Smith v. State, 301 Ga. 79

In April 2010 Smith and Brewer, who lived together, had an argument about a prior incident in which Brewer had pushed Smith; during the argument Smith retrieved a gun and shot Brewer multiple times, killing him.
Smith was indicted for malice murder, felony murder (predicated on aggravated assault), aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony; a jury convicted him on all counts and he was sentenced to life for malice murder plus consecutive time for other counts.
At sentencing the court orally stated it would merge aggravated assault into malice murder and impose five consecutive years for firearm possession, but the final disposition sheet instead merged the firearm count into malice murder and imposed five years for aggravated assault.
Smith appealed, arguing (1) plain error in the jury instruction on witness credibility (the charge allowed jurors to consider a witness’s "intelligence") and (2) error in the self-defense instruction regarding revenge and reasonable beliefs.
The Court found the evidence sufficient to support the convictions but identified the sentencing merger error: firearm possession does not merge into malice murder, while aggravated assault does merge into malice murder when the indictment alleges killing with the same deadly weapon.

Issue	Smith's Argument	State's Argument	Held
Plain-error review of witness-credibility instruction (inclusion of "intelligence")	Inclusion of "intelligence" was erroneous and prejudicial	Prior precedent permits listing intelligence as one of several credibility factors; no plain error here	No plain error; instruction was not reversible because intelligence was not singled out and inclusion is not reversible under the circumstances
Appropriateness of self-defense charge re: revenge and reasonable beliefs	Charge was unnecessary because no evidence Smith acted from revenge	Evidence showed argument specifically referenced a prior pushing incident, providing slight evidence of revenge motive	No error in giving the revenge/reasonable-belief instruction; slight evidence sufficed to authorize the charge
Sufficiency of evidence for convictions	(implicit) convictions unsupported	Evidence supports murder and related convictions	Evidence sufficient under Jackson v. Virginia
Sentencing merger error	Trial court improperly merged firearm count into malice murder on final sheet and sentenced on aggravated assault	State recognizes the clerical/sentencing error but contends merger rules control	Sentence vacated in part and remanded: aggravated assault properly merges into malice murder and its sentence is vacated; possession-of-firearm did not merge and defendant must be resentenced on that count

Jackson v. Virginia, 443 U.S. 307 (evidence-sufficiency standard) (1979)
Jackson v. State, 267 Ga. 130 (merger rule: firearm possession does not merge into malice murder)
Hulett v. State, 296 Ga. 49 (no merger means sentence must be imposed on firearm count)
Culpepper v. State, 289 Ga. 736 (aggravated assault merges into malice murder when indictment alleges same deadly weapon used in killing)
Ward v. State, 239 Ga. 205 (listing intelligence among credibility factors not reversible when not highlighted)
Howard v. State, 288 Ga. 741 (better practice may omit intelligence but inclusion not reversible under facts)
State v. Kelly, 290 Ga. 29 (plain-error test articulated)
Hoffler v. State, 292 Ga. 537 (plain-error requires obvious defect)
Terry v. State, 291 Ga. 508 (clarifying plain-error standard)
Hicks v. State, 287 Ga. 260 (slight evidence is sufficient to authorize a requested jury instruction)
Rector v. State, 285 Ga. 714 (revenge instruction appropriate when adjusted to facts)
Malcolm v. State, 263 Ga. 369 (felony murder vacated by operation of law rather than merged)