Seeds of doubt sewn by defense on criminal intent the night of February 3, 2009; mother testifies to birth of deceased child, previous lies.
After nearly five and a half hours of deliberation, and some eight years after a decomposing infant was discovered in the trunk of a vehicle, an emotional three-day trial came to an end around 10:00 p.m. Friday night in Warrensburg.
A Johnson County jury of 12 found the infant’s mother, Emily Usnick, not guilty on the State’s charge of second degree felony murder and guilty on one count of first degree involuntary manslaughter. The Class C felony carries a maximum sentence not to exceed seven years of imprisonment.
The first jury action came roughly an hour after deliberations began when a note requested O’Malley instruct the group on whether or not they should assume the child was alive at the time of birth. The judge corresponded the jury must determine the answer to that question themselves based on the facts and evidence presented during trial.
Around 7:35 p.m., Senior Judge John O’Malley issued a “hammer instruction”, ordering the jury who were believed to be deadlocked at this point, to continue deliberations.
Prior to the hammer instruction, the jurors had sent another note to the judge stating they had agreed to one charge, were 11 to 1 on another charge and 9 to 3 on the third charge. The note, read on the record, stated that the jury doubted they could convince the minority members to change their vote.
It appeared the long, tedious and potentially confusing jury instructions, the subject of some eight hours worth of legal maneuvering by the attorneys and O’Malley Thursday afternoon and night, could at least partially responsible for the length of deliberations.
In perhaps a moment of foreshadowing or just a kind gesture by a veteran prosecutor to two young public defenders, Assistant Attorney General Susan Borise, a criminal lawyer with over 30 years experience and who assisted Miller County Prosecutor Ben Winfrey for the State of Missouri, told Missouri Public Defenders Jason Emmons and Walter Stokely they had done an excellent job in defense from a legal standpoint before taking off for her next case. The compliment came hours before the jury had reached its verdicts.
In order for the state to prove that second degree felony murder had occurred, it first had to establish the foundational, lesser crime that felony child endangerment occurred. It appeared the jury was agreed to that child endangerment had occurred and even sought a separate charging sheet, but O’Malley returned a note further clarifying the instructions as to the second degree murder charge.
Involuntary manslaughter was included in the jury instructions, though was not an official charge at the time of trial.
Approximately 30-minutes before the verdict was returned, the jury had requested legal pads as they were not allowed to take notes throughout the course of the trial. A corresponding note said that certain jury members were remembering testimony differently and requested several pieces of evidence to review, including Usnick’s written statement and Miranda Rights waiver.
When the verdict was delivered one after another, not guilty followed by guilty, the courtroom was seemingly silent in anticipation of a reaction that never came. Usnick did not appear to exhibit any emotions, neither did jury members.
Usnick’s original bond of $75,000 was upheld by O’Malley, which she has already posted, and the judge ordered a Sentence Assessment Report to be completed for a hearing at 1:30 p.m. on June 29, 2017. The judge said the defense would have 25 days to file a motion for a new trial, if the defense wishes to do so. Prior to the criminal trial, Usnick had waiver her right to jury sentencing opting for the court’s discretion.
Also facing charges of several counts related to drug possession, a motion to sever on behalf of Usnick was granted prior to the trial. Those charges are still pending and were awaiting this outcome to proceed, Winfrey told O’Malley before the trial got underway Wednesday.
Mother testifies to death of her daughter
Usnick, now known as Emily Smith, took the stand Friday morning in Johnson County during the second degree murder trial of her infant daughter discovered in a drug bust in 2009 in rural Miller County.
No official cause of death was issued or conclusively proven through testimony, though the infant is believed to have died from a lack of oxygen or blood being pumped to the brain, or medically referred to as hypoxia. When exactly the child died, whether in-utero, during birth or afterward was concluded to be undeterminable given the state of decomposition of the body.
Immediately after the State has finished presenting its’ case, as common in criminal trials, Missouri Public Defender Jason Emmons filed a motion to dismiss the charge and was granted an oral argument with Senior Judge John O’Malley out of sight from the jury.
Emmons’ argued the State had failed to determine a cause of death and duration of time the infant was alive, if at all, and therefore could not request the jury to go above and beyond the testimony of medical experts to reach a conclusion.
Assistant Attorney General Susan Borise argued in favor of the prosecution, telling the judge that the evidence presented, specifically forensic pathologist testimony that the infant was viable had made the mother liable for failing to seek necessary medical attention and that she acted with willful and reckless disregard.
“It’s a fairly close call. The evidence has been favorable to the state up to this point,” O’Malley told the attorneys. “Motion is overruled at this point.”
With the official order to proceed the defense began to present their case, calling the defendant to the stand - a possible surprise to the jury box who gave Usnick its undivided attention through sometimes tearful testimony.
Usnick testified that she had previously given birth to three children before becoming pregnant in 2008. She stated she had never experienced morning sickness or experienced her water breaking in prior pregnancies.
The defendant confirmed she was at least partially staying at the St. Elizabeth residence during the time of the pregnancy and gave birth to the infant while sitting on a toilet, straddling the bath tub and counter or cabinet with both hands. Usnick stated there were several people living at the house during the time and others who would drop by for visits, though they mostly stayed out of each other’s business and wouldn’t have known she was pregnant.
