In the Supreme Court of Georgia



                                             Decided: November 3, 2014


                               S14A1103. SMITH v. THE STATE.

       BENHAM, Justice.

       Appellant Jill Adaire Smith appeals her convictions for malice murder and

other related crimes regarding the October 22, 2010, death of her husband Mike

Smith in a house fire.1 For reasons set forth below, we now affirm.

       1. Viewed in a light most favorable to the verdict, the evidence shows that

on the night of the fire, Appellant invited co-defendant Peter Delaney over to

her home. Before his arrival, appellant sent Delaney a text message, instructing

him to buy three bottles of cheap red wine so that her husband would “just pass

       1
         On March 14, 2011, a Forsyth County grand jury indicted appellant on charges of malice
murder, felony murder, and arson in the first degree. Appellant, along with co-defendant Peter
Delaney, was tried before a jury beginning on February 12, 2012, and, on February 28, the jury
returned a guilty verdict against appellant on all charges. The jury acquitted Delaney in full. On
February 29, 2012, the trial court sentenced appellant to life in prison for malice murder and twenty
years to serve consecutively for arson in the first degree. The felony murder conviction was vacated
as a matter of law. Appellant moved for a new trial on March 16, 2012, and the trial court denied
the motion on September 27, 2012. Appellant obtained appointed appellate counsel in November
2012 and, through him, moved for an out-of-time appeal on December 12, 2012. The motion for
out-of-time appeal was granted on March 5, 2013, and appellant timely filed a motion for new trial
on March 13, 2013, which she amended on September 3, 2013. The trial court held a hearing on the
motion for new trial as amended on October 16, 2013, and denied the motion on November 19,
2013. Appellant timely filed a notice of appeal on December 9, 2013, and the case was docketed to
the April 2014 term of this Court. The case was orally argued on July 7, 2014.
the f**k out.” Delaney arrived with the wine as requested at about 8:00 p.m.

The three adults drank and socialized that evening, while appellant’s minor son

played video games upstairs in his room. At some point, appellant decided to

put the victim to bed because he was intoxicated. She took him upstairs to the

master bedroom where he shed his clothes next to the bed, lay down, and went

to sleep. According to statements appellant made to police, the victim was in

bed at 9:58 p.m. and, when appellant left the room, none of the candles in the

room were burning. Appellant retreated downstairs and went into the garage to

smoke a cigarette. According to statements Delaney made to police, he was

asleep on the couch in the living room. Sometime later, Appellant’s son yelled

downstairs to appellant that he smelled smoke. Appellant went upstairs to her

son’s room to investigate and a few minutes later the smoke alarms went off.

Appellant instructed her son to get out of the house and go across the street to

a neighbor’s house. Appellant went to the master bedroom and opened the door

at which point she said she saw smoke and flames. She told police that she saw

the victim or his silhouette in the doorway of the master bathroom, that she

called out to him and that he responded to her. Stating she believed the victim

was coming out behind her, appellant left the house through the garage. On her

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way out of the house, she said she attempted to call 9-1-1 on the house phone,

but it was not working. She said she gathered her purse to retrieve her cell

phone out of it and used the cell phone to call 9-1-1 when she got outside the

house. Appellant called 9-1-1 at approximately 10:49 p.m. Delaney told police

that he awoke to appellant telling him there was a fire and he exited the house.

When he got outside the house, he saw appellant and her son across the street

in a neighbor’s driveway.

       When firefighters arrived at the scene, smoke and flames were shooting

out of the windows of the master bedroom which was situated on the left side

of the house above the garage. Firefighters reported that, although a lot of

smoke and flames were emanating from the master bedroom, most of the actual

fire was on the bed inside the room. The victim was located in the master

bathroom in a “tornado position,” and, although paramedics confirmed he was

dead at the scene,2 appellant was not told of his death until sometime later

during her initial interview with police.




       2
        The medical examiner testified at trial that the victim died of smoke inhalation and thermal
burns covering 90% of his body.

