Malcolm v. State, S93A1015

Citation434 S.E.2d 479,263 Ga. 369
Decision Date20 September 1993
Docket NumberNo. S93A1015,S93A1015
PartiesMALCOLM v. The STATE.
CourtSupreme Court of Georgia

Carla J. Friend, Atlanta, for Malcom.

Samuel W. Lengen, Asst. Dist. Atty., Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Rachelle L. Strausner, Staff Atty., Atlanta.

Carl Greenberg, Asst. Dist. Atty., Atlanta, for other appellee.

CARLEY, Justice.

Based upon his fatal shooting of one victim, appellant was indicted for five offenses: malice murder; felony murder while in the commission of an aggravated assault; felony murder while, as a convicted felon, in the possession of a firearm; aggravated assault; and, possession of a firearm by a convicted felon. He was tried before a jury and found guilty on all five counts. The trial court imposed three life sentences on the murder counts and a sentence to a term of years on each of the remaining two counts. Appellant's motion for new trial was denied and he appeals. 1

1. Appellant enumerates the general grounds.

Sufficient evidence of appellant's guilt was adduced through the testimony of an eyewitness. Contrary to appellant's contention, no corroboration of this testimony was necessary, since the eyewitness was not an accomplice. Collins v. State, 251 Ga. 521, 523(1), 307 S.E.2d 496 (1983); Strong v. State, 232 Ga. 294, 300-301, 206 S.E.2d 461 (1974). Moreover, corroboration did exist, in the form of another witness' testimony regarding appellant's flight from the scene immediately following the shooting. Brown v. State, 199 Ga.App. 18, 23(4)(d), 404 S.E.2d 154 (1991). The credibility of the testimony of the State's witnesses, including that of the eyewitness, was for the jury. OCGA § 24-9-80. A rational trier of fact could have found proof of appellant's guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The trial court's admission of evidence of appellant's commission of another homicide is enumerated as error.

Although the procedural requirements of Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991) were satisfied, appellant urges that the relevance of the evidence was not outweighed by its prejudicial effect. See Campbell v. State, 234 Ga. 130, 131-132, 214 S.E.2d 656 (1975). However, both homicides had occurred only 30 days apart and each had been committed in the same general vicinity where appellant was engaged in the illegal sale of drugs. The victim in the instant case was shot because he would not buy drugs from appellant, while the victim in the other homicide was shot because he was believed to have taken drugs from one of appellant's sellers. The nature of the two offenses and the circumstances surrounding their commission were sufficiently similar, and indeed interconnected, such that the relevance of the other homicide to show appellant's scheme, motive, bent of mind and identity in the present case outweighed any prejudice. See Campbell v. State, supra at 132, 214 S.E.2d 656; Childs v. State, 202 Ga.App. 488, 489(1), 414 S.E.2d 714 (1992); Freese v. State, 196 Ga.App. 761, 763(3), 396 S.E.2d 922 (1990); Roney v. State, 192 Ga.App. 760, 763(2), 386 S.E.2d 412 (1989). "[T]he evidence was not overly prejudicial here, as the jury was [given detailed limiting instructions before the evidence was admitted and at the close of the case]." Tuzman v. State, 145 Ga.App. 761, 763(1)(A), 244 S.E.2d 882 (1978). See also Childs v. State, supra 202 Ga.App. at 489(1), 414 S.E.2d 714.

3. The trial court's refusal to allow certain laboratory reports into evidence is enumerated as error.

Appellant laid a proper foundation for admission of the laboratory records under the business records exception to the hearsay rule. However, those portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not before the court are not admissible under that exception to the hearsay rule. Baker v. State, 251 Ga. 464, 465(2), 306 S.E.2d 917 (1983); Hurt v. State, 239 Ga. 665, 673(10), 238 S.E.2d 542 (1977). Accordingly, if the laboratory reports at issue in the instant case contained

the opinions or conclusions of ... third part[ies] not before the court, those portions of the report are inadmissible hearsay until a proper foundation has been laid, "i.e., [each] person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based." [Cits.] Department of Human Resources v. Corbin, 202 Ga.App. 10, 413 S.E.2d 484 (1991).

See also Spivey v. State, 184 Ga.App. 118, 361 S.E.2d 9 (1987).

