Smith v. State

• Citation: 485 S.E.2d 189,268 Ga. 42
• Decision Date: 12 May 1997
• Docket Number: No. S97A0450,S97A0450
• Parties: , 97 FCDR 1625 SMITH v. The STATE.
• Court: Georgia Supreme Court

Page 189

485 S.E.2d 189

268 Ga. 42, 97 FCDR 1625

SMITH v. The STATE.

No. S97A0450.

Supreme Court of Georgia.

May 12, 1997.

David R. Montgomery, Hudson & Montgomery, Athens, for Shannon Smith.

Harry N. Gordon, District Attorney, and Richard L. Dickson, Assistant District Attorney, Athens, Paula K. Smith, Senior Assistant District Attorney, Atlanta, for The State.

HUNSTEIN, Justice.

Shannon Smith was found guilty of felony murder during the commission of an aggravated assault and armed robbery. Smith was sentenced to life imprisonment on each count. She appeals from the denial of her motion for new trial. ¹

1. Although not raised by Smith, we look to the general grounds. The evidence at trial established that during the robbery of a Golden Pantry convenience store by Smith's co-indictees Terrance Barnett, Cecil Bradford, Luke Morris and Shanadore Sims, the store clerk, Robert Klaver, was shot and killed. Although Smith was not present at the time the crimes were committed, the evidence showed that Smith, a former employee of the Golden Pantry convenience store chain, had aided and abetted in planning the commission of the robbery. Three accomplices testified that Smith instigated the robbery and used her knowledge as a former employee of the convenience store chain to give detailed instructions and suggestions to assist in carrying out the crime. Evidence was adduced that Smith had accompanied the other participants to the convenience store the day of the crime, ostensibly to get a job application, but actually for the purpose of inspecting the store prior to the robbery. Smith informed her accomplices of the time of day the store would have the most cash, how to disable the security camera, and planned the time the robbery was to occur. Smith denied any involvement in the incident, claiming that she was implicated by the other participants because she had refused to assist them. The evidence presented at trial was sufficient to authorize a rational trier of fact to find Smith guilty of the crimes charged beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-2-20 (party to a crime).

2. Smith contends that the trial court's preliminary instruction to the jury that "this is not a case in which you'll be sequestered or have to consider any issues in regard to sentencing in the event that it were to go that far," and the court's later instruction that "[y]ou are only concerned with the guilt or innocence of this accused. You're not to concern yourselves with punishment," constituted an expression or intimation of the court's opinion about her guilt in violation of OCGA § 17-8-57. ²

At the outset we note that any objections to these jury instructions were not preserved for review. In general, "[d]efense counsel may object to such portions of jury instructions as are perceived at trial to be error and may also reserve the right to raise additional objections on motion for new trial or on appeal." McCoy v. State, 262 Ga. 699(2), 425 S.E.2d 646 (1993). Smith did neither. We have followed this general rule in cases involving allegations such as Smith's, holding that the question of whether the statute has been violated is not reached unless an objection or motion for mistrial is made, or a general reservation of the right to object to the charges has been stated. Sims v. State, 266 Ga. 417(2), 467 S.E.2d 574 (1996); Rowe v. State, 266 Ga. 136(2), 464 S.E.2d 811 (1996). Smith made no contemporaneous objections and had no exceptions to the court's charge to the jury; accordingly, she waived the right to raise these issues on appeal. Id. Moreover, notwithstanding Smith's failure to preserve this issue for appeal, we find the enumeration to be without merit as the instructions given by the trial court were similar to instructions which have been consistently found acceptable. See e.g., Mullen v. State, 197 Ga.App. 26(4)(a), 397 S.E.2d 487 (1990); Prater v. State, 135 Ga.App. 341(2), 217 S.E.2d 644 (1975). ³

3. Smith's final claim that the trial court erred in admitting similar transaction testimony of Rebecca Richardson has also been waived due to Smith's failure to object to the introduction of the similar transaction evidence at trial. Buckner v. State, 219 Ga.App. 71(2), 464 S.E.2d 11 (1995). We additionally note that this argument lacks merit. The trial court conducted a hearing pursuant to Uniform Superior Court Rule 31.3(B) and ruled that Richardson's testimony was admissible. Richardson testified that she knew Smith while Smith was working at the Golden Pantry store. In two discussions during the summer of 1995, Smith told Richardson that she wanted to find someone to rob her at work. Smith went on to discuss with Richardson the surveillance cameras in the store and the amount of...