                                                 3
      At the scene, Delaney, who witnesses testified smelled of alcohol and

appeared to be intoxicated, approached a deputy sheriff and told him that the

victim had committed suicide. When the county fire investigator arrived on the

scene, she spoke to Delaney who told her that he and appellant were having an

affair, that appellant and the victim were getting a divorce, and that he believed

the victim had committed suicide. Delaney also told several civilian witnesses

at the scene that the victim had committed suicide. When the county fire

investigator spoke to appellant at the scene, appellant told her that Delaney was

a friend of the victim and that she was not divorcing her husband. Because of

the conflicting statements made by appellant and Delaney, they were asked to

leave the scene and go to the sheriff’s department where they could be

interviewed separately.

      Appellant was interviewed by police on the night of the fire and

approximately seven other times over the course of approximately three months.

During those multiple interviews she made inconsistent statements about what

transpired the night of the fire. However, she never admitted to setting the fire

either accidentally or intentionally. Although she initially denied any affair or

sexual relationship with Delaney, she eventually admitted to engaging in oral

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sex with him. The evidence showed that Delaney presented authorities with text

messages from appellant in which she led Delaney to believe she was in the

process of divorcing the victim and that the finalization of the divorce was

imminent. The State presented evidence that neither appellant nor the victim

had filed for divorce in Forsyth County.

      The county fire investigator testified that on the night of the fire, appellant

did not appear as if she had been in a fire–there was no soot on her person or

singeing of her hair. The county fire investigator testified that appellant’s initial

statement about the location of the fire inside the bedroom was inconsistent with

some of the physical evidence. Upon investigation, the county fire investigator

concluded that the fire primarily originated on the left side of the bed which was

the victim’s side of the bed. There were also floor fires inside the bedroom

which caused several holes in the flooring a few feet in front of the bedroom

doorway. Because the holes were not alongside seams in the floor and because

there was a lack of access to oxygen given the layers of carpet, fiberglass

insulation, and sheet rock in the flooring which separated the master bedroom

from the underlying garage, both the county fire investigator and the insurance

investigator testified they believed an accelerant was used to cause the floor

                                         5
fires. In addition, the insurance fire investigator recovered a sample from near

the left side of the bed, where most of the fire damage originated, which tested

positive for gasoline. Both fire investigators ruled out an electrical fire. Based

on appellant’s statements that candles were in the room and that the victim

sometimes lit candles and incense, both fire investigators considered the

possibility of a fire set by burning candles, but found no evidence supporting

that theory. Ultimately, both fire investigators ruled the fire as intentionally set

and testified to such at trial.

      In addition to the physical evidence, the State also presented evidence of

possible motive. At trial, it was shown that appellant had lost her business a few

months before the fire. There was evidence that appellant was the beneficiary

of several insurance policies entitling her to receive over a half million dollars

as a result of the victim’s accidental death. The State showed that in one

instance appellant forged a signature in an attempt to change the beneficiary

designation to herself on a policy that was ultimately paid out to the victim’s

mother.

      On appeal, appellant argues the evidence was insufficient to convict her

of arson and murder because the State failed to “prove who started the fire” and

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that any of the four individuals who were in the house on the night in question

could have set the fire. Appellant specifically points to the candles, cigars,

incense, matches, and lighters which were all available to cause an accidental

fire, most likely at the hands of the victim. The jury heard such competing

evidence, including testimony from appellant’s fire investigation expert who

opined that the fire started accidentally, and it was free to reject appellant’s

theory. See Lewis v. State, 283 Ga. 191 (1) (657 SE2d 854) (2008). The

evidence, as summarized above, was sufficient to enable a rational trier of fact

to find appellant guilty beyond a reasonable doubt of the crimes for which she

was convicted. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560)

(1979); Sharpe v. State, 291 Ga. 148 (1) (728 SE2d 217) (2012).

      2. Appellant requested a charge on the affirmative defense of accident and

the trial court refused to give it. Trial counsel did not object at the time of the

charge conference or after the jury had been charged by the trial court.