Appellant does not contend that the excluded laboratory reports contained only admissible test results and not opinions and conclusions for which no foundation had been laid. Compare Oldham v. State, 205 Ga.App. 268, 270(1), 422 S.E.2d 38 (1992). The excluded laboratory reports are not included in the record. Even if it were not otherwise apparent from the transcript that they did contain opinions and conclusions for which no foundation had been laid, their contents are certainly not set forth in sufficient detail to show that they contained only admissible test results.

"The burden is on the appellant to show error by the record, and when a portion of the evidence ... bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cits.]" [Cit.] Department of Human Resources v. Corbin, supra 202 Ga.App. at 11, 413 S.E.2d 484.

4. Appellant urges that the trial court erred in imposing a life sentence on all three murder counts.

A single homicide can result from facts sufficient to support both malice and felony murder. Malice is not an element in a trial for felony murder but the presence of malice does not bar a felony murder conviction. Likewise, the existence of a felony is not an element in a trial for malice murder but its presence is no bar to a malice murder conviction. When the elements of malice and an underlying felony both exist in a murder case, the law does not preclude verdicts of guilty of both malice and felony murder. However, where there is a single victim, the defendant may be sentenced on either but not both. [Cits.] Smith v. State, 258 Ga. 181, 183(2), 366 S.E.2d 763 (1988).

As discussed in Division 1, the evidence was sufficient to authorize a finding of appellant's guilt for malice murder. CompareHendrick v. State, 257 Ga. 514, 515(3), 361 S.E.2d 169 (1987). It follows that the trial court erred in failing to sentence appellant only on the malice murder count and that the separate sentences on the two alternative felony murder counts must be vacated. "The conviction[s] of felony murder [were] simply surplusage, which [should] properly [have been] disposed of by the trial [court's] sentence of only one life sentence for the [three] murder counts." Biddy v. State, 253 Ga. 289, 292(2), 319 S.E.2d 842 (1984). See also Wade v. State, 258 Ga. 324, 325(2), 368 S.E.2d 482 (1988).

5. Appellant further urges that the trial court erred in imposing separate sentences on the aggravated assault and possession of a firearm by a convicted felon counts.

Those two offenses were the underlying felonies in the two felony murder counts. Since those two offenses would otherwise merge, as a matter of law, into the felony murder counts and appellant's felony murder convictions must be vacated for the reasons discussed in Division 4, he contends that the trial court erred in imposing separate sentences for those two offenses. There is authority for appellant's contention. In Moss v. State, 262 Ga. 702, 425 S.E.2d 289 (1993), the defendant was found guilty of malice murder, felony murder and aggravated assault of one victim and given separate sentences. We held:

The aggravated assault charge, as the underlying charge of felony murder, merges with the felony murder charge ( [cit.] ), and the felony murder charge stands vacated by operation of OCGA § 16-1-7. [Cit.] Accordingly, we vacate the convictions and sentences for felony murder and for the aggravated assault of the murder victim. [Cit.] (Emphasis supplied.) Moss v. State, supra at 703(3), 425 S.E.2d 289.

Thus, under Moss, the merger, as a matter of law, of the underlying felony into a vacated felony murder conviction forecloses any determination as to whether a separate sentence on the underlying felony may nevertheless be authorized for lack of merger, as a matter of fact, into the extant malice murder conviction.

Moss is in seeming conflict with the holdings in Hutchins v. State, 261 Ga. 366, 367(3), 404 S.E.2d 548 (1991) and Renner v. State, 260 Ga. 515, 519(6), 397 S.E.2d 683 (1990). If a defendant has been found guilty only of felony murder, the underlying felony would certainly be deemed to have merged, as a matter of law, into the felony murder and a separate sentence for that underlying felony would not be authorized. See Johnson v. State, 254 Ga. 591, 595(4), 331 S.E.2d 578 (1985) (cited in Moss, supra 262 Ga. at 703(3), 425 S.E.2d 289). If, however, a valid guilty verdict is also returned on an alternative count of malice murder, it is proper for the trial court to treat the felony murder count as merely surplusage and then to proceed to determine whether the underlying felony did or did not merge, as a matter of fact, into the malice murder count. Hutchins v. State, supra; Renner v. State, supra.

If by "conviction" one means the judgment or sentence pronounced by the court ( [cit.] ) then it is true that one may not be "convicted" for both felony murder and the underlying felony. However, a jury may return guilty verdicts as to each and if one is not sentenced for the felony murder (but for malice murder, for example) then one can be...

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