Thompson v. State
| Decision Date | 15 March 1993 |
| Docket Number | No. S92A1548,S92A1548 |
| Citation | 263 Ga. 23,426 S.E.2d 895 |
| Parties | THOMPSON v. The STATE. |
| Court | Georgia Supreme Court |
Michael G. Schiavone, Charles C. Grile, Mark E. Smith, Jackson & Schiavone, Savannah, for Thompson.
Spencer Lawton, Jr. Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., Atlanta, for State.
David T. Lock, Asst. Dist. Atty., Savannah, Rachelle L. Strausner, Staff Atty., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta.
Solomon Thompson was found guilty of the felony murder, rape and burglary of Maria Kelly, and possession of a knife during the commission of a felony. He was sentenced to life imprisonment for felony murder, life imprisonment for rape, and five years for the possession charge. Thompson appeals. We affirm in part and reverse in part. 1
On July 26, 1987, police found the body of Maria Kelly in her home. On that same day while officers were still inspecting the crime scene and before information about the murder had been released to the public, a police dispatcher received a call on the 911 line about the homicide; the caller told the dispatcher that he had heard two brothers, the Priesters, bragging about having committed the murder. When the Priester brothers were later played the tape of the call, they identified the voice on the tape as that of the defendant. A few days later defendant was interviewed by police officers. After an initial denial, defendant admitted making the 911 telephone call. He also told police that he worked for a man who lived next door to the victim. When asked how he had known details about the homicide at the time of the call, the defendant gave several different stories.
Police also interviewed the defendant's common-law wife, who testified that the defendant had left the house on the night of the murder sometime around midnight and that when the defendant returned about 1:40 a.m., two buttons were missing from his shirt, which was also torn. When asked about his activities on the night of the murder, the defendant said that he had been at home throughout the night. However, when confronted with the testimony of his common-law wife, he told the police that he had gone to the Krystal in Garden City and then, after learning that police could not verify that story, he stated that he had gone to the Krystal on DeRenne Street. The defendant also said that his torn shirt and missing buttons were the result of an altercation with a Krystal employee about his order; this story could not be confirmed by employees at either the Garden City or DeRenne restaurants. The remaining buttons on his shirt matched a button found on the floor at the crime scene.
At the time of the murder investigation, police were also investigating a rape which had occurred the night before the murder. The defendant was subsequently arrested for that rape; fingerprints found at the scene of the rape matched those of the defendant, and the defendant admitted having intercourse with the victim. Facts about this rape were subsequently admitted in this case as evidence of a similar transaction.
1. After reviewing the evidence in a light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The defendant contends that the trial court erred in failing to merge both the rape and the burglary convictions into the felony murder conviction. The jury acquitted the defendant of malice murder and found him guilty of felony murder, rape, burglary and possession of a knife during the commission of a crime. When asked by the trial judge to clarify the basis for the finding of felony murder, the jury replied that they found both the burglary and the rape to be the underlying felonies of the felony murder. The trial judge, however, merged only the burglary conviction into the felony murder conviction and sentenced the defendant separately for his rape conviction. The defendant argues that the trial judge should have followed the findings of the jury and merged both the burglary and the rape convictions into the felony murder conviction. We disagree and hold that the rape conviction should merge rather than the burglary conviction.
Only one felony is required to trigger the felony murder provision of OCGA § 16-5-1(c). Collier v. State, 244 Ga. 553, 564, 261 S.E.2d 364 (1979). We take this opportunity to make explicit that which we implied in Collier: only one felony need be merged with the felony murder conviction. Thus, contrary to the defendant's argument, and...
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