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Supreme Court of Georgia
Jane Hansen, Public Information Officer 244 Washington Street, Suite 572 Atlanta, Georgia 30334 404-651-9385 hansenj@gasupreme.us

SUMMARIES OF OPINIONS
Published Monday, January 23, 2012 Please note: Opinion summaries are prepared by the Public Information Office for the general public and news media. Summaries are not prepared for every opinion released by the Court, but only for those cases considered of great public interest or in which a Justice dissented or the Court reviewed a case from the Court of Appeals. Opinion summaries are not to be considered as official opinions of the Court. The full opinions are available on the Supreme Court website at www.gasupreme.us . SMITH V. THE STATE (S11A1934) and MACK V. THE STATE (S11A1935) The Supreme Court of Georgia has unanimously upheld the murder convictions and life prison sentences given to a metro Atlanta couple for strangling and beating to death the woman's 2 and 1/2- year-old daughter. According to the evidence at trial, Thomasina Mack and DeMario Steven Smith lived together in Coweta County with their 8-month-old baby and her 2 1/2-year-old daughter, Makayla Mack. On Dec. 10, 2008, Mack called 911 and said her daughter was unresponsive. After trying to resuscitate the toddler, emergency medical personnel transported her to a hospital where doctors determined she still had a pulse. They found a thin line around the child's neck with scratches around the line and bruises on her face. Mack said she believed the markings on Makayla's neck were a rash caused by eczema or an allergic reaction. Makayla was then transported to Scottish Rite children's hospital where doctors put her on life support and later pronounced her brain dead. Mack told a social worker that twice the day before, she and Smith had heard a "thump" when Makayla fell off the bed and hit her head, suffering seizures. According to the State, when the social worker told Mack that Makayla would undergo an autopsy, the mother said the autopsy "will show who strangled her." At that point, no one had mentioned strangulation, prosecutors said. The autopsy revealed that Makayla had bleeding inside her eyes, as well as bleeding on the brain and bruises and scratches on her head. The medical examiner noted hair loss that suggested someone had yanked the child's hair from her head. She had bruises on her face and a bite mark on her left arm. While Smith admitted to law enforcement that he had bitten Makayla

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"playfully," a forensic dentist testified that the bite would have been painful and "forceful." The child had numerous scabs and scars all over her body from older injuries, including cuts caused by fingernails and injuries from being struck with objects such as a belt. The medical examiner testified Makayla had been strangled and suffered a blunt force trauma to her head, either of which could have killed her. She determined a phone cord could have been used to strangle her. A detective found a length of telephone cord in the trash. At trial, Smith testified that Mack frequently yelled at her little girl and hit her with hairbrushes, a balled-up fist, a thick leather belt and shoes. He testified he saw the mother choke Makayla with the strings of a knitted hat several days before her death and he saw Mack hit the child with a belt the day she died. Smith admitted, however, that in 2007, he was alone with Makayla when a similar incident occurred and he called 911. A relative testified she had seen Mack spank her daughter when she was still an infant, hitting her hard with her hand, pinching her ear and jerking her. Smith and Mack were tried jointly in April 2010, and the jury found them guilty of malice murder, felony murder and cruelty to children in the first degree. They were sentenced to life in prison. Each appealed to the Supreme Court of Georgia, with Mack arguing the trial court made four errors, including that it should not have denied her motion for a directed verdict of acquittal. But in today's unanimous opinion, written by Justice Robert Benham, the Court finds the trial court did not err. "The circumstantial evidence presented by the State was sufficient to authorize a rational trier of fact to find appellant Smith guilty beyond a reasonable doubt of malice murder," the opinion says. Smith argued he was denied effective representation at trial and should have been granted time to present dental molds to a forensic expert of his choosing. The high court has also rejected his grounds for appeal. Attorneys for Appellants (Smith and Mack): Suellen Fleming, Maryellen Simmons, Walker Chandler Attorneys for Appellee (State): Peter Skandalakis, District Attorney, Kevin McMurry, Asst. D.A., Samuel Olens, Attorney General, Mary Beth Westmoreland, Dep. A.G., Paula Smith, Sr. Asst. A.G., Katherine Thrower, Asst. A.G. ROGERS V. THE STATE (S11A1709) The Supreme Court of Georgia has unanimously upheld the murder convictions and consecutive life sentences given to a DeKalb County man in the disappearance and murders of two young men. According to the facts of the case, Eric Rogers' 2010 convictions were the result of two "cold" cases that eventually broke in 2002. The evidence shows that when Rogers was 19 years old, he began sexually abusing his 6-year-old nephew. The abuse continued until the boy was 12, resumed when he was 15 and ceased by the time he was 18. In 1991, Rogers met 15-year-old Mark Birmingham, who lived a block from Rogers' house. According to briefs filed in the case, Birmingham came from a poor family and Rogers, by then 30 years old, befriended Birmingham and bought him clothes, expensive tennis shoes and haircuts. Rogers began taking Birmingham into his basement where he sexually abused the teen and eventually started having anal sex with him. Rogers' nephew would later testify that he witnessed some of these sexual acts. After a

