Smith v. State

• Decision Date: 08 May 2006
• Docket Number: No. S06A0094.,S06A0094.
• Citation: 280 Ga. 490,629 S.E.2d 816
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 490

629 S.E.2d 816

SMITH v. The STATE.

No. S06A0094.

Supreme Court of Georgia.

May 8, 2006.

Julianne H. Lynn, Newnan, Gerald P. Word, Word & Taylor, P.C., Carrollton, for appellant.

Raymond C. Mayer, Asst. Dist. Atty., Andrea Anglin Newton, Asst. Dist. Atty., Peter J. Skandalakis, Dist. Atty., Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., for appellee.

HINES, Justice.

Joseph Corey Smith appeals his convictions for felony murder while in the commission of aggravated assault and possession of a firearm during the commission of murder in connection with the fatal shooting of Frank Matthew Keahey. Smith challenges the sufficiency of the evidence, the admission of certain photographs of the victim, and the trial court's instruction to the jury. For the reasons which follow, we find these challenges to be without merit, and we affirm; however, Smith also asserts that his trial counsel rendered ineffective assistance, and the circumstances of this case necessitate that we remand the case to the trial court for a hearing on his claim of ineffectiveness of trial counsel. ¹ The evidence construed in favor of the verdicts shows that in the early morning hours of June 13, 2004, Smith was attending a party at someone's home. Keahey was also there along with his girlfriend Heather McKnight, Jessica Pounds, and Ashley Patterson. Smith was there when Keahey and the women arrived, and he was carrying a revolver in his belt. Smith was drinking beer and "rapping." Smith showed the pistol to several people including Keahey. At one point, Smith opened the chamber of the pistol, the bullets fell out, and he reloaded the weapon. Smith kept saying that he wanted to fire the pistol, and it was suggested that he could go into the woods and do so, but Smith replied that he did not want to shoot at "something"; he stated, "I want to know what it feels like to shoot somebody." Moments later, Smith put the pistol to Keahey's chest and fired the weapon. Smith viewed Keahey's body and said, "there is a hole." Keahey died from the single contact gunshot wound to his chest and through his heart fired from a Rossi .357 revolver.

Smith was arrested at the scene. He gave a videotaped statement to police. Smith did not take the stand at trial.

1. Smith contends that the trial court should have granted him directed verdicts on the charges of Keahey's felony murder and the underlying aggravated assault because there was no evidence of his intent to injure Keahey, which is required in order to find an assault; rather the evidence was that he and Keahey were not arguing or fighting but getting along with each other.

First, felony murder does not require proof of a criminal intent to murder. Flores v. State, 277 Ga. 780, 783(3), 596 S.E.2d 114 (2004). As to the aggravated assault, Smith was charged with assaulting Keahey with a deadly weapon, and the intent to injure is not an element of the charged offense. Easley v. State, 266 Ga.App. 902, 905(4), 598 S.E.2d 554 (2004). The crime of aggravated assault, as alleged, is established by the reasonable apprehension of harm by the victim of an assault by a firearm rather than the assailant's intent to injure. Id. All that is required is that the assailant intend to commit the act which in fact places another in reasonable apprehension of injury, not a specific intent to cause such apprehension. Id.

"The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction." Shelton v. State, 279 Ga. 161, 162(3), 611 S.E.2d 11 (2005). There was sufficient evidence to authorize the jury to find Smith guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Smith next contends that the trial court erred in admitting four photographs, State's Exhibits 6,7,8, and 9, which depicted Keahey's body at the scene and the inflicted gunshot wounds, inasmuch as they were cumulative of other photographs admitted into evidence, and therefore, served merely to inflame the jury. However, if pre-autopsy photographs are relevant and material to any issue in the case, they are admissible even if they are duplicative and may inflame the jury. Thomas v. State, 259 Ga. 202, 378 S.E.2d 686 (1989). Photographs showing the extent and nature of the victim's wounds are material and relevant. Moody v. State, 277 Ga. 676, 680(5), 594 S.E.2d 350 (2004). This is not altered by the fact that the cause of death may not be in dispute. Leggett v. State, 256 Ga. 274(3), 347 S.E.2d 580 (1986). The trial court did not abuse its discretion in admitting these photographs. Joyner v. State, 280 Ga. 37, 40(4), 622 S.E.2d 319 (2005).

3. Smith also contends that the trial court's charge to the jury on involuntary manslaughter was "erroneous and burden shifting" because it informed the jury that if it convicted him of involuntary manslaughter, he would be guilty of only a misdemeanor.² But that is hardly the case.

The trial court's charge must be considered in the context of the court's instruction as a whole. Ricketts v. State, 276 Ga. 466, 473(6), 579 S.E.2d 205 (2003). While it can be argued that the trial court's statement, "[i]t would be a misdemeanor," initially could have been construed as referring to the crime of involuntary manslaughter rather than the offense of pointing a pistol at another, the court immediately thereafter told the jury that pointing a pistol at another would be a misdemeanor. Also, in its recharge, the court plainly stated that involuntary manslaughter is a felony in Georgia.³ Moreover, merely referring to a lesser included offense as a misdemeanor and the charged offense as a felony is not error so long as there is no information given...