The jury heard no testimony as to other events that occurred on the night of February 3, 2017 when Usnick and several others were arrested and charged on several counts related to drug possession, only that the Mid-Missouri Drug Task Force agent that had been present was assisting with a search warrant at the residence.
At the time of the pregnancy, Usnick testified she was not currently employed, between houses and receiving $234 a month on child support from one of her child’s biological fathers. She did have a cell phone at the time, but it was pay-by-the-minute and currently out of minutes when the pregnancy occurred sometime around January 15 or 16, 2009, she told the jury.
Usnick said she was home alone, doing laundry, sometime in the late afternoon when she was struck with intense stomach pain that felt like gas. She said she felt the urge to push and didn’t immediately realize she was given birth, based on the three prior births which had been delivered at hospitals.
The defendant said she never went to a doctor or took a test to confirm the pregnancy, but felt “butterflies” in her stomach around August or September at which point she said she knew for sure.
“I was struggling to get by,” she told the jury. “I knew I wasn’t capable of taking care of another person at that time. Abortion wasn’t an option.”
Usnick said she had planned to deliver the baby at the hospital and then sign it away to give it a chance at a better life.
After the baby had been delivered into the toilet along with the after-birth, Usnick said she had grabbed a nearby tissue basket and placed the baby on top as she continued to writhe in pain over the toilet.
“She wasn’t moving. I couldn’t stop what was going on at that moment,” Usnick said through tears. “She was beautiful. A little bit pink and blue, she looked like a sleeping baby, silent. She was gone.”
After understanding what had just occurred, Usnick said she had felt like a “failure” and that she had “let her (daughter) down.” Once giving birth and regaining a bit of energy, Usnick shoved a towel between her legs and headed toward her bedroom to rest, bringing the infant along and placing her inside a blue storage bin that would eventually be moved to her car’s trunk, unmovable at this point due to a failed transmission, she said.
“I was scared. Still in pain, shock. I didn’t know what to do,” she testified. “I was a mess.”
Usnick said she had never moved the baby once it was placed in the trunk and described her subsequent interviews with police and in custody as “scary,” “alone” and “intimidating.”
She admitted to initially denying having knowledge or being pregnant to investigators, but would later change her story to what she has testified to on day three of the trial. In regards to her written statement where she questions whether or not the baby could have drowned while in the toilet after birth, Usnick said that possibility was put in her mind by investigators.
“I couldn’t say what didn’t happen,” she said. “I just accepted that could have been the reason.”
Rebuttal evidence presented against Usnick
The prosecution sought to discredit pieces of Usnick’s testimony after her testimony, specifically, that the residence she was staying at in St. Elizabeth was remote, not close to any neighbors, or near medical services, nor did her pre-paid cell phone have any minutes or reliable reception.
Investigator John Pehle with the Missouri State Technical Assistance Team testified that he obtained AT&T cell phone records for a number registered to Usnick that showed activity in the form of calls placed, texts generated and other cell phone activity on the day of January 15, 2009, which was believed to be the date of the birth. A call at 7:57 p.m. to a number discovered to have belonged to ex-boyfriend Ryan Robison was shown in the records, he testified.
Captain Kip Bartlett, who had been called to testify on day one of the trial, was recalled to give testimony as to the location of the residence within Miller County. Bartlett testified that a 24-hour manned ambulance district was 3,850-feet away from the residence and the residence directly across the street belonged to U.S. Congressman Blaine Luetkemeyer. There were also several other houses on main street, Bartlett said, which appeared to contradict Usnick’s testimony in regards to the surroundings of the area.
Each side was provided 30-minutes for closing statements, in which Winfrey delivered first for 18-minutes, followed by Emmons for 30-minutes, and Borise for the last 12-minutes in conclusion before instructions were delivered.
Winfrey asked the jury to use their “common sense” and deliver “justice” and “dignity” to the child who was never given a chance, he said. The prosecutor said it wasn’t his job to be “dramatic,” but to help the jury reach a verdict by applying the facts to the case.
“She never had a birthday. She never learned how to walk,” Winfrey told the jury. “She lost her past and her future.”
Despite inconclusive expert testimony, Winfrey told the jury they did not need to be medical expert to decide that the defendant acted knowingly with intent to risk her child. He said the defendant’s deed, specifically lying to investigators and storing the body in the trunk of her car for several weeks, showed a conscious of guilt.
“You can't do that with people,” he said. “All we know is know she was hidden away. She cannot testify. Give her justice her own mother did not give her in life.”
During the defense’s closing statements, Emmons sought to sew doubt in the State’s expert testimony, specifically that of Dr. Carl Stacy, who Emmons pointed out during cross-examination the forensic pathologist had given different answers during a 2012 evidence hearing when posed with similarly posed questions as to how long the baby lived, when it died and whether or not it could have been resuscitated.
“When the State doesn’t know how can they ask you to be certain beyond a reasonable doubt?” Emmon’s pondered. “She didn’t have a choice. That’s the tragedy, but it’s not murder.”
Emmons told the jury that no one knew for sure when the infant had died or what specifically caused the death. He told the jury that possibilities of causes of death were not facts.
“Hannah was already dead. It happened all of a sudden. She didn’t choose for her to die,” he said. “Not a day goes by she doesn’t think of Hannah.”