Smith v. State, S00A1785.

• Decision Date: 22 January 2001
• Docket Number: No. S00A1785.,S00A1785.
• Citation: 273 Ga. 356,541 S.E.2d 362
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

541 S.E.2d 362

273 Ga. 356

SMITH v. The STATE.

No. S00A1785.

Supreme Court of Georgia.

January 22, 2001.

Patrick G. Longhi, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Adam M. Hames, Assistant Attorney General, for appellee.

CARLEY, Justice.

A jury found Kenyama Smith guilty of felony murder, armed robbery, and aggravated assault. Merging the armed robbery and aggravated assault counts into the felony murder count, the trial court sentenced Smith to life imprisonment. The trial court denied a motion for new trial.¹

1. Construed most strongly in favor of the verdict, the evidence shows that Smith grabbed something from the victim at gunpoint, shot him in the leg, and then struggled over control of the weapon. Smith's co-conspirator, Courtney Williams, waited around a corner and shot the victim when his back was turned. Both Smith and Williams then reached into the victim's pockets and fled. The jury may infer criminal intent from conduct before, during, and after commission of the crime. Parks v. State, 272 Ga. 353, 354, 529 S.E.2d 127 ( 2000). The evidence demonstrates that Smith committed the underlying felonies while acting in concert with the actual shooter. Parks v. State, supra at 354-355, 529 S.E.2d 127; Martin v. State, 271 Ga. 301, 304(1), 518 S.E.2d 898 (1999). Compare Hyman v. State, 272 Ga. 492, 493(1), 531 S.E.2d 708 (2000). The evidence was sufficient to enable a rational trier of fact to find Smith guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Smith contends that the trial court erred in admitting evidence of a similar transaction without a sufficient showing of similarity or logical connection to the crimes charged here. The trial court admitted the similar offense to show motive, intent, course of conduct, and bent of mind. When similar transaction evidence is admitted for these purposes, a lesser degree of similarity is required than when such evidence is introduced to prove identity. Fields v. State, 223 Ga.App. 569, 571(2), 479 S.E.2d 393 (1996). See also Raulerson v. State, 268 Ga. 623, 631(8), 491 S.E.2d 791 (1997). The victim of the similar crime testified that Smith attempted to take money from him at gunpoint, struggled briefly with him, chased and cornered him, and shot him in the leg. Moreover, the incidents occurred about a month apart at the same time of day in the same part of town. An appellate "[c]ourt should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous. [Cit.]" Roberts v. State, 241 Ga. App. 259, 261(3), 526 S.E.2d 597 (1999). See also Stephens v. State, 261 Ga. 467, 469(6), 405 S.E.2d 483, fn. 2 (261 Ga. 467,405 S.E.2d 483) (1991). Because of the substantial similarities, along with the minimal lapse of time, the trial court's allowance of evidence of the similar crime was not clearly erroneous. See Raulerson v. State, supra at 631(8), 491 S.E.2d 791.

3. Smith urges that his trial counsel rendered ineffective assistance in connection with her unsuccessful attempt to exclude a witness from testifying. Smith's trial attorney sought to exclude this witness because the State had provided inaccurate address and phone numbers. OCGA § 17-16-8(a). The trial court applied the appropriate remedy by giving counsel the opportunity to interview the witness. Berry v. State, 268 Ga. 437, 440(3), 490 S.E.2d 389 (1997). See also Massey v. State, 272 Ga. 50, 51(4), 525 S.E.2d 694 (2000). Smith's lawyer stated that she could complete her interview in five minutes, and she did not renew her objection. This witness' testimony was cumulative of that given by three other eyewitnesses, and Smith has not shown how the brevity of the interview prejudiced his defense.

Smith also contends that his trial attorney was not prepared to call any witnesses. The record reveals that defense counsel made a great effort to locate potential witnesses and, in fact, interviewed several of them. However, she made a strategic decision not to call any of them. Moreover, the trial attorney's failure to call witnesses cannot be deemed prejudicial because Smith has not showed that their testimony would have been...