Fоllowing a jury trial, Robert Smith was found guilty of malice murder, felony murder, and other offenses in connection with the shooting death of his friend, Raymond Brewer, Jr.
1. Viewed in the light most favorable to the jury’s verdict, the record shows that, in the early morning of April 4, 2010, Smith was arguing with Brewer in an apartment that the two men shared with Smith’s girlfriend and several other peоple. According to witnesses, the men were arguing about, among other things, an altercation that had occurred roughly a week before where Brewer had pushed Smith to the ground, causing Smith tо get a scratch on his head. While the men were arguing, Smith retrieved a gun from a closet in the apartment, and he threatened to kill Brewer. Smith then walked into the hallway of the apartment where Brewer was standing and shot him several times, killing him.
The evidence was sufficient to enable a rational trier of fact to find Smith guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia,
2. Although the evidence was sufficient to sustain Smith’s convictions, we have discovered an error with respect to the trial court’s sentencing of Smith. Specifically, although the trial cоurt announced at sentencing that it would merge the aggravated assault count against Smith into the malice murder count against him for sentencing purposes and that it would sentence Smith to five consecutive years for possession of a firearm during the commission of a felony, in the final disposition sheet the trial court instead merged the possession of a firearm count into the malice murder count for sentencing purposes and sentenced Smith to five consecutive years for aggravated assault. This was error, as “possession of a firearm during the commission of a felony does not merge into [a] conviction for [malice] murder.”
3. Smith contends that the trial court committed plain error in its jury charge on witness credibility.
[fjirst, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affeсted the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
(Citations, punctuation and emphasis omitted.) State v. Kelly,
The jury charge in question stated:
In deciding credibility, you may consider all of the facts and circumstances of the case, the manner in which the witnesses testify, their intelligence, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, and the occurrences about which they testify You may also consider their рersonal credibility insofar as it may have been shown in your presence and by the evidence.
Smith contends that the charge was erroneous because it included the “intelligence” оf the witnesses as a factor that jurors were allowed to consider when evaluating credibility. However, this Court has previously reviewed jury charges where intelligence is given as a factоr that may be considered with respect to witness credibility and found no reversible error where, as here, “[t]he court’s charge shows that the intelligence factor was not highlighted or singled out; [as intelligence] was [just] one of several factors which could be considered.” Ward v. State,
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
On July 2, 2010, Smith was indicted for malice murder, felony murder predicated on aggravаted assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. Following an August 23-24, 2011 jury trial, Smith was found guilty on all counts. On August 25, 2011, Smith was sentenced to life imprisonment for malice murder. Although the trial court had announced at sentencing that it would merge the aggravated assault count into the malice murder count for sentencing purposes and that it would sentence Smith to five consecutive years for possession of a firearm during the commission of a felony, the final disposition sheet indicates that the trial court instead merged the possession of a firearm count into the malice murder count for sentencing purposes and sentenced Smith to five consecutive years for aggravated assault. The trial сourt also purported to merge the felony murder count into the malice murder count for sentencing purposes. Smith filed a motion for new trial on September 23, 2011, which he amended on Aрril 10, 2013. The trial court denied the motion on September 15, 2014. Following the payment of costs, Smith’s timely appeal was docketed to the term of this Court beginning in December 2016 and submitted for decision on the briefs.
We also note that the trial court’s final disposition sheet should have indicated that the felony murder count against Smith was “vacated by operation of law” rather than “merged” intо the malice murder count for sentencing purposes. See Malcolm v. State,
Because Smith did not object to this jury charge at trial, our review of this issue is limited to an analysis for plain error. See, e.g., Clark v. State,
The trial court charged the jury in relevant part:
In applying the law of self-defense, a defendant is justified to kill or use force against another person in defense of self. The standard is whether the circumstances were such that they would excite not merely the fears of the Defendant but the fears of a reasonable person. For the killing or use of force to be justified under the law, the accused must truly have acted under the influence of these fears and not in a spirit of revenge.
[A] person has the right to defend himself, but a person is not justified in deliberately assaulting another person solely in revenge for a рast or previous wrong, regardless of how serious the past or previous wrong might have been, when the episode involving the previous wrong has ended. Such person is not justified by acting out of revenge by deliberately seeking out and assaulting the alleged wrongdoer.