Smith v. State

• Citation: 270 Ga. 240,510 S.E.2d 1
• Decision Date: 09 November 1998
• Docket Number: No. S98P0790.,S98P0790.
• Parties: SMITH v. The STATE.
• Court: Supreme Court of Georgia

510 S.E.2d 1

270 Ga. 240

SMITH v. The STATE.

No. S98P0790.

Supreme Court of Georgia.

November 9, 1998.

John A. Beall, IV, Jonesboro, for David Phillip Smith.

Robert E. Keller, Dist. Atty., David Brandon Hornsby, Asst. Dist. Atty., Jonesboro, Thurbert E. Baker, Atty. Gen., Christopher L. Phillips, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Stephen C. Bayliss, Michael Mears, Multi-County Public Defender, James C. Bonner, Jr., Georgia Indigent Defense Council, Atlanta, Joseph L. Chambers, Sr., Prosecuting Attorney's Council of GA, Smyrna, Thomas Michael Martin, Jonesboro, for other interested parties. HINES, Justice.

David Phillip Smith was convicted of the malice murder of Jeremy Javies as well as theft by receiving stolen property and possession of a firearm during the commission of a felony.¹ The jury recommended a death sentence, finding as aggravating circumstances that the murder was committed while the defendant was engaged in the commission of an aggravated battery; and that the murder was outrageously and wantonly vile, horrible, and inhuman in that it involved an aggravated battery to the victim and torture. OCGA § 17-10-30(b)(2); (b)(7). Smith appeals his convictions and sentences. Because Smith was prevented from introducing relevant evidence in the guilt/innocence phase, we reverse Smith's convictions for murder and possession of a firearm during the commission of a felony. We affirm his conviction for theft by receiving stolen property.

The evidence presented at trial showed that Smith purchased a sawed-off 12-gauge shotgun from an acquaintance who had stolen the gun during a burglary. Smith also had a sawed-off 16-gauge shotgun. On March 22, 1995, Smith went to the home of a friend, Jeremy Javies, who was 16 years old, and got into an argument with Javies on the front porch. Javies' mother heard the argument but could not discern what they were arguing about. After the argument, Javies came inside and told his mother, "You don't have to worry about seeing David come over here no more because I told him if he didn't get rid of the guns that you was gonna go to the police."

Later that night, Smith and Javies went into the woods with the shotguns. Neighbors heard one shot, a pause of 1-2 minutes, and then a rapid series of additional shots. About fifteen minutes later, Lamar Hopkins, an acquaintance of Smith, saw Smith walking on a nearby road carrying both shotguns in a blue book bag. Smith told Hopkins that he had just killed Javies, and Hopkins went with him to a place in the woods where he hid the shotguns. Two additional witnesses also saw Smith walking on the road carrying the book bag within minutes of the shooting. Hopkins further testified that Smith had been angry with Javies on the day before the shooting, and that Smith told him that he shot Javies because he was afraid that Javies was going to tell on him for possessing the shotguns.

Javies' body and the book bag containing the shotguns were found the following day. Javies had six and possibly seven gunshot wounds: four wounds to the arms and shoulders, a press-contact shot to the neck that had fractured the vertebrae, and one and possibly two press-contact shots to the face. All of the wounds were inflicted by a 12-gauge shotgun. At trial, Smith admitted shooting Javies, but claimed that Javies had first fired at him with the 16-gauge shotgun.

The evidence was sufficient to enable a rational trier of fact to find Smith guilty 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).

Pretrial Issues

1. The trial court did not err by denying Smith's plea in bar to prevent the seeking of the death penalty in his case due to alleged gender discrimination by the Clayton County district attorney. Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998). Smith failed to show that the decision-makers in his case acted with discriminatory intent. See id.; McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Stephens v. State, 265 Ga. 356, 357(1), 456 S.E.2d 560 (1995).

