Tewanda J Smith, s/k/a etc v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
TEWANDA J. SMITH, S/K/A
TEWANDA JOVEN SMITH
MEMORANDUM OPINION * BY
v. Record No. 2284-01-1 JUDGE WALTER S. FELTON, JR.
NOVEMBER 5, 2002
COMMONWEAL TH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
J. T. Stanton (J.T. Stanton, P.C. on brief),
for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Tewanda Smith was convicted in a jury trial of (1)
second-degree murder, a lesser-included felony, in violation of
Code § 18.2-32, and (2) child neglect, in violation of Code
§ 18.2-371.1. On appeal she contends that the evidence was
insufficient for a jury to find her guilty beyond a reasonable
doubt of second-degree murder. For the following reasons, we
affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. OFFENSES
On the morning of July 8, 2000, Tewanda Smith walked into
the Sentara Norfolk General Hospital emergency room, complaining
of vaginal bleeding. The triage nurse, Lynn Pantelides, asked
Smith if she had a miscarriage and if she thought she was
pregnant. She answered no, explaining she had a fibroid tumor
that ruptured. Smith also informed Pantelides, upon
questioning, that her last menstrual period was on June 20.
Thereafter, Pantelides pulled Dr. Raeann Hamilton aside and
informed her about Smith.
Dr. Hamilton examined Smith and asked her what happened.
She responded that she had just given birth to a baby.
Dr. Hamilton then inquired about the tumor. Smith told her that
she was initially diagnosed as having a fibroid tumor, but a few
days prior she was informed she was pregnant. 1 After determining
Smith had given birth, Dr. Hamilton began questioning her about
such things as the baby's condition and location.
Smith expressed concern that her mother not find out she
had given birth. She then told Dr. Hamilton that she wrapped
the baby up in some clothes and placed it in the backyard, near
a low fence with chairs around it, to hide it from her mother.
1
Kim Atkins, an x-ray technician at Healthsouth, testified
that on July 5, 2000, she performed an ultrasound on Smith.
Observing the baby and detecting its heartbeat, Ms. Atkins
informed Smith that she was pregnant.
- 2 -
Smith again expressed her concern that if rescue workers were
going to get the child, that they go through the backyard and
not knock on the door and wake her mother. Dr. Hamilton left
the examining room and called 911.
Rescue technicians arrived at Smith's house approximately
thirty minutes after she arrived in the emergency room. Upon
entering the backyard, they found Smith's child, Joshua, on a
walkway near the trashcans. He was covered by a leather jacket
and wrapped chest-high in a pair of sweatpants. The rescue
technicians cleaned Joshua up, separated him from the placenta,
and transported him to the hospital. On July 12, 2000, he died
after being removed from life-support. Joshua's death was a
result of blunt force head injuries and abandonment.
B. INVESTIGATION
On July 8, 2000, Detective T.R. Thompson interviewed Smith
in the emergency room. In response to Detective Thompson's
questions, Smith admitted that two days prior, during an
examination at Healthsouth, she found out she was pregnant. She
stated she was previously informed she had a fibroid tumor.
Smith confirmed that she had given birth to Joshua in her
bedroom. She stated she had him in her sweatpants then wrapped
him in her coat.
Smith informed Detective Thompson that she left Joshua in
the backyard because she wanted to get to the hospital in order
for someone to get him. She wanted to give him up for adoption.
- 3 -
When Detective Thompson asked her why she had not taken the baby
with her to the hospital, Smith replied that she could not let
her mother see her get into the car with the baby. She feared
being thrown out of her house if her mother found out she was
pregnant.
That same morning, Smith was interviewed by a social worker
from Child Protective Services, Priscilla Johnson-Boggs. Smith
gave Ms. Johnson-Boggs an account similar to that given to
Detective Thompson. She stated that she found out she was
pregnant a few days prior, she delivered Joshua, and that she
did not want to tell her mother because her mother would put her
out of the house.
Ms. Johnson-Boggs interviewed Smith again on July 9, 2000.
During that interview Smith stated she did not know it was a
baby that she had wrapped in her jogging pants, but that she was
"going to throw the pants in the garbage can which would have
been easier, much easier."
The Office of the Chief Medical Examiner performed an
autopsy and determined that the cause of death was
"[c]omplications of blunt force head injuries and abandonment."
C. TRIAL
On November 1, 2000, Smith was indicted for murder, in
violation of Code § 18.2-32. At her jury trial, Smith recanted
the statements she made to investigating authorities and medical
- 4 -
personnel. She testified that when she arrived at the emergency
room she told Dr. Hamilton everything that happened.
Q [Mr. Sceviour, Smith's attorney]: Dr.
