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Smith v. State

Supreme Court of Georgia

June 5, 2017


          GRANT, Justice.

         A Clayton County jury found appellant Dale El Smith guilty of felony murder and two counts of cruelty to a person age 65 or older in connection with the death of Arthur Pelham. On appeal, Smith argues that there was insufficient evidence to support her convictions and that she received ineffective assistance of counsel at trial. Neither contention has merit, and we affirm.[1]


         Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed that, starting in 2008, Smith was a paid care provider for Pelham, a disabled Vietnam veteran who earned benefits from the Department of Veteran Affairs ("VA"). As part of her services, Smith rented Pelham a room in her split-level home; she had a similar arrangement with several other residents. Smith lived in the upstairs portion of the house and Pelham and the other residents lived in the downstairs portion. The VA also contracted with an adult daycare facility to provide care and supervision for Pelham on weekdays and made arrangements with a transportation service to drive Pelham to and from the daycare. As part of the process of enrolling Pelham, Smith signed a contract acknowledging that the daycare center would be closed on days when Clayton County schools were closed due to inclement weather.

         Residents of Smith's home were often found wandering around the neighborhood improperly dressed for the weather. Neighbor Oghenmne Okpadu testified that more than once she had seen Pelham knocking on Smith's door asking for food, and had even seen Pelham lying in the street in the middle of the night. Another neighbor testified to seeing Pelham standing on the side of the road after dark miles away from home. Yet another saw Pelham wandering in the street with no water when the temperature was approximately 95 degrees.

         Unfortunately for Mr. Pelham, the story did not end with the neighbors; his treatment was so poor that numerous law enforcement officers received and responded to 911 calls involving Pelham. A Clayton County Sherriff's officer responded to a 911 call and found Pelham walking along a highway, disoriented and unsteady from being out in the blistering heat. A Clayton County police officer arrived at Smith's house after a 911 call from Pelham and observed that the house had dog and human feces on the floor, spoiled food in the refrigerator, and no heat in the downstairs portion where residents lived. Because Pelham often spent extended periods of time unsupervised at the local Waffle House, concerned employees placed multiple 911 calls regarding Pelham. The bus driver who provided transportation to and from the daycare testified that Pelham was the only client who waited alone outside his residence, and that he did so in all types of weather.

         On January 6, 2014, both Clayton County schools and the daycare that Pelham attended were closed due to a weather emergency-temperatures were freezing. That same morning, Okpadu, one of the neighbors who had helped Pelham in the past, saw Pelham sitting outside on the steps of Smith's house- alone-at about 7:00 a.m. Another neighbor saw Pelham waiting outside by Smith's mailbox around 8:00 a.m. When Okpadu's mother drove by Smith's house at about 8:30 a.m., Pelham flagged her down. Pelham was dressed in khakis, a t-shirt, and a light jacket, and was shaking from the cold. He told Okpadu's mother that he was waiting on the bus to take him to daycare. When she told Pelham that he should go inside, Pelham responded, "she won't let me in." After noticing Smith's car parked in the driveway, Okpadu's mother instructed Pelham to knock and ring the bell, which he said he had already done. Okpadu's mother instructed him to keep knocking and drove away at about 9:15 a.m. Pelham was still in the driveway when she left.

         At about 10:00 a.m., Okpadu again saw Pelham standing outside Smith's home near the mailbox. Later that day, Okpadu's son went outside to check on the family's dog and discovered Pelham, face down, outside Smith's back door. The son called for help, and Okpadu found a jacket to try to warm Pelham while her son went to find further assistance. Although Smith came outside-and saw Pelham's body-she went back into the house without rendering any aid to Pelham or asking anyone to call for help.

         Emergency personnel and law enforcement, responding to a 911 call, arrived at Smith's house at about 5:22 p.m., but aggressive dogs in Smith's backyard hindered them from reaching Pelham. During this time, Smith walked over to Pelham's body, looked at it, and walked back inside, ignoring repeated requests to secure the dogs. A neighbor finally secured the dogs and emergency medical personnel were able to reach Pelham. After some delay, Smith came to her door but refused to give law enforcement officers any information about Pelham's medical history. Once inside, officers determined that the only source of heat for the downstairs residents was a small oven that was turned on and left ajar. The portion of the house where Smith lived, on the other hand, was apparently heated.

         Smith had been home all day watching TV. She denied knowing that the daycare was closed, and also disputed that Pelham had knocked on the door or rang the doorbell that day. Smith insisted that she did not know that Pelham was outside all day. But she did admit that she had never given Pelham, or any of the other residents, a key to the house. Meanwhile, EMS took Pelham, who was unconscious and covered in urine, to Regional Medical Center where he was treated for hypothermia. Attempts to revive Pelham were unsuccessful, and he died at the hospital. The cause of death was hypothermia due to exposure to freezing temperatures. Pelham was over the age of 65.


         Smith contends that there was insufficient evidence to support her convictions for felony murder and cruelty to an elderly person because she did not know or have reason to know that Pelham was not at his daycare facility. She insists that there is no evidence that Pelham knocked or rang the doorbell, or that she refused to allow him back into the house. But contrary to Smith's contentions, there is more than sufficient evidence to show that she acted with the requisite intent.

         To begin, all that is required to support a felony murder conviction is evidence of the intent to commit the underlying felony. Holliman v. State, 257 Ga. 209, 209 (1) (356 S.E.2d 886) (1987) ("The primary difference between the offenses of malice murder and felony murder is that felony murder does not require malice or the intent to kill. . . . Felony murder does, however, require that the defendant possess the requisite criminal intent to commit the underlying felony.") (citation omitted); OCGA § 16-5-1 (c) ("A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice."). In this case, the underlying felony is cruelty to a person 65 years or older. That crime is committed when

A guardian or other person supervising the welfare of or having immediate charge, control, or custody of a disabled adult, elder person, or resident commits the offense of neglect to a disabled adult, elder person, or resident when the person willfully deprives a disabled adult, elder person, or resident of health care, shelter, or necessary ...

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