2. Smith complains that the State obtained improper access to his juvenile record during the discovery process for two reasons: 1) a detective viewed Smith's juvenile file in violation of OCGA §§ 15-11-58 and 15-11-59; and 2) a later juvenile court proceeding where the State was given permission to copy portions of the file was outside the scope of the Unified Appeal Procedure ("UAP"). A defendant's juvenile court record is admissible as aggravation evidence in the sentencing phase of a capital trial. Burrell v. State, 258 Ga. 841, 844(7), 376 S.E.2d 184 (1989); OCGA § 15-11-38(b). The record shows that the detective complied with OCGA § 15-11-59(c) because he obtained the consent of the juvenile court judge before examining Smith's file. Later, when the State wanted to copy portions of the file, it sought permission in a juvenile court hearing that Smith complains was invalid because it was outside the scope of the UAP. The UAP, however, is a mechanism designed to ensure that all legal issues are raised on behalf of a defendant and that the occurrence of error is minimized. UAP § I(A). It is not intended to bar legal proceedings outside the Superior Court that may be necessary for the litigation of a capital case. Therefore, we find no error.

Voir Dire

3. The trial court did not err by excusing a prospective juror due to her inability to consider a possible death sentence. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997).

The Guilt/Innocence Phase

4. Smith argues that he was prevented from introducing evidence that was relevant to his claims of self-defense and voluntary manslaughter. We agree. At the start of the trial, the State filed a motion in limine to prevent Smith from presenting evidence or questioning witnesses regarding two incidents that occurred two days before the shooting. The State claimed that these two incidents were irrelevant and that they amounted to impermissible bad character evidence regarding the victim. OCGA § 24-2-2. The State also claimed that the defense violated Uniform Superior Court Rules 31.1 and 31.6 by failing to provide notice of its intent to introduce evidence of these incidents, because they were past violent acts by the victim. The trial court ruled that the incidents were irrelevant, and therefore inadmissible, because they occurred two days before the shooting. The trial court also ruled that the evidence was inadmissible due to Smith's failure to comply with Uniform Superior Court Rule 31.6.

The first incident involved a man, Troy Fitzgibbons, who had called the police and reported that he had seen Smith and the victim carrying sawed-off shotguns. The second incident involved an acquaintance of Smith, Steve McLendon, who was approached by Smith and the victim. Smith and Javies asked him if he would like to join them in a scheme to shoot someone and take his money. During this solicitation, Smith and Javies each had a sawed-off shotgun. According to the defense proffer and the discovery that was made a part of the record, Fitzgibbons and McLendon gave written statements to the police concerning these incidents and both men were able to identify the shotguns found in the blue book bag as the shotguns carried by the defendant and the victim.

"The most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. [cits.]." Southern R. Co. v. Lawson, 256 Ga. 798, 802(4), 353 S.E.2d 491 (1987). Smith's desired inferences were that Smith had no motive to murder Javies, and that Javies had fired at him first. The excluded evidence rendered Smith's desired inferences more probable because it supported Smith's claim that he and the victim had gone into the woods to test-fire their guns in anticipation of a robbery, rebutting the State's assertion that Smith had lured the victim into the woods to kill him so he could not report Smith's possession of the shotguns, and because it showed that the victim possessed one of the shotguns and therefore could have fired at Smith first. Without the testimony of Fitzgibbons or McLendon, the only witness able to place the 16-gauge shotgun in the victim's hands was the defendant; and the jury was likely to view his testimony as self-serving. This evidence was relevant.

Further, these two incidents were not subject to the notice provisions of Uniform Superior Court Rule 31.6. Rule 31.6 was created pursuant to Chandler v. State, 261 Ga. 402, 405 S.E.2d 669 (1991), which permitted a defendant claiming justification to introduce evidence of "specific acts of violence by a victim against a third party," provided the State is given pretrial notice. Id. at 407-408(3), 405 S.E.2d 669. It is undisputed that Smith did not provide the State with pretrial notice of his intent to introduce evidence of the Fitzgibbons and McLendon incidents. Therefore, the relevant inquiry is whether carrying a sawed-off shotgun and soliciting a person to help commit a robbery and murder constitute "specific acts of violence by [Javies] against a third party." We conclude that they do not under the facts of this case because the State cannot point to a specific victim of these alleged acts of violence. The carrying of the shotgun was a possession offense, OCGA §§ 16-11-122 and 16-11-123, and the solicitation never proceeded to the selection of a victim and the carrying out of the plan. There was no evidence that anyone was harmed. See Bennett v. State, 265 Ga. 38, 40-41(3), 453 S.E.2d 458 (1995) (victim's prior convictions for burglary not admissible under Chandler as previous acts of violence against a third party because there was no evidence that anyone was harmed); Lowe v. State, ...