenn told her that he had had a cold for several days and had had a habit of banging his head on walls and tables.
{¶21} In this first interview, Glenn had blamed Malakai‘s injuries on a fall down the stairs. Specifically, she said that she had heard a loud boom while in her bedroom with Smith. Smith ran out of the bedroom and down to the bottom of the stairs, where he found Malakai. She joined Smith, and they discovered that Malakai was unresponsive. Smith told her that Malakai had been reaching for a toy when he fell, although, as Longworth pointed out to Glenn, Smith could not have seen this from where he was sitting in the bedroom.
{¶22} In her second interview, which began at 5:23 p.m. at the hospital, Glenn again insisted that Malakai had fallen down the steps. But about halfway through the interview, she began crying and stated that “D.J. get mad.” She then described how Smith had punished Malakai for retrieving a stool to rest his head on while he sat on a toilet-training “potty,” first by “whoppin’ on him“—spanking his bottom—and then by picking him up by his shirt and striking his head against the
{¶23} Glenn‘s third interview began at 6:39 p.m. She was asked about several holes that a criminalist had seen in the apartment‘s walls. She said that none of the holes were related to Malakai‘s abuse, and that while Smith had hit Malakai other times in the past, he had never before slammed his head against hard surfaces.
{¶24} All three of Glenn‘s recorded interviews were admitted into evidence at trial without objection.
{¶25} Criminalist Spencer Henderson testified that he had gone to Glenn‘s apartment about an hour after the 911 call was received to collect evidence concerning an injury to a baby. He had photographed the scene, and these photographs were entered into evidence. The photographs did not depict any toy on the steps or at the bottom of the stairs, but there was a small toy in a pile of shoes and clothes in a corner at the top of the stairs. One photograph depicted a training potty, a pillow, and a child‘s stool grouped together in the front bedroom. Others depicted holes and indentations in the walls and doors of the apartment, including three-and-one-half-inch intersecting cracks in the heavy closet door of Glenn‘s bedroom, about five feet and two inches from the floor. Another photograph depicted a damp child‘s Spiderman pajama top that was located in the front bedroom.
{¶26} Henderson returned to the apartment two more times after June 27, 2007. The third time, which happened a week after the incident, he was accompanied by Glenn. Glenn showed him where Malakai‘s head had hit the wall in the first bedroom. Henderson directed his attention to that area and located a small
{¶27} In his defense, Smith presented the testimony of Kelly Glenn, the wife of Sasha Glenn‘s father. Kelly Glenn testified that Glenn and Malakai had resided with her from his birth through November 2006; that Smith had treated Malakai well when he was around them; and that she had concerns about Malakai‘s safety when he was around Glenn.
The Verdict
{¶28} A jury found Smith guilty of two counts of murder, one count of felonious assault, and one count of child endangering. He was acquitted of aggravated murder. The trial court merged the murder counts and imposed a prison term of 15 years to life for the murder, as well as eight years for the felonious assault and eight years for the child endangering, for a total sentence of 31 years to life in prison. In this appeal, Smith now raises five assignments of error.
Sufficiency and Weight of the Evidence
{¶29} In his fourth assignment of error, which we address first, Smith argues that the felony-murder, felonious-assault, and child-endangering convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶31} Smith was convicted of felony murder with the predicate offense of felonious assault. Thus, the state had to prove that Smith had caused the death of Malakai Glenn as a proximate result of his committing or attempting to commit felonious assault. He was also convicted on a separate count of felonious assault under
{¶32} Smith‘s sufficiency argument is meritless. The medical testimony established that Malakai had suffered serious head injuries from an intentional impact that had immediately rendered him unresponsive and eventually killed him. Glenn‘s testimony, which was bolstered by the 911 tape and the other physical
{¶33} In challenging the weight of the evidence to support his convictions, Smith argues that Glenn‘s testimony was inconsistent and suspect because she could have inflicted the injuries on Malakai. As we have already noted, however, Glenn‘s testimony was corroborated by other evidence presented in the case, including the 911 tape. The weight to be given the evidence and the credibility to be afforded her testimony were issues for the jury to determine.3 After a thorough review of the record under the weight-of-the-evidence standard, we are not convinced that the trier of fact clearly lost its way, or that there was a manifest miscarriage of justice. Accordingly, we overrule the fourth assignment of error.
Prior Bad Acts
{¶34} In his first assignment of error, which we address next, Smith argues that testimony that he had previously committed acts of domestic violence against Sasha Glenn and that he had used drugs was erroneously admitted into evidence to show that Smith had acted in conformity with these prior acts, in violation of
{¶35}
{¶37} The other two instances came during the testimony of Clifford Barnes, a resident in the apartment adjoining Glenn‘s. First, Barnes testified that he had overheard noise and commotion coming from Glenn‘s apartment in the early morning hours on the day that Malakai was fatally injured. Barnes testified that he knew Smith‘s voice and that he had heard “him” threaten to kill Glenn and slap her 8 to 12 times. Second, on cross-examination, Barnes added that Smith was “high every day” and that although Smith and Glenn seemed “cool” at first, he often heard Smith threatening and slapping Glenn. Smith did not object to this testimony or request that it be stricken.
