Scott v. State, 302 Ga. 29

On December 4, 2011, Dexter Holliday was shot; Scott was later indicted for malice murder, two counts of felony murder (based on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of a firearm during a felony, and possession of a firearm by a convicted felon.
Surveillance video, two eyewitnesses (Jackson and passenger Varner), and medical examiner testimony showed the victim was shot multiple times after Scott entered the victim’s truck; Jackson drove Scott to and from the scene and testified accordingly.
Scott testified he entered the victim’s truck to sell cocaine, was threatened with a gun, disarmed the victim, and shot in self-defense fearing the truck would run him over.
The jury acquitted Scott of malice murder but convicted him of felony murder, aggravated assault, and the firearm offenses; he received life without parole on one felony murder count and other sentences; the trial court merged certain counts at sentencing.
Scott raised a single issue on appeal: the trial court’s jury charge allegedly failed to instruct the jury to consider each charge separately; he did not object to that portion at trial, so appellate review is for plain error.
The Georgia Supreme Court affirmed convictions but vacated the merger of one firearms count into a vacated felony-murder count and remanded for resentencing on that firearms count.

Issue	Plaintiff's Argument (Scott)	Defendant's Argument (State)	Held
Whether trial court erred by failing to instruct jury to consider each charge separately	Charge language could have led jury to treat counts as a single unit rather than separate offenses	Charge considered as a whole, repeated references to separate counts, definitions, venue instruction, and separate verdict form made clear jury should consider each count separately	No plain error; jury instruction as a whole sufficient and not obviously erroneous; conviction affirmed
Whether any instructional error was "plain" under Kelly four-prong test	Instruction error was obvious and affected substantial rights	No evidence of clear/obvious error or impact on outcome; jury acquitted on malice murder showing separate consideration	Scott failed to meet first three Kelly prongs; plain-error relief denied
Whether sentencing mergers were proper between felony-murder counts and predicate felonies	Trial court merged counts at sentencing	Under Noel and related precedent, a vacated felony-murder count cannot serve as a basis to merge predicate felonies into it	Merger of Count 6 into vacated Count 3 was erroneous; vacated and remanded for resentencing on Count 6
Sufficiency of the evidence to support convictions	(Not raised on appeal)	Evidence (witnesses, video, ME) sufficient under Jackson v. Virginia standard	Court notes evidence was sufficient though issue not raised

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence review)
State v. Kelly, 290 Ga. 29 (Georgia four-prong plain-error instructional test)
Franklin v. State, 295 Ga. 204 (jury charge must be read as a whole to assess error)
Sapp v. State, 290 Ga. 247 (same principle on viewing charge as whole)
Tiller v. State, 218 Ga. App. 418 (Appellate Court found similar charge conveyed separate consideration of counts)
Noel v. State, 297 Ga. 698 (governs merger rules when felony-murder counts are vacated)
Malcolm v. State, 263 Ga. 369 (merger principles cited regarding sentence vacatur)