Appellant now contends the trial court erred when it refused to give the charge

and that counsel was ineffective for failing to object. There was no error,

however, because an affirmative defense of accident generally requires an

admission by the defendant that she committed the act that caused the victim’s

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death. See Mathis v. State, 293 Ga. 35 (3) (743 SE2d 393) (2013); Mangrum

v. State, 285 Ga. 676 (6) (681 SE2d 130) (2009). Here, appellant never

admitted to starting the fire, but rather advanced the theory that the victim

accidentally set the fire. Thus, appellant was not entitled to a charge on the

affirmative defense of accident. Id.

      We note further that the trial court gave the following instruction on the

State’s burden of proof and the presumption of accident in cases involving

arson:

      The burden rests upon the State to prove beyond a reasonable doubt
      that the building described in the indictment was damaged by fire,
      the burning was caused by criminal act and the accused was the
      person doing the burning or was a party to it. The law presumes
      every fire to be accidental or naturally caused until the State shall
      prove beyond a reasonable doubt that such fire was a result of a
      criminal act. The criminal act will not be presumed and the burden
      is put on the State to overcome the presumption that the fire was
      accidentally or naturally caused by proof of the criminal act beyond
      a reasonable doubt.

This instruction and the jury charges as a whole were sufficient to encompass

the jury’s consideration of appellant’s theory that the victim accidentally caused

the fire and there was no reason for the trial court to give any additional charge

concerning accident. Inasmuch as the trial court did not err when it refused to


                                        8
give a charge on the affirmative defense of accident, counsel did not render

ineffective assistance by failing to lodge an objection that lacked merit. Currier

v. State, 294 Ga. 392 (2) (754 SE2d 17) (2014). Accordingly, this enumeration

of error cannot be sustained.

      3. Appellant alleges she is entitled to relief for a Bruton3 violation

regarding evidence of a statement made by Delaney which possibly could have

inculpated appellant. During the State’s case-in-chief, the lead investigator for

the sheriff’s department testified about his interviews with appellant and

Delaney on the night of the fire. During those interviews, appellant and Delaney

were in separate interview rooms and the investigator shuttled between the two

rooms. The investigator testified that when he informed appellant that her

husband had died, she began screaming. He then left the room to obtain the

chaplain and while the chaplain was with appellant, he went back in the room

where Delaney was to speak with him. At trial the following colloquy occurred

between the prosecutor and the investigator:

      Q. All right. And when you went in there, what, if anything, did
      [Delaney] say to you?


      3
          Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476) (1968).

                                               9
      A. I walked in the room and [Delaney] said did she conf–

At that point, appellant objected. After a bench conference, the jury was

excused and the State made a proffer showing that upon hearing appellant

screaming, Delaney asked the investigator whether appellant had confessed.

The trial court heard the parties’ arguments about the admissibility of Delaney’s

statement and sustained appellant’s objection. The jury returned and the

prosecutor continued to question the investigator without any further reference

to the statement. Appellant did not request and the trial court did not give any

curative or limiting instruction. Appellant also did not request a mistrial. At the

motion for new trial hearing, counsel testified that he made a conscious decision

not to request a curative/limiting instruction or move for a mistrial because he

did not want to draw any further attention to the matter in front of the jury.

      In this situation, we cannot say there was any reversible error. The trial

court sustained appellant’s objection and was not required to take any further

action absent a request from counsel. See Junior v. State, 282 Ga. 689 (5) (653

SE2d 481) (2007); Carr v. State, 259 Ga. 318 (2) (380 SE2d 700) (1989).

Counsel, in turn, made a strategic decision not to pursue any further remedy and

such decision does not evidence ineffective assistance. Jones v. State, 280 Ga.

                                        10
205 (2) (b) (625 SE2d 1) (2005); Rucker v. State, 268 Ga. 406 (2) (489 SE2d

844) (1997). The trial court did not err in denying appellant’s motion for new

trial on this issue.

      Judgment affirmed. All the Justices concur.




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