Sims v. State
| Decision Date | 20 February 1995 |
| Docket Number | No. S94A1225,S94A1225 |
| Citation | 453 S.E.2d 33,265 Ga. 35 |
| Parties | SIMS v. The STATE. |
| Court | Georgia Supreme Court |
Brooks S. Franklin, Atlanta, for Sims.
J. Tom Morgan, Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Atlanta, Thomas S. Clegg, Asst. Dist. Atty., Barbara B. Conroy, Sp. Asst. Dist. Atty., Decatur, for State.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta.
Marla-Deen Brooks, Asst. Atty. Gen., Atlanta.
Edward James Sims was sentenced to life imprisonment for the shooting death of Lymus Pettaway. 1 We affirm.
The grand jury indicted Sims for malice murder (count one), felony murder with aggravated assault as the underlying felony (count two), felony murder with possession of a firearm by a convicted felon as the underlying felony (count three), aggravated assault (count four), and possession of a firearm by a convicted felon (count five). At the trial on the first four counts, the jury returned a verdict of guilty of voluntary manslaughter on the malice murder count, guilty of both felony murder counts, and guilty of aggravated assault. The trial court merged counts one, two, and four and sentenced Sims to life in prison on count three.
1. The state presented evidence that Pettaway stabbed Sims' nephew, Fernando Hunter, after Hunter refused to loan ten dollars to Pettaway. While driving around later that day searching for Pettaway, Sims and Hunter saw him in another vehicle and shot him. Pettaway drove away and crashed in a cemetery, dying in a hospital from a gunshot wound. Reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Sims guilty of felony murder beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. There is no merit to Sims' contention that the trial court erred in failing to direct a verdict of acquittal on the charge of felony murder with the underlying felony of aggravated assault. Because the trial court did not enter a judgment on that count, we find no error.
3. Sims also seeks a reversal of the conviction and sentence on count three. He asks this court to extend the rule adopted in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), to a conviction for felony murder when the underlying felony is possession of a firearm by a convicted felon.
In Edge, this court adopted a modified merger rule, holding that a defendant could not be convicted and sentenced for felony murder based on aggravated assault as the underlying felony when the jury also convicted the defendant of voluntary manslaughter. The rationale for that ruling was that the malice imputed from the underlying felony to support the felony murder conviction was absent when the jury found that provocation and passion mitigated the assault. As Edge pointed out, "this problem does not exist if the underlying felony is independent of the killing," such as burglary or robbery. Id. at 867 n. 3, 414 S.E.2d 463. Instead, the rule applies only "where the aggravated assault is perpetrated against the homicide victim and is an integral...
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