Scott v. State, 302 Ga. 29

On Dec. 4, 2011, Dexter Holliday was shot multiple times at a gas station; surveillance video and eyewitness testimony (driver Jackson and passenger Varner) placed Jeremy Scott at the scene and show him entering the victim’s truck and gunshots being fired.
Scott testified he entered the truck to sell cocaine, was threatened with a gun by the victim, wrestled the gun away, and then shot in self-defense because the victim revved the engine.
A Fulton County jury acquitted Scott of malice murder but convicted him of felony murder, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon.
Scott moved for a new trial; the motion was denied. He appealed, raising a single enumeration: the trial court’s jury charge failed to instruct the jury to consider each count separately.
The Supreme Court of Georgia reviewed the claim for plain error under State v. Kelly and concluded the charge, read as a whole, adequately instructed the jury to consider each offense separately; it noted the jury returned separate verdicts (including not guilty on malice murder).
The Court affirmed the convictions but vacated the merger of a firearms conviction into a vacated felony-murder count (per Noel) and remanded for resentencing on the firearms count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury charge failed to require separate consideration of each count	Scott: the charge was insufficiently clear that the jury must consider each charge separately	State: the charge read as a whole and the verdict form made separate consideration clear	No plain error; charge adequate and jury treated counts separately (affirmed)
Standard of review for unpreserved jury-charge error	Scott: urges reversal despite lack of contemporaneous objection	State: review limited to plain error per State v. Kelly	Applied Kelly plain-error four-prong test; Scott failed to satisfy it
Whether any error was obvious/affected outcome	Scott: argues charge error was obvious and prejudicial	State: no controlling precedent showing omitted language was required; jury acquitted on malice murder, showing separate consideration	Not obvious; no showing of effect on substantial rights; first three Kelly prongs not met
Sentencing merger of convictions	State: trial court improperly merged predicate offenses into a vacated felony-murder count	Scott: (implicit) merger was proper at sentencing	Court vacated merger of Count 6 into vacated Count 3 and remanded for resentencing on Count 6

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
State v. Kelly, 290 Ga. 29 (plain-error test for jury-charge review)
Noel v. State, 297 Ga. 698 (rules on merger when one felony-murder conviction is vacated)
Franklin v. State, 295 Ga. 204 (jury-charge reviewed as a whole principle)
Sapp v. State, 290 Ga. 247 (same: viewing charge as whole to determine error)
Tiller v. State, 218 Ga. App. 418 (Court of Appeals discussion on jury considering counts separately)
Malcolm v. State, 263 Ga. 369 (merger principles cited in notes)