SMITH v. THE STATE
S15A1703
Supreme Court of Georgia
JANUARY 19, 2016
357 Ga. 26 | 782 SE2d 26
DECIDED JANUARY 19, 2016.
Lаw Offices of Matthew K. Winchester, Matthew K. Winchester, for appellant.
Dennis C. Sanders, District Attorney, Kevin R. Majeska, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Sеnior Assistant Attorney General, for appellee.
S15A1703. SMITH v. THE STATE.
(782 SE2d 26)
Tariq Smith was tried by a Fulton County jury and convicted of murder and several other crimes in connection with the fatal shooting of Emmanuel Opoku-Afari. Smith appeals, сontending that the trial court erred when it removed one of the jurors after the evidence was closed. We find no merit in that contention, but we note that the trial court erred when it failed to sentence Smith for аttempted armed robbery and the unlawful possession of a firearm by a convicted felon. Accordingly, we affirm in part, vacate in part, and remand for resentencing.1
1. Viewed in the light most favorable to the verdict, the evidence shows that, on October 12, 2010, Smith sold a television to Opoku-Afari. During the transaction, Smith noticed that Opoku-Afari seemed to have a lot of money, and he devised a plan to rob him. Later that dаy, Smith discussed his plan with Anthony Norris and Tefflon Rhoden, who agreed to assist Smith with the robbery. Traveling together in Norris‘s truck, the three men located Opoku-Afari, and they followed him to his apartment in South Fulton County. But when the three men approached Opoku-Afari with guns,
Smith does not dispute that the evidence is sufficient to sustain his convictions. Nevertheless, wе have independently reviewed the record with an eye toward the legal sufficiency of the evidence. We conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Smith was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Powell v. State, 291 Ga. 743, 744 (1) (733 SE2d 294) (2012) (“[a] person who does not directly commit a crime may be convicted upon prоof that a crime was committed and that person was a party to it“) (citations and punctuation omitted). See also
2. Smith was found guilty of three counts of felony murder, and the trial court properly sentencеd him for only one of those counts. The trial court purported to merge the other two felony murders — which were predicated on attempted armed robbery and the unlawful possession of a firearm by a сonvicted felon — into the felony murder for which Smith was sentenced. But as noted in footnote 1, supra, those felony murders were vacated by operation of law. And because the trial court failed to reсognize that those felony murder counts were vacated, it erroneously merged the underlying crimes for those felony murder counts (attempted armed robbery and the unlawful possession of a firearm by a conviсted felon) into the vacated felony murders. As a result, the trial court failed to sentence Smith for crimes of which he was found guilty and properly should have been convicted.
This sentencing error has not been rаised by the State, and this Court has no duty “to scour the record searching for merger issues.” Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013). But if we notice a merger issue in a direct appeal, as we do here, we may resolve that issue. Id. at 486 (2) (b). Accordingly, we vacate that portion of the trial court‘s sentencing order in which it merged attempted armed robbery and the unlawful possession of a firearm by a convicted felon into the vacated felony murders, and we remаnd for sentencing on those counts. See Hulett v. State, 296 Ga. 49, 52-56 (2) (766 SE2d 1) (2014).
3. Smith‘s sole claim of error concerns the removal of a juror. The juror in question was an insurance agent, and the controversy that led to his removal began during the voir dire of prospective jurors, when Smith‘s lawyer asked the juror if they knew each other. When the juror said that he did not recognize the lawyer, the lawyer informed him that the lawyer had purchased insurance policiеs through the juror‘s insurance agency. The juror thanked the lawyer, who then asked him if the business relationship would affect his ability to “be fair to both sides.” The juror responded that it would not, and he ultimately was selected to sеrve on the jury.
On the fourth day of trial, and after the State‘s closing arguments, the court informed the parties that the juror at issue had twice approached the courtroom deputy about the business relationshiр between his insurance agency and Smith‘s lawyer. According to the deputy, the juror had developed “a concern about being able to vote against a customer of his agency,” and he told the deputy thаt, “while he didn‘t know [the lawyer,] people in his office did.” The parties all agreed that the judge should individually question the juror. When asked about his concerns, the juror responded that he “didn‘t think it would be fair for me to be on this triаl because of the conflict.” The juror told the court that he had not discussed the matter with anyone in his office, but he admitted that he had looked up Smith‘s lawyer in his company‘s files to “verify” that the lawyer was a customer. The court informed the juror that such conduct violated its instruction not to do any independent research about the parties or their lawyers.
The trial court discussed the matter with the parties, and Smith and Rhoden urged the court not to remove the juror. But the court explained that it did not want the juror to serve “if he cannot follow the court‘s instructions,” and that it had “additional concerns about his ability to be fair and impartial in general.” The court then removed the juror from the panel and reрlaced him with the first alternate.
Smith acknowledges that a trial court has broad discretion to determine whether it is appropriate to remove a juror. See Gibson v. State, 290 Ga. 6, 10 (5) (717 SE2d 447) (2011);
In addition, the trial court had another basis for removing the juror, namely, its concern about the impartiality of the juror. The fact that the juror twice approached the deputy with concerns about his business relationship with Smith‘s lawyer would support a finding that the juror was not, in fact, able to remain impartial. Moreover, the juror‘s numerous equivocal responses that he wоuld “try” or would “do [his] very best” to put the relationship with Smith‘s lawyer out of his mind also supported the trial court‘s conclusion about the juror‘s ability to be impartial. See Butler, 290 Ga. at 418 (5) (“fact that the juror eventually stated that he could be impartial does not require the trial court to ignore the numerous times he equivocated“) (citation and punctuation omitted). See also Sears v. State, 292 Ga. 64, 66 (2) (734 SE2d 345) (2012) (“[a] trial judge is uniquely positioned to evaluate whether a prоspective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks“) (citation and punctuation omitted).
The trial court had two sound reasons for removing the juror at issue, either of which would have been sufficient to suрport its decision. As a result, we reject Smith‘s claim that the trial court abused its discretion.
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.