{¶38} Smith‘s failure to object to the admission of these statements at trial has waived all but plain error.4 For there to be plain error, there must be a plain or obvious error that affects “substantial rights,” a phrase that has been interpreted to mean that, “but for” the error, the outcome of the trial clearly would have been different.5
{¶40} According to the state, Glenn‘s testimony was not impermissible other-acts evidence, but relevant background information, because it showed that Glenn feared Smith and explained why she had not intervened when Smith slammed Malakai into the wall and closet door of her apartment and why she had first lied about his involvement.
{¶41} We agree that the testimony was not elicited to establish the forbidden inference—that Smith had a propensity for violence and acted in conformity with that propensity—but to give context to Glenn‘s actions. The state had anticipated a question in the mind of the jurors, fostered by the defense, about why Malakai‘s mother had not intervened and why she had first lied about the cause of the injuries. Where defense counsel did not request a limiting instruction, and the state did not rely on the forbidden inference to establish guilt, and where the evidence in the case does not convince us that Smith would not have been convicted but for Glenn‘s challenged testimony, Smith has failed to demonstrate plain error.
{¶42} We next address Barnes‘s testimony. According to the state, Barnes‘s testimony on direct examination about overhearing “him” slap and threaten Glenn only inferentially implicated Smith, and for this reason the testimony did not qualify as other-acts evidence. We are not persuaded by this argument, as Barnes clearly identified “him” as Smith.
{¶43} We also reject the state‘s argument that Barnes‘s testimony elicited on direct examination was admissible because it provided the “immediate” background
{¶44} Barnes‘s testimony, however, was not elicited to provide the forbidden inference but, as with Glenn‘s testimony, to give context to Glenn‘s actions. Moreover, the testimony was less than credible, as it conflicted with the testimony of Glenn and her brother and appeared contrived upon cross-examination. Where defense counsel did not request a limiting instruction, and the state did not rely on the forbidden inference to establish guilt, and where the evidence in the case does not convince us that Smith would not have been convicted but for Barnes‘s challenged testimony on direct examination, Smith has failed to demonstrate plain error.
{¶45} Finally, we address the testimony elicited from Barnes on cross-examination about Smith‘s drug use and his frequent prior altercations with Smith. The state argues that the admission of this testimony was not plain error because the testimony was elicited during cross-examination and was clearly used by defense counsel to discredit Barnes. Barnes was discredited because he acknowledged his own frequent drug use and appeared to be an overzealous witness with an inaccurate recollection of events. Thus, the state contends, and we agree, that since defense counsel used the testimony to discredit Barnes, and the jury acquitted Smith of the
{¶46} Accordingly, we overrule the first assignment of error.
Prosecutorial Misconduct
{¶47} In his second assignment of error, Smith argues that prosecutorial misconduct occurring during closing argument deprived him of a fair trial. First, Smith contends that the prosecutor improperly sent a message to the jury that he did not present any evidence, as indicated by the following passage: “And what do we know separate and apart from Sasha that tells us, hey, that story is believable, it‘s true, and it is indeed what caused this child‘s death? First, the medical testimony. Dr. Makoroff, Doctor Kenny (the coroner), with absolutely nothing to discredit what they said to you to or leave them also unbelievable, nothing, no evidence presented whatsoever to counter what they tell you about these injuries to this child. That no way, no whatsoever, could this child have fallen down the steps to cause this severe brain hemorrhaging, brain death. That no repeated hitting of his own head over a period of time could have culminated in this injury. This was an injury in the now. Nothing, not a single shred of evidence to contradict that.” (Emphasis added.)
{¶48} Smith argues additionally that the prosecutor improperly stated on four occasions that the jury should put itself in Glenn‘s position to understand why she reacted the way she did. Although Smith acknowledges that the court sustained Smith‘s objections to these remarks, he notes that the prosecutor was allowed to
{¶49} While some latitude is granted to both parties in closing argument, a closing argument that goes beyond the evidence may constitute prejudicial error.7 We must consider the argument as a whole to determine whether prejudice resulted from the prosecutor‘s remarks in final argument.8
{¶50} A review of the entire closing argument in this case reveals that the prosecutor asked the jury to decide the case on the evidence presented, not on improper considerations. The state‘s first contested remark asked the jury only to note that the state‘s medical testimony was unrefuted, which was accurate.
