Appellant Roderick Smith was convicted of malice murder and other offenses arising out of the shooting death of his girlfriend, Sherita Dunham. Smith appeals his conviction and sentence and the order denying his motion for new trial.
1. The record belies Smith’s claim that the trial evidence was insufficient to support his conviction. Viewed in a light most favorable to the verdict, the evidence showed Smith shot the victim because he believed she was the one who took $400 in cash and his cell phone from his bedside table while he was asleep at the rooming house where he was living. Both Smith and other witnesses testified the victim hada substance abuse problem, and Smith testified he attempted to keep her from using money he had saved to purchase drugs. Others at the house on the evening in question testified Smith became increasingly angry as the night progressed after he awoke and discovered the missing property and the victim failed to return home. Smith left the house during the night to search for the victim but returned home without her. The shooting occurred when the victim returned to the house the next morning. A witness testified he walked to the door of the house with the victim who did not appear to be injured at that time. He saw
From the trial evidence, however, a jury could conclude that the evidence refuted Smith’s statements to investigators, as well as his testimony at trial, that the shooting was an accident. At trial, Smith initially testified he was trying to clear the weapon from the victim’s reach when it went off. On cross-examination, Smith admitted that at some point the gun was obviously pointed at the victim but continued to claim the gun went off accidentally He also admitted he had been angry at the victim for taking money the two had agreed to save for their future. Expert testimony established that the gun found in pieces in the yard of the house where the victim was shot was able to be fired for ballistic testing and that the bullet recovered from the victim’s body was fired from that .32 caliber revolver. The medical examiner who conducted the autopsy on the victim’s body testified the fatal gunshot wound was a contact wound sustained when the barrel of the gun was placed with “quite a bit of force” against the victim’s chest. Additionally, witnesses testified that Smith and the victim frequently fought and sometimes the fights would get physical.
“Despite the evidence presented and arguments made by appellant, resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder and not this Court.” Philpot v. State,
Smith also argues the trial court erred by failing to exercise its discretion to grant a new trial pursuant to the general grounds set forth in OCGA §§ 5-5-20 and 5-5-21, because the verdict was contrary to the evidence or was decidedly and strongly against the weight of the evidence, and that the evidence was sufficiently close to warrant the trial court in its discretion to grant a new trial acting as the “thirteenth juror.” Smith also asserts that this Court should grant a new trial for those reasons. A motion for new trial on these grounds, however, is not properly addressed to this Court as such a decision is one that is solely within the discretion of the trial court. See Slaton v. State,
2. We reject Smith’s assertion that the trial court erred by failing to grant his motion to strike a particular juror for cause. That juror stated in response to questioning by the prosecutor that she “[had] a problem” with men hitting women, and that eighteen to nineteen years ago she had been the victim of domestic violence that sent her to the hospital. When asked whether her personal experience would make it difficult, for her to be a fair and impartial juror, the juror initially stated she did not know how to answer that question. When further asked if she would be able to judge this defendant based solely upon the information learned at trial, she affirmed that she could do that. In response to questioning by Smith’s counsel, the juror responded that she would not hold any bias against the defendant based upon her prior personal experiences.
This Court reviews a denial of a request to excuse a prospective juror for cause for abuse of the trial court’s discretion. See Akhimie v. State,
3. Smith asserts ineffective assistance of trial counsel in two respects. First, Smith points to trial counsel’s decision to waive the previously filed pre-trial motion to suppress Smith’s custodial statements to the investigators, as well as counsel’s failure to make an in-trial objection to admission of evidence and testimony relating to those statements. During his interrogation Smith disclosed the location of the weapon parts that were recovered from the back yard of the house where the crimes occurred. Smith claims these statements were obtained unconstitutionally since at the time he made them he had not waived his previously asserted right to counsel, though we note that conflicting evidence was presented as to the voluntariness of his statements. He further claims that the weapon introduced at trial was therefore obtained as fruit of the poisonous tree, and that both his custodial statement and certain trial exhibits would have been excluded if counsel had raised the proper objections. Because this evidence was highly prejudicial and because he claims trial counsel’s performance was deficient by waiving and failing to raise the objections, Smith asserts he has demonstrated ineffective assistance of counsel.
(a) With respect to the withdrawal of the previously filed motion to suppress, trial counsel stated on the record during trial that her decision to withdraw the motion to suppress was based on trial strategy At the motion for new trial hearing, counsel testified that during the trial, before Smith’s custodial statements were introduced, she learned that Smith wanted to testify. Her decision to withdraw the motion to suppress was based upon her knowledge that once Smith testified, his custodial statement would be admitted for purposes of impeachment. “Deliberate choices of trial strategy and tactics are within the province of trial counsel after consultation with [her]
(b) With respect to trial counsel’s failure to object to the introduction of the weapon at trial, Smith failed to establish either prong of the Strickland test since he failed to question trial counsel at the motion for new trial hearing about her decision not to object. Counsel’s trial decisions are presumed to be strategic, and, absent some evidence to the contrary, an appellant fails to overcome the strong presumption that trial counsel’s performance fell within the range of reasonable professional conduct and was not deficient. See Lane v. State,
4. The trial court’s sentencing order recites that the conviction for Count 6, possession of a firearm by a convicted felon, merged into the murder conviction. As this is a crime that requires proof of elements not included in malice murder, i.e., possession of a firearm and the status of being a convicted felon, this conviction did not merge as a matter of fact with Smith’s murder conviction. See Jones v. State,
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
The crimes occurred on September 27, 2008. On December 23, 2008, a Fulton County grand jury returned an indictment charging appellant with malice murder (Count 1); felony murder (aggravated assault by shooting the victim with a handgun) (Count 2); felony murder (possession of a firearm during the commission of a felony) (Count 3); aggravated assault with a deadly weapon (Count 4); possession of a firearm during commission of a felony (Count 5); and possession of a firearm by a convicted felon (Count 6). Appellant was tried March 30 through April 2, 2014, and the jury returned a verdict of guilty on all counts. The trial judge sentenced appellant to life imprisonment for the conviction for malice murder and imposed a five-year sentence to be served consecutively for the conviction for possession of a firearm during commission of a felony (Count 5). The felony murder convictions were vacated by operation of law. The aggravated assault conviction (Count 4) merged into the murder conviction, but the conviction for possession of a firearm by a convicted felon (Count 6) did not merge. As noted in Division 4 of this opinion, the sentence is vacated in part and the case is remanded for further sentencing on Count 6. On April 27, 2009, appellant filed a motion for new trial which was later amended. Following an evidentiary hearing, the trial court denied the motion for new trial as amended by order entered July 23, 2014. Appellant filed a timely notice of appeal. The case was docketed in this Court to the September 2016 term for a decision to be made on the briefs.
As this Court reiterated in Ridley, the weight of the evidence ground for new trial under the general grounds “is addressed to the trial court alone, not an appellate court.” Because the jury considers the weight of the evidence at trial and the trial court, sitting as the “thirteenth juror,” considers the weight of the evidence when ruling on this ground for a new trial, this Court considers only the sufficiency of the evidence that was considered by the jurors in arriving at the verdict. Ridley, supra,