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while, Birmingham had "had enough" of Rogers' sexual abuse, according to prosecutors. Soon after, Birmingham disappeared. Rogers started showing people a letter, supposedly written by Birmingham, that stated the teenager had "left." But according to prosecutors, Rogers shot Birmingham in the chest with a .380 handgun that he regularly carried around in a fanny pack. He later took his nephew into the woods near his DeKalb County home where Birmingham's bloated body lay. Rogers had his nephew help bury Birmingham's body. The nephew, by then 17, did not tell anyone what his uncle had done. He later testified he was scared of his uncle and what would happen. In 1994, Rogers met 18-year-old Darnell Patterson, who had left his small town in Alabama to attend DeVry Institute in DeKalb County. Rogers, who was also a student at DeVry, befriended Patterson, giving him rides to school, taking him to shoot pool, buying him haircuts and buying him "weed." Rogers eventually began having sex with Patterson in his basement, where he took pornographic photos of Patterson and created a slide show for his computer. Patterson disappeared in 1995, shortly after telling his roommates that "someone" was taking him to the Super Bowl. The Friday before the 1995 Super Bowl, Patterson was seen leaving with Rogers. After Patterson's disappearance, Rogers moved to Mississippi where he told a friend, Richard Husband, that around the time of the Superbowl, he'd taken Patterson "back to Atlanta" and "shot Darnell Patterson in the back of the head." Patterson's body was never found. In 2000, Rogers befriended 18-year-old Benjie Keys while living in Mississippi. They met in the cafeteria of Howard Industries in Laurel, Miss., where both worked. Keys had little money, and Rogers offered to buy him an expensive car stereo system Keys wanted. Rogers convinced Keys to come home with him, saying that's where the stereo system was. When Keys asked Rogers about a missing person's flyer about Darnell Patterson that Rogers kept framed in his home, Rogers hit Keys in the head with a sledge hammer, pulled out a .380 handgun and hit Keys in the mouth with it, breaking two of his teeth. He then dragged Keys into the bathroom, handcuffed him to a pipe in the wall, and while videotaping it, performed oral sex on Keys. After leaving Keys in the bathroom all weekend, Rogers released him and told him he was going to take Keys into the woods and kill him. Once in the woods, Keys said he pleaded for his life and got Rogers to change his mind. After Keys escaped, he reported the attack to police. Rogers was subsequently arrested, convicted of aggravated assault and sent to prison. While there, in 2002, Rogers' grown nephew went to police and led them to the wooded spot behind Rogers' DeKalb County house where Rogers had buried Mark Birmingham's body. Police then obtained a search warrant for Rogers' Mississippi home where they recovered photos of Birmingham and Patterson, as well as the pornographic slide show of Patterson on Rogers' computer. They found Patterson's school books in a locker. In 2010, a DeKalb County jury convicted Rogers of the murders of Darnell Patterson and Mark Birmingham, and he was sentenced to two life prison terms, to be served one after the other. According to the State, the evidence showed that "Eric Rogers is a sexual predator who, using the same methodology, sexually abused and murdered or attempted to murder available young black males from 1980 through 2000, when an uninterrupted span of imprisonment finally ended Rogers' pattern of criminal conduct." Rogers appealed to the state Supreme Court, arguing that the trial court made eight errors, including that there was insufficient evidence to convict him. In particular, he argued, venue

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Georgia Law