Smith v. State, 301 Ga. 79

Background

On April 4, 2010, Robert Smith and Raymond Brewer argued in their shared apartment about a prior altercation; 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 Smith on all counts after a trial in August 2011; the trial court sentenced him to life for malice murder and imposed a five-year consecutive term but the final disposition sheet misreported which counts merged.
The trial court announced at sentencing that aggravated assault would merge into malice murder and that Smith would receive five consecutive years for possession of a firearm, but the written disposition instead merged the firearm count and imposed five years for aggravated assault.
On appeal Smith challenged (1) the jury instruction on witness credibility (inclusion of “intelligence” as a factor) under plain error review, and (2) the jury instruction on self-defense/revenge; the Court also addressed the sentencing/merger errors and remanded for resentencing as to the firearm count.

Issues

Issue	Plaintiff's Argument (Smith)	Defendant's Argument (State)	Held
Jury credibility instruction — inclusion of “intelligence” as a factor	The instruction was plain error because jurors were permitted to consider witness intelligence when assessing credibility.	The instruction listed intelligence among many factors and was not highlighted; any defect was not plain error.	No plain error; instruction upheld because intelligence was one factor among many and not emphasized.
Jury instruction on self-defense and revenge	Charge was inappropriate because no evidence showed Smith acted from revenge for a prior wrong.	Evidence (argument about prior week push) supported giving a revenge/reasonable-belief instruction; slight evidence suffices.	No error; instruction properly given because some evidence supported a revenge-theory and the law was accurately stated.
Sentencing: merger of aggravated assault and firearm possession	Trial court announced aggravated assault merged into malice murder and firearm possession would get consecutive five years. Smith implicitly argues sentencing should follow announced judgment.	State acknowledges clerical inconsistency but points to legal rules on merger.	Vacated in part and remanded: aggravated assault properly merges into malice murder (sentence vacated); possession of a firearm does not merge and Smith must be sentenced on that count.
Felony murder count labeling on disposition sheet	(Implicit) The disposition misstates merger status.	(State) Administrative error noted.	Trial court’s sheet should have indicated felony murder was vacated by operation of law rather than merged; clerical correction noted.

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Jackson v. State, 267 Ga. 130 (possession of firearm during felony does not merge into malice murder)
Hulett v. State, 296 Ga. 49 (defendant must be sentenced on firearm possession when no merger)
Culpepper v. State, 289 Ga. 736 (aggravated assault with same weapon merges into malice murder)
Ward v. State, 239 Ga. 205 (listing intelligence as one factor in credibility charge not reversible where not emphasized)
Howard v. State, 288 Ga. 741 (inclusion of intelligence in credibility charge not reversible error under similar circumstances)
State v. Kelly, 290 Ga. 29 (plain error test articulated)
Hoffler v. State, 292 Ga. 537 (plain error requires obvious defect in jury instruction)
Terry v. State, 291 Ga. 508 (same limitation on plain-error review)
Hicks v. State, 287 Ga. 260 (slight evidence suffices to authorize requested instruction)
Rector v. State, 285 Ga. 714 (revenge-based instruction accurate and may be given if adjusted to facts)
Malcolm v. State, 263 Ga. 369 (felony-murder vacated by operation of law when malice murder conviction obtained)
Clark v. State, 299 Ga. 552 (plain-error review when no objection at trial)