Smith v. State

• Decision Date: 06 February 2017
• Docket Number: S16A1766
• Citation: 796 S.E.2d 671,300 Ga. 532
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 532

796 S.E.2d 671

SMITH

v.The STATE.

S16A1766

Supreme Court of Georgia.

Decided: February 6, 2017

Kenneth W. Sheppard, for Appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Ashleigh D. Headrick, Assistant Attorneys General, for Appellee.

BENHAM, Justice.

Appellant Roderick Smith was convicted of malice murder and other offenses arising out of the shooting death of his girlfriend, Sherita Dunham. Smith appeals his conviction and sentence and the order denying his motion for new trial.¹ We affirm the convictions, but remand for re-sentencing.

1. The record belies Smith's claim that the trial evidence was insufficient to support his conviction. Viewed in a light most favorable to the verdict, the evidence showed Smith shot the victim because he believed she was the one who took $400 in cash and his cell phone from his bedside table while he was sleeping at the rooming house where he was living. Both Smith and other witnesses testified the victim had a substance abuse problem and Smith testified he attempted to keep her from using money he had saved to purchase drugs. Others at the house on the evening in question testified Smith became increasingly angry as the night progressed after he awoke and discovered the missing property and the victim failed to return home. Smith left the house during the night to search for the victim but returned home without her. The shooting occurred when the victim returned to the house the next morning. A witness testified he walked to the door of the house with the victim who did not appear to be injured at that time. He saw Smith answer the door and heard him call the victim a bitch. The witness then saw Smith hit the victim in the head with the hand in which he held a revolver and saw him grab her arm to pull her into the house. The witness testified Smith and the victim were "tussling," and the witness ran away from the house when he heard the sound of a gunshot. After the shooting, Smith dialed 911 and asked for an ambulance. He falsely reported to the operator that the victim had appeared at his door bleeding and that he did not know what had happened. While he was on hold with 911 he took the revolver apart and hid the pieces in the yard. At the scene, officers became suspicious of Smith and read him his rights before transporting him to the homicide office. Smith initially requested an attorney and, although Smith disputed that he ever waived his right to an attorney, the testimony of three officers involved in his interrogation supported the conclusion that Smith later waived his right to an attorney, volunteered to speak, and told the officers where he had hidden the parts of the revolver, which were recovered. In the interview, Smith claimed the shooting was an accident.

From the trial evidence, however, a jury could conclude that the evidence refuted Smith's statements to investigators, as well as his testimony at trial, that the shooting was an accident. At trial, Smith initially testified he was trying to clear the weapon from the victim's reach when it went off. On cross-examination, Smith admitted that at some point the gun was obviously pointed at the victim but continued to claim the gun went off accidentally. He also admitted he had been angry at the victim for taking money the two had agreed to save for their future. Expert testimony established that the gun found in pieces in the yard of the house where the victim was shot was able to be fired for ballistic testing and that the bullet recovered from the victim's body was fired from that .32 caliber revolver. The medical examiner who conducted the autopsy on the victim's body testified the fatal gunshot wound was a contact wound sustained when the barrel of the gun was placed with "quite a bit of force" against the victim's chest. Additionally, witnesses testified that Smith and the victim frequently fought and sometimes the fights would get physical.

"Despite the evidence presented and arguments made by appellant, resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder and not this Court." Philpot v. State , 300 Ga. 154, 155 (1), 794 S.E.2d 140 (2016). Instead, this Court considers whether the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Gill v. State , 295 Ga. 705, 707 (1), 763 S.E.2d 719 (2014). "It is for the trier of fact to determine whether any killing is intentional and malicious from all the facts and circumstances." (Citation and punctuation omitted.) Patterson v. State , 264 Ga. 593 (1), 449 S.E.2d 97 (1994). Here, the physical evidence, along with Smith's own testimony on cross-examination, refutes Smith's testimony that he was trying to clear the weapon from the victim's reach at the time the gun accidentally went off. Having examined the record evidence, summarized above, we conclude the evidence was sufficient to meet the standard set forth in Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Smith also argues the trial court erred by failing to exercise its discretion to grant a new trial pursuant to the general grounds set forth in OCGA §§ 5–5–20 and 5–5–21, because the verdict was contrary to the evidence or was decidedly and strongly against the weight of the evidence, and that the evidence was sufficiently close to warrant the trial court in its discretion to grant a new trial acting as the "thirteenth juror." Smith also asserts that this Court should grant a new trial for those reasons. A motion for new trial on these grounds, however, is not properly addressed to this Court as such a decision is one that is solely within the discretion of the trial court. See Slaton v. State , 296 Ga. 122, 125 (2), 765 S.E.2d 332 (2014). In its order denying Smith's motion for new trial, the trial court recited it had weighed the evidence, including the credibility of witnesses, and found Smith was not entitled to a new trial on the general grounds. The trial court having exercised its discretion as the thirteenth juror, and this Court having found the evidence was sufficient to support the verdict, we find no abuse of discretion in its denying the motion for new trial. See Ridley v. State , 236 Ga. 147, 149 (1), 223 S.E.2d 131 (1976).²

2. We reject Smith's assertion that the trial court erred by failing to grant his motion to strike a particular juror for cause. That juror stated in response to questioning by the prosecutor that she "[had] a problem" with men hitting women, and that eighteen to nineteen years ago she had been the victim of domestic violence that sent her to the hospital. When asked whether her personal experience would make it difficult for her to be a fair and impartial juror, the juror initially stated she did not know how to answer that question. When further asked if she would be able to judge this defendant based solely upon the information learned at trial, she affirmed that she could do that. In response to questioning by Smith's counsel, the juror responded that she would not hold any bias against the defendant based upon her prior personal experiences.

This Court reviews a denial of a request to excuse a prospective juror for cause for abuse of the trial court's discretion. See Akhimie v. State , 297 Ga. 801, 806 (2), 777 S.E.2d 683 (2015). The trial court, unlike an appellate court, is in a position to observe the prospective juror in person and assess the juror's demeanor in addition to verbal responses. Id. ; Burney v. State , 299 Ga. 813, 816 (2), 792 S.E.2d 354 (2016). Where, as here, a prospective juror indicates her opinion is not so fixed that she could not set aside an inclination of bias from past personal experience, no abuse of discretion is shown. Akhimie , supra, 297 Ga. at 806 (2), 777 S.E.2d 683 (where the prospective juror initially disclosed a possible bias against a person charged with the offense involved in the case as a result of his personal experience but, upon further questioning, affirmed he would be able to set aside any bias and would base any finding of guilt on the evidence in question).

3. Smith asserts ineffective assistance of trial counsel in two respects. First, Smith points to trial counsel's decision to waive the previously filed pre-trial motion to suppress Smith's custodial statements to the investigators, as well as counsel's failure to make an in-trial objection to admission of evidence and testimony relating to those statements. During his interrogation Smith disclosed the location of the weapon parts that were recovered from the back yard of the house where the crimes occurred. Smith claims these statements were obtained unconstitutionally since at the time he made them he had not waived his previously asserted right to counsel, though we note that conflicting evidence was presented as to the voluntariness of his statements. He further claims that the weapon introduced at trial was therefore obtained...