In Shah v. State, the Georgia Supreme Court held that the trial court erred in refusing to give the defendant’s requested jury instruction on reckless conduct as a lesser included offense of first degree cruelty to children.
The defendant was convicted of felony murder and two counts of first degree cruelty to children relating to the death of her infant daughter. The evidence at trial showed that the baby was born 13 weeks premature and had to be hospitalized for eight weeks.
Seven months later, the defendant’s air conditioning broke when the temperature outside hovered around 90 degrees. The landlord was out of town but promised to fix it when he returned. Meanwhile, the defendant sealed the windows and purchased a small pool for her other children to cool off in during the day. The next morning, the landlord called to schedule a time to fix the air conditioning. The defendant went to the bank so she could pay rent which was due that day. The defendant left the baby in the care of her 14-year-old daughter who had attention deficit disorder but often looked after the baby.
Upon returning home, the defendant stayed outside with the landlord until 1:00 pm. The defendant asked the 14-year-old if she had checked on the baby yet. She had not. The 14-year-old then discovered that the baby was dead. The defendant, who had not laid eyes on the baby for about 18 hours, called 911 and attempted to resuscitate her to no avail. Responders found the child covered in a blanket.
At trial, the medical examiner testified that the child died of dehydration and probable hyperthermia. The examiner further testified that dehydration in a premature baby would develop over many hours or days and that the premature birth increased the infant’s risk for hyperthermia, as did the non-air conditioned house and the blanket. The examiner stated that the baby was likely fed two to three hours prior to her death.
The State called three pediatricians who constructed growth charts for the infant which were disclosed to the defense for the first time in the middle of the trial. The charts, along with expert testimony, tended to show that the infant’s growth was stunted as a result of two months of malnourishment and starvation. The charts were used as demonstrative aids but not admitted into evidence.
One pediatrician testified that the lack of growth would have been apparent to the infant’s caregiver. The defendant’s only witness testified that the defendant and her 14-year-old daughter followed the hospital’s directions for feeding the infant. In opening, defense counsel suggested that leaving the infant in the care of the 14-year-old was criminal negligence.
The defendant requested a jury instruction on reckless conduct as a lesser included offense of cruelty to children. The Supreme Court noted that reckless conduct was a lesser included offense if the harm to the child resulted from criminal negligence rather than willful conduct. The Court held that the evidence supported the instruction on the lesser offense which would have permitted the jury to find that the defendant was not criminally culpable because she believed that her 14-year-old was caring for the infant.
Further, the Court held that the refusal to give the instruction was not harmless. The State argued that the jury instruction was inconsistent with the defendant’s defense, but the Court disagreed. The primary defense asserted was accident, on which the jury was instructed. The Court noted that the defendant relied on alternative theories of no crime being committed or that the conduct constituted criminal negligence, stating that such dissonant defenses were customary and allowable. The Court also determined that the evidence of malicious intent was not overwhelming.
As a result, the Court reversed the defendant’s convictions for felony murder and first degree cruelty to children and remanded the case for a new trial.