Hamilton comes through the door. What
transpires? What occurs?
A [Smith]: I told her, I said, "Ma'am, I
had a tumor, you know. I was coming down
[the] steps, [when] this happened." And she
was like, "Where is it? What did you do
with it?" I said, "I just threw the pants
out the back door." She was, like, "Well,
why didn't you bring it, you know, with you
to the hospital?" I was like, "I didn't
want to, you know, touch it." It was just a
tumor. I told her, you know, what happened.
* * * * * * *
Q: At this point did you know you had had a
baby?
A: No, sir.
Q: When was the first time you knew you
actually had a baby?
A: Dr. Hamilton came back in there roughly
fifteen minutes later, and she looked me
dead in my face and said, "By the way, that
was not a tumor, that was a baby." And that
was the first time that I had ever heard
anything about a child.
On June 13, 2001, the jury found Smith guilty of
second-degree murder, a lesser-included felony, in violation of
Code § 18.2-32. She was also found guilty of child neglect, in
violation of Code § 18.2-371.1.
- 5 -
II. ANALYSIS
On appeal, Smith contends that the evidence was
insufficient for the jury to convict her of second-degree
murder. We disagree.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992). The credibility of the witnesses and the weight
accorded their testimony are matters solely within the province
of the fact finder. Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
Smith argues that the evidence did not prove beyond a
reasonable doubt that she killed her newly born infant, Joshua,
and that it was done with malice. In order for the Commonwealth
to convict Smith of second-degree murder, it must prove malice
aforethought. She must be shown to have "willfully or
purposefully, rather than negligently, embarked upon a course of
wrongful conduct likely to cause death or great bodily harm."
Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220
(1984).
Malice may be either express or
implied . . . . "Express malice is evidenced
when 'one person kills another with a
sedate, deliberate mind, and formed
- 6 -
design.' . . . Implied malice exists when
any purposeful, cruel act is committed by
one individual against another without any,
or without great provocation; . . . ."
Id. at 280, 322 S.E.2d at 220 (quoting Pugh v. Commonwealth, 223
Va. 663, 668, 292 S.E.2d 339, 341 (1982)). "In making the
determination whether malice exists, the fact-finder must be
guided by the quality of the defendant's conduct, its likelihood
of causing death or great bodily harm, and whether it was
volitional or inadvertent . . . ." Id. at 282, 322 S.E.2d at
221.
In the case before us, we find that the evidence was
sufficient for a jury to find beyond a reasonable doubt that
Smith acted with malice. Smith's conduct was volitional and of
a nature that presented a high likelihood of causing death or
great bodily harm to her newly born infant. She discovered she
was pregnant two days prior to giving birth, following an
ultrasound examination at Healthsouth.
When Smith finally gave birth to Joshua, she deliberately
wrapped him in her sweatpants and a jacket, went into the
backyard, and left him helpless on the walkway near the
trashcans. While Smith sought medical attention for herself,
the newly born infant was left without medical care, still
attached to the placenta and with multiple skull fractures.
Dr. Suzanne Starling, the Medical Director of the Child
Abuse Program at the Children's Hospital of the King's
- 7 -
Daughters, and an expert in the field of child abuse, testified
that the infant had a total of "at least eight fractures." She
also testified that the type of multiple skull fractures found
on Baby Joshua were consistent with blunt trauma, and would be
similar in severity to head injuries one would expect to see
where an infant went through a windshield in a head-on motor
vehicle crash, or similar to cases where an automobile ran over
a child's head, or where a person would stomp on a child's head.
Dr. Elizabeth Kinnison, Assistant Chief Medical Examiner,
testified, consistent with the Report of Autopsy, that Baby
Joshua suffered blunt force head injuries, including a
comminuted skull fracture of the parietal bone, depressed skull
fracture of the left parietal bone, and multiple linear
fractures of the left parietal bone, right parietal bone, and
right frontal bone. She opined that blunt force head injury and
abandonment caused Baby Joshua's death.
When questioned by Dr. Hamilton, Detective Thompson, and
Ms. Johnson-Boggs about what happened, Smith expressed no
concern for Joshua, merely concern that her mother would throw
her out of the house if she found out she was pregnant again.
Her actions in abandoning the helpless infant were
unquestionably deliberate and conscious. That Smith claimed at
trial she believed she passed a tumor, contrary to the
statements made to Dr. Hamilton, Detective Thompson, and Ms.
Johnson-Boggs, is a matter of credibility to be determined by
- 8 -
the jury. Long, 8 Va. App. at 199, 379 S.E.2d at 476. The
evidence was sufficient to sustain the conviction of
second-degree murder.
The judgment of the trial court is affirmed.
Affirmed.
- 9 -