Smith v. State , 288 Ga. 348 ( 2010 )

Melton, Justice.

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.¹ In Case No. S10A1281, Sonya Smith claims, among other things, that the trial court erred in allowing the prosecutor to make an improper closing argument, and that her trial counsel was ineffective. In Case No. S10A1282, Joseph Smith claims that the evidence was insufficient to sustain his convictions; that his trial counsel was ineffective; and that the trial court erred by failing to merge his conviction for felony murder into his involuntary manslaughter conviction. For the reasons that follow, we affirm in both cases.

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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999) (in case where death penalty is not imposed, “it [is] incumbent upon [the defendant] to raise an objection to the State’s argument below in order to preserve the right to contest the propriety thereof in a subsequent appeal”). See also Paul v. State, 272 Ga. 845, 848 (3) (537 SE2d 58) (2000) (“Plain error” rule applies only “to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57 [judge expressing or intimating opinion as to what has or has not been proved or as to the guilt of the accused]”).

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, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997). It is within the discretion of the trial court to decide “whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). Here, the curative instruction given by the trial court adequately preserved Sonya’s right to a fair trial. Accordingly, the trial court did not abuse its discretion in denying Sonya’s motion for a mistrial. See Johns v. State, 274 Ga. 23, 25 (3) (549 SE2d 68) (2001) (this Court “must presume that the jury followed [its] instruction and disregarded the [witness’] statement”) (citations omitted).

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, 280 Ga. 245, 248 (1) (626 SE2d 96) (2006).

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. See OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain”). The verdicts here were not mutually exclusive, and this enumeration lacks merit.

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.”² To the extent that Sonya now claims that the trial court should have said something more or something different, she has waived review of this issue by failing to object to the information that the trial court did in fact give to her. See, e.g., Bridges v. State, 279 Ga. 351 (9) (613 SE2d 621) (2005).

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, 271 Ga. 148 (2) (518 SE2d 420) (1999).

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 (a) counsel failed to have voir dire recorded, (b) counsel failed to object to the prosecutor asking a witness to compare the victim’s injuries in this case to others that he had seen, (c) counsel failed to object to Joseph Smith’s counsel asking a State’s witness about the severity of the victim’s injuries, (d) counsel failed to object to references at trial to a court ruling regarding the custody of the Smiths’ remaining children, (e) counsel failed to make a record of his agreement with the prosecutor stating that evidence of the Smiths’ other deceased child would not be admitted at trial, (f) counsel failed to effectively cross-examine several State’s witnesses, (g) counsel failed to make a closing argument, (h) counsel failed to object to the prosecutor’s “Happy Birthday” song during closing argument, (i) counsel failed to present good character evidence at trial, and (j) counsel failed in his overall performance at trial, as evidenced by the cumulative effects of errors (a)-(i) outlined above.

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, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court’s decision, “ ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

(a) Contrary to Sonya’s contentions, the failure to have voir dire recorded, by itself, does not amount to ineffective assistance. Williams v. State, 277 Ga. 853 (6) (e) (596 SE2d 597) (2004).

(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, 281 Ga. 770 (2) (b) (642 SE2d 827) (2007).

(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 the motion for new trial hearing about the subject, it is extremely difficult to overcome this presumption.” (Citation and punctuation omitted.) Higginbotham v. State, 287 Ga. 187, 190-191 (5) (a) (695 SE2d 210) (2010). We find that evidence supports the conclusion that Sonya failed to overcome the strong presumption that her counsel rendered effective assistance here. Counsel’s choice not to object “may have been a strategic decision, and because [Sonya] did not question trial counsel concerning this decision, [Sonya] has failed to carry [her] burden to demonstrate that trial counsel provided deficient performance.” (Footnote omitted.) Dyer v. State, 278 Ga. 656, 660 (7) (604 SE2d 756) (2004).

(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, 283 Ga. 1 (3) (a) (655 SE2d 594) (2008).

(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, 276 Ga. 602, 605 (4) (581 SE2d 3) (2003). Here, counsel testified at the motion for new trial hearing that he conferred with Joseph Smith’s counsel regarding cross-examination, and that he chose not to cross-examine certain witnesses whenever he was satisfied that Joseph’s counsel had elicited the same information on cross-examination that he, himself, would have elicited. In light of this reasonable strategic choice, we find that evidence supports the trial court’s conclusion that counsel rendered effective assistance. See, e.g., Smith v. State, 283 Ga. 237 (2) (b) (657 SE2d 523) (2008).

