Smith v. StateSmith v. State
S16A1781. SMITH v. THE STATE.
HUNSTEIN, Justice.
Aрpellant Christopher Rayshun Smith was tried and convicted of murder and related offenses in connection with the shooting death of Kevin Daniel and aggravated assault of Kamenika Whatley.1 Smith appeals, claiming three
Smith was tried by himself from March 16-18, 2015, after which a jury found him guilty of felony murder (Count 2), aggravated battery (Count 9), false imprisonment (Count 10), two counts of armed robbery (Counts 3 and 4), two counts of aggravated assault with a deadly weapon (Counts 7 and 8), and the two weapons charges (Counts 11 and 12). He was acquitted of malice murder (Count 1) and the two aggravated assаult with intent to rob and kill charges (Counts 5 and 6).
On May 5, 2015, pursuant to
Smith filed a motion for new trial on May 28, 2015. The trial сourt held a hearing on the motion on September 1, 2015, and denied it on the same day. Smith filed a notice of appeal to the Court of Appeals on October 2, 2015. The appeal was transferred to this Court and was later dismissed as untimely as Smith had filed his noticе one day late. See Smith v. State, Case No. S16A0749 (Feb. 8, 2016). Smith then filed a motion for an out-of-time appeal in the trial court on February 18, 2016, which was granted on March 22, 2016. Smith timely filed a notice of appeal to this Court. The appeal was docketed to the September 2016 term of this Cоurt and was thereafter submitted for decision on the briefs.
instances of trial court error. Though we find no merit in any of Smith’s trial phase enumerations, we do find error with regard to his sentences and therefore we must vacate and remand for resentencing.
Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial established as follows. Smith, a drug dealer, devised a plan with co-indictees Antonio Jones and Jamarrcus Sullivan to rob Kevin Daniel, a competing dealer, of his drugs and money. On June 1, 2013, Smith dropped Jones and Sullivan off near Daniel’s home in Rome, Georgia. As the men approached the house, with Smith’s shotgun in tow, Jones recognized an SUV parked in the driveway as belonging to Kamenika Whatley. Scared that she would be able to identify him, the men decided that Jones would open the front door and Sullivan would “handle everything else.”
When law enforcement arrived at Daniel’s home, they found him face down in the front yard and somewhat responsive. He was taken to the hospital and later died from multiple gunshot wounds. Law enforcement found a .40 caliber shell casing and $3,500 inside the hоme; they located drugs in the front yard. Cell phone records introduced at trial showed numerous phone calls made
While they were incarcerated, Smith wrote letters to Jones rеgarding the case, including requests that Jones deny Smith’s involvement in the crimes. The State also introduced jail phone calls made by Smith in which he discussed the crimes, witnesses, and evidence.
1. Though not enumerated by Smith, we find that the evidence was sufficient to enable a rаtional trier of fact to conclude beyond a reasonable doubt that Smith was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Smith claims that the trial court erred in admitting into evidence two recorded jail calls and handwritten letters. “We review the admission of еvidence for an abuse of discretion.” Moore v. State, 295 Ga. 709, 712 (2) (763 SE2d 670) (2014).
(a) Jail phone calls
Smith first contends that the trial court erred by admitting two incriminating recorded jail calls — one between Smith and his brother and the other between Smith and his wife — alleging that the State failed to lay the
Contrary to Smith’s assertions, because he was tried after January 1, 2013,
Here, the State called an investigator from the District Attorney’s Office to authenticate the two jail recordings. The investigator testified that she was able tо access the jail’s recorded phone calls through a computer program. The investigator listened to Smith’s recorded calls and explained that she was able to identify the parties on both phone calls because they identified themselvеs in
(b) Handwritten letters
Smith also claims that the trial court erred by admitting the letters adduced by the State at trial as authored by him because the State, he claims, failed to lay the proper foundation for their admission.
Co-indictee Jones testified that he was familiar with Smith’s handwriting and further identified the handwriting in many of the letters as belonging to Smith. Jones also testified that many of the letters were either directly given to him by Smith, or were delivеred by a third party at Smith’s request. Finally, the content of the letters referenced information concerning the case, including potential witnesses, evidence, and even included an affidavit for Jones to sign
3. There is also no merit to the contention that the trial court violated Smith’s right of сonfrontation by, as he claims, prohibiting trial counsel from fully cross-examining co-indictee Jones regarding his bias and motive. At trial, the State called Jones as a witness in its case-in-chief. On cross-examination, counsel elicited testimony from Jones that he had not pled guilty or been sentenced on any of the charges he was facing in the joint indictment. Counsel was also able to get Jones to admit that he was facing a potential life without parole sentence for murder. At this time, the State objected, arguing that, whilе counsel could ask Jones about any potential benefit he may be receiving in exchange for his testimony, he could not go into the potential sentencing ranges. The trial court agreed with the State.
Smith now argues, as he did below, that this ruling was error as it violаted his Sixth Amendment right to confront the witnesses against him. We disagree.
Although the Sixth Amendment right to confrontation secures the right of cross-examination, the right of cross-examination “is not an
(Citations omitted.) Nicely v. State, 291 Ga. 788, 796 (4) (733 SE2d 715) (2012). We have previously held that, where a witness has not obtained a concrete plea deal from the State in exchange for his testimony, the accused “‘may not bring out the potential penalties faced by the witness.’” (Citations omitted.) Cheley v. State, 299 Ga. 88, 94 (4) (786 SE2d 642) (2016).
Here, the record shows that counsel was permitted to cross-examine Jones concerning his potential motive or bias, including the charges he was facing and any potential plea deal. “The mere fact that [Smith] was unable to ask [Jones] to conjecture about possible punishment did not diminish [Smith’s] attempt to show [Jones’] motive for testifying on behalf of the State, and did not amount to an abuse of the trial court’s discretion.” Hodo v. State, 272 Ga. 272, 275 (4) (528 SE2d 250) (2000).
Consequently, the sentences for these counts must be vacated. Moreover, Smith must be resentenced on Counts 4, 8, 10, 11 and 12 as each was originally sentenced to be served concurrently with or consecutive to the sentences vacated by this opinion. Accordingly, we remand to the trial court so a proper sentence may be imposed on all remaining counts.
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
Murder. Floyd Superior Court. Before Judge Durham.
Roger L. Curry, for appellant.
Leigh E. Patterson, District Attorney, Natalee L. Staats, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth M. Haase, Assistant Attorney General, for appellee.