Smith v. State

737 S.E.2d 677, 292 Ga. 316, 2013 Fulton County D. Rep. 109, 2013 WL 216001, 2013 Ga. LEXIS 64
CourtSupreme Court of Georgia
DecidedJanuary 22, 2013
DocketS12A1716
StatusPublished
Cited by34 cases

This text of 737 S.E.2d 677 (Smith v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 737 S.E.2d 677, 292 Ga. 316, 2013 Fulton County D. Rep. 109, 2013 WL 216001, 2013 Ga. LEXIS 64 (Ga. 2013).

Opinion

Benham, Justice.

Appellant Robert Merrill Smith was convicted of the malice murder of his wife, Jennifer Smith, and possession of a firearm during the commission of a felony.1 On appeal Smith questions the sufficiency of the evidence, the content of the jury instructions, the trial court’s refusal to admit evidence of the victim’s purported acts of violence against third parties, and trial counsel’s alleged ineffective assistance of counsel.

1. The State presented evidence that Jennifer Smith died in her Gwinnett County bedroom as a result of gunshot wounds to her neck and left chest. Police recovered from a stereo cabinet at the crime scene a .45-caliber handgun with blood on it. A firearms expert identified the gun as the instrument that fired the bullet recovered from the scene and that discharged the two .45-caliber shell casings found in the victim’s bedroom. The parties stipulated that the blood on the gun and on clothing appellant was wearing at the time of his arrest was that of the victim. Police were notified of Mrs. Smith’s death by a telephone call from a neighbor of the Smiths who reported that appellant, with blood on his feet, was in her home and had informed her that he had shot his wife with a gun that was on a table in the Smith home. A man identified by the neighbor as “Bobby [317]*317Smith” told the 911 operator that he had “shot her twice” and requested that authorities “tj]ust come get her.” Also played for the jury was an audiovisual recording of appellant made after he was arrested and placed in an interview room by himself, in which recording appellant expressed his anger with his wife, stated he “did it,” and described himself as a killer.2

Appellant presented the testimony of a clinical and forensic psychologist that appellant acted under a delusional compulsion that overcame his will, causing him to fire the gun to defend himself from the victim, whom he mistakenly believed was his abusive stepfather. In rebuttal, the State presented the testimony of a clinical and forensic psychologist who opined that appellant did not suffer a delusional compulsion and was criminally responsible for his behavior.

(a) The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of malice murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Appellant also asks this Court to grant him a new trial based on the general grounds set forth in OCGA §§ 5-5-20 and 5-5-21. We are without authority to do so. A motion for new trial based on OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Witt v. State, 157 Ga. App. 564 (2) (278 SE2d 145) (1981). Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials. Willis v. State, 263 Ga. 597 (1) (436 SE2d 204) (1993).

2. Appellant filed pretrial notice of an affirmative defense of justification and of his intention to present evidence of acts of violence committed by the victim against third parties. See Uniform Superior Court Rule (“USCR”) 31.6. Citing Chandler v. State, 261 Ga. 402 (3) (405 SE2d 669) (1991), appellant complains of the trial court’s refusal to allow appellant to present evidence of the victim’s acts of violence toward third parties.

An exception to the general rule that a victim’s violent character is rarely relevant in a criminal proceeding exists when a defendant claims his actions were justified and offers evidence that the victim [318]*318was the aggressor. Johnson v. State, 270 Ga. 234 (3) (507 SE2d 737) (1998). “To make a prima facie showing of justification so as to allow evidence of violent acts of the victim against third parties, ‘the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself.’ [Cit.]” Ludy v. State, 283 Ga. 322 (3) (658 SE2d 745) (2008). See also USCR 31.6. “[T]he key showing must be that the victim was the aggressor in the fatal encounter.” State v. Hodges, 291 Ga. 413, 418 (728 SE2d 582) (2012). The trial court’s decision to exclude evidence of a victim’s acts of violence against third persons is examined by the appellate court for abuse of discretion. Murphy v. State, 279 Ga. 410 (2) (614 SE2d 53) (2005).

Appellant did not present evidence that his wife was the aggressor in the incident that resulted in her death. Rather, appellant proffered that he awoke from sleeping on a couch and went into the bedroom occupied by his wife where he shot her while in his delusional state of belief that his wife was his abusive stepfather who had assaulted him when he was a child. The trial court ruled that appellant’s proffer of evidence did not establish the prima facie case that was a prerequisite to the admission of the incidents involving the victim and third parties. We agree that the trial court did not abuse its discretion in excluding evidence of the victim’s violent acts against third parties because appellant did not establish a necessary prerequisite to their admission — • that it was the victim who was the aggressor in the encounter which resulted in her death.

3. Appellant contends the trial court committed error when it failed to instruct the jury that the State had the burden of proving by a preponderance of the evidence that an incriminating statement made by appellant was voluntary.3 At the close of the evidence, the trial court instructed the jury that before it could consider appellant’s post-arrest statement, the jury had to decide whether the statement “was voluntary, freely and willingly given and without coercion, duress, threats, use of violence, fear of injury, or any suggestions or promises of leniency or reward . . . the product of a free will and not under compulsion or any necessity imposed by others.” The trial court did not instruct the jury that the State had the burden of proving by a preponderance of the evidence that appellant’s incriminating statements were freely and willingly given, and it is the lack of that instruction on which appellant now focuses.

[319]*319Trial counsel did not preserve an objection to the content of the jury instructions because he did not voice an objection to the charge as given. Guajardo v. State, 290 Ga. 172 (3) (718 SE2d 292) (2012). Nevertheless, under our construction of OCGA § 17-8-58, which is applicable to trials taking place after July 1,2007, we review for plain error an alleged error in jury instructions properly enumerated and argued on appeal that was not raised by trial counsel before the jury retired to deliberate. Id. at 175 (4). The “plain error” test adopted by this Court in State v. Kelly, 290 Ga.

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Cite This Page — Counsel Stack

Bluebook (online)
737 S.E.2d 677, 292 Ga. 316, 2013 Fulton County D. Rep. 109, 2013 WL 216001, 2013 Ga. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-ga-2013.