(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 argument, [she] has not shown that [her] trial counsel was ineffective in this regard.

(Citation omitted.) McKenzie v. State, 284 Ga. 342, 347 (4) (b) (667 SE2d 43) (2008).

(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, 275 Ga. 884, 886 (2) (b) (572 SE2d 612) (2002) (where attorney “reasonably cho[oses] silence [instead of objecting to improper closing argument],... we will not use hindsight to second-guess that decision on appeal”). As explained more fully in Division 10 (b), infra, while this Court frowns upon the prosecutor’s antics and finds them to be highly inappropriate, counsel’s decision to remain silent was reasonable, considering the fact that the prosecutor’s argument was so “preposterous” and “over the top” that it may have worked to the benefit of the defense even absent an objection. Indeed, it cannot be said that the jury may not have been alienated by the prosecutor’s theatrical stunt during its closing argument, as the jury found Sonya not guilty on several of the charges against her, including two charges of felony murder, one of the first degree cruelty to children charges, and the malice murder charge.

(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, 276 Ga. 655, 659 (3) (c) (581 SE2d 518) (2003). After discussing the issue with Sonya, counsel made a reasonable strategic decision not to introduce good character evidence, as he did not wish to open the door to potentially damaging questions on cross-examination regarding whether the opinions of the good character witnesses would have changed if they knew that someone had caused the death of a child. This claim of ineffective assistance is without merit. Id.

(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, 278 Ga. 246, 264 (2) (B) (9) (599 SE2d 134) (2004).

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 was convicted. Jackson v. Virginia, supra; see also OCGA § 16-2-20 (parties to a crime). Indeed, regardless of whether the jury believed Mykel Booth’s testimony that Joseph was in the shower at the time that Mykel and Sonya beat Josef and placed him in a wooden box, the evidence authorized the jury to conclude that Josef was already in distress from beatings that he had received from Joseph earlier in the day, and that, even if these beatings “did not directly cause the victim’s death, the beating[s] either materially contributed to the death or materially accelerated it.” Lawson v. State, 274 Ga. 866, 867 (1) (561 SE2d 72) (2002). Moreover, Joseph admitted to police that confining Josef to enclosed spaces was a routine part of the family’s discipline, which authorized the jury to conclude that Joseph was in fact directly involved in Josefs confinement to the box, or that he encouraged the use of the box that may have contributed to the child’s death.

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, 284 Ga. 555, 563 (IV) (668 SE2d 651) (2008) (where attorney did not jointly represent co-defendants, prejudice could not be presumed under specialized ineffective assistance Sixth Amendment conflict of interest case law where defendant could not show that “an actual conflict of interest adversely affected his trial counsel’s performance”). Moreover, there is no evidence that the church that paid Arora’s legal fees exercised any influence over Arora’s independent judgment in representing Joseph. Because evidence supported the trial court’s conclusion that Arora provided effective assistance in this regard, that conclusion will not be disturbed here. See id. at 563-564 (IV).

(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 must remind all prosecutors in this State that it is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors, but

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, 267 Ga. 701, 712 (10) (482 SE2d 314) (1997). Indeed, in order to ensure that the prosecutor did not let her “excessive] ... zeal or the eager quest for victory in [this] case” lead her to forget her duty “to see that justice is done and nothing more” (id.), the trial court would have been well within its right to control the courtroom by putting an end to the display of the prosecutor, even absent an objection from defense counsel. See OCGA § 15-1-3 (4) (“Every court has power . . . [t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto”).

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, 275 Ga. at 885 (2) (b). In this connection, it cannot be said that Arora was incorrect in his belief that the jurors may have been turned off by the closing argument, as the jury found Joseph not guilty on several of the charges against him, including two of the felony murder charges, one of the first degree cruelty to children charges, and the malice murder charge.

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.

All the Justices concur, except Hunstein, C. J., and Benham, J., who dissent.

1 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.

2 We also note that there is no allegation that Sonya’s own trial counsel did not properly advise her regarding her right to testify.