Green v. State, S07A1779.

• Court: Supreme Court of Georgia
• Citation: 283 Ga. 126,657 S.E.2d 221
• Docket Number: No. S07A1779.,S07A1779.
• Parties: GREEN v. The STATE.
• Decision Date: 11 February 2008

657 S.E.2d 221 283 Ga. 126 GREEN
v.
The STATE. No. S07A1779. Supreme Court of Georgia. February 11, 2008.

[657 S.E.2d 222]

John L. Tracy, Fitzgerald, Timothy Lee Eidson, Cordele, for Appellant.

Denise D. Fachini, Dist. Atty., Cheri Lee Nichols, Asst. Dist. Atty.; Mary N. Kimmey, Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Dept. of Law, Atlanta, for Appellee.

SEARS, Chief Justice.

The appellant, Andre Green, appeals from his convictions for felony murder and arson stemming from the death of Frances McKeller.¹ On appeal, Green contends that the evidence is insufficient to support his convictions and that the trial court erred in sentencing him for the arson conviction since arson served as the underlying felony for the felony murder conviction. Although we conclude that the evidence is sufficient to support Green's conviction for felony murder, we also conclude that the trial court erred in sentencing Green on the arson conviction. Accordingly, we affirm the trial court's judgment in part and vacate it in part.

The evidence at trial would have authorized a jury to find that Green rented a downstairs room in the house of the victim and that, on the evening of March 9, 2005, Allen Young and David Evans, two of McKeller's neighbors, noticed that her home was on fire. Young and Evans knocked on the front door, but nobody answered. Young then broke a window and unlocked the front door. Young stated that he [283 Ga. 127] could see smoke in the downstairs part of the house and that, when he entered the house, he saw Green standing in the victim's living room. Young asked Green where the victim was, and Green responded that he thought she was upstairs.' Young then asked Green whether he knew the house was on fire, and Green stated that he did not know because he had been asleep. Young added that Green was wearing shoes and was completely dressed, that he did not look like he had been just awakened, and that Green's bed was neatly made and did not look like it had been recently slept on. Young added that, at that point, the ceiling above Green's bed began to bubble and fall down. Young then asked Green how to get to the victim's room, and Green led Young to the door leading upstairs and knocked on it. When there was no response, Young opened the door, and attempted to go upstairs. He testified, however, that thick smoke and heat kept him from being able to go upstairs.

David Evans testified essentially to the same sequence of events as Young, reiterating that when he and Young went into the house, Green was standing in the living room and was fully dressed. Evans added that Green's bed was made very nicely "like nobody had[ ] been in there."

Firefighters soon arrived at the burning home, finding the victim's body in her upstairs bedroom. Bruce Gorley, an arson investigator, testified that the victim's kitchen had a number of oil lamps in it and that he found the parts of an oil lamp dismantled on the second floor of the victim's home. The parts of the lamp, including the base with only a small amount of oil remaining in it, the lamp's wick, and the lamp's globe, were all found near the top of the stairs leading to an upstairs sitting room where the fires in question originated. The sitting room was next to the victim's bedroom. Gorley testified that there were "two fires ... started within this room." He elaborated that there was

657 S.E.2d 223

evidence of the use of an accelerant at two places in the sitting room. One point of origin was the right arm of a love seat that was heavily burned and another point of origin was on the floor below the left arm of the love seat. Gorley added that "an ignitable liquid [was] poured as a trailer" and connected the two areas. Gorley stated that he thought the oil lamp was the fuel source and "had been poured on the floor" and then trailed over the arm of the love seat. Gorley added that the fire on the love seat resulted in a smoldering fire that produced heavy soot in the upstairs of the house, And that the fire on the floor burned hotter, quicker, and cleaner than the fire on the love seat. Green's downstairs bedroom was directly below the sitting room, and the fire on the floor of the sitting room burned a hole through his ceiling.

Gorley testified that the victim's body was found slumped over the barrel portion of a barrel lamp that was over four feet long and [283 Ga. 128] that the lamp appeared to have been purposefully lodged under the bed in order to prop up the body. Gorley added that the lamp had been on a table next to the victim's bed; that the table was covered with soot except where the feet of the lamp had been positioned on it; and that the light bulb on the lamp was not broken. Similarly, Gorley testified that there was a distinct, bare footprint in the soot next to the victim's body and that the victim's feet were smaller than the foot that left the footprint. According to Gorley, the footprint in the soot would not have been made while the second fire was burning due to the danger to the person involved. Moreover, he stated that the victim's skin was blistered and that the victim's bedroom was never hot enough to cause the blistering, leading him to conclude that the victim had been moved from the sitting room to her bedroom. Various factors, including the footprint in the soot, the lack of soot where the feet of the lamp...