{¶51} The prosecutor‘s statement that Glenn had lied and had not stopped Smith because she was afraid of him was an inference fairly supported by the evidence, even though Glenn‘s testimony did not express this precisely: emergency personnel described Glenn as quiet and afraid; an uncontrolled Smith can be heard ranting and raving on the 911 tape, revealing his temperament; Glenn testified that Smith had hit her sometimes when they argued; and Glenn herself testified that she had given false information because she was “scared.”
{¶52} Moreover, Smith‘s allegation that the prosecutor told the jury that Smith had “forced” her to lie is not borne out by the record. Instead, the record demonstrates that the prosecutor, after citing Glenn‘s professed love for Smith, argued that “[h]e made her lie. She was lying to protect him.”
{¶53} The prosecutor‘s closing argument, when considered in context, was not improper. Accordingly, we overrule the second assignment of error.
{¶54} In his third assignment of error, Smith argues that he was denied the effective assistance of counsel. Smith claims that trial counsel was ineffective for eliciting and failing to object to prejudicial other-acts evidence and for failing to object to the allegedly improper prosecutorial remarks that were discussed in the first and second assignments of error.
{¶55} To prevail on his argument, Smith “must show that [his] counsel‘s representation fell below an objective standard of reasonableness”9 and that he was prejudiced by counsel‘s deficient performance.10 Prejudice is demonstrated by showing “that there is a reasonable probability that, but for * * * [the] errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”11
{¶56} Trial counsel‘s representation is presumed effective,12 and this presumption is not overcome here. We have already held that the prosecutor‘s comments did not exceed the bounds of reasonable argument. Thus counsel was not ineffective for failing to object. Likewise, trial counsel‘s conduct with regard to Smith‘s alleged “other acts” testimony was likely tactical and designed to discredit Barnes. One theory of the defense was that all the state‘s evidence, especially Glenn‘s and Barnes‘s testimony, was contrived and designed by the witnesses to conform to pieces of evidence that they had learned about from the police.
{¶57} Trial counsel‘s failure at least to request a limiting instruction regarding Glenn‘s testimony that Smith had sometimes slapped her after an
Allied Offenses
{¶58} In Smith‘s fifth assignment of error, he argues that the trial court erred in sentencing him for felony murder, felonious assault, and child endangering because they are allied offenses of similar import under
{¶59} Ohio‘s multiple-count statute,
{¶60} “(A) Where the same conduct by a defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶62}
{¶63} The Ohio Supreme Court has held that under
{¶64} If the offenses are allied, the court must then proceed to the second step.19 In the second step, the defendant‘s conduct is reviewed. If the court
{¶65} Two allied offenses of similar import must be merged into a single conviction.21 The prosecution must elect which offense it will pursue after a finding of guilt but prior to sentencing.22
{¶66} Recently, in State v. Brown, the Ohio Supreme Court held that resort to the two-step test may be preempted where the legislature‘s intent to allow or not to allow separate convictions is clear from the language of the statutes under review.23
1. Felony Murder and Felonious Assault
{¶67} This court has already determined that felony murder under
2. Child Endangering—Unique Societal Interest
{¶68} Smith was convicted of child endangering in addition to felonious assault and felony murder. Specifically, Smith was convicted of child endangering
{¶69} This court in State v. Johnson26 held that child endangering under
{¶70} This court in State v. Klein29 followed the rationale of Johnson to hold that child endangering under former
{¶71} Thus, we conclude that the General Assembly intended to distinguish child endangering from the other two offenses in this case and to permit separate punishments for the commission of these crimes.
{¶73} Finally, we reject the state‘s argument that it relied upon separate conduct—a blow against the wall and a blow against the door—to prove child endangering and felony murder. This argument is not supported by the record, as the state grouped the acts as part of the same course of conduct in the proceedings below and failed to develop the evidence to support convictions based upon separate conduct.
{¶74} For example, the medical testimony demonstrated that Malakai was rendered unconscious immediately after the infliction of the head injury that eventually caused his death, but the testimony did not distinguish between the two blows. And Glenn testified that Malakai did not cry or otherwise respond after the first blow.
{¶75} This case is distinguishable from the Ohio Supreme Court‘s decision in State v. Cooper31 which involved convictions for involuntary manslaughter and child endangering resulting from violence against one child. In Cooper, the record established that the state had proceeded under a theory of separate conduct and had presented evidence of separate conduct—shaking the child and then slamming his head against a hard object—to prove each offense, thus permitting separate convictions without applying the comparison-of-the-elements test.32
{¶76} We find no merit to Smith‘s five assignments of error. Accordingly, we affirm the trial court‘s judgment.
Judgment affirmed.
HENDON, P.J., SUNDERMANN and CUNNINGHAM, JJ.
Please Note:
The court has recorded its own entry on the date of the release of this decision.