SMITH v. STATE, 280 Ga. 340 (2006)

627 S.E.2d 1

SMITH v. THE STATE.

S05A1873.Supreme Court of Georgia.
DECIDED FEBRUARY 13, 2006. RECONSIDERATION DENIED MARCH 27, 2006.

MELTON, Justice.

Appellant Henry Smith was found guilty of felony murder and possession of a firearm during the commission of a felony arising out of the shooting death of Orlando Wright.[1]
Smith appeals from his convictions, and we affirm.

1. The evidence presented at trial authorized the jury to find that Smith resided in an extended-stay motel located in Savannah, Georgia. Smith and Wright were friends, and when Wright went to Smith’s motel room, he attempted to gain entry by climbing through the window. Smith fired multiple gunshots at Wright striking him five times in the torso. Wright died instantly. Smith disposed of the gun used in the shooting as well as a box of unused shells by dropping them into the bushes outside of the rear window of the motel room. After Smith’s arrest, the police located the weapon and also found spent shell casings on the floor. Expert testimony established that the physical evidence of the outward bend in the window frame, coupled with specific tearing in the curtains, demonstrated that the gun had been fired from inside the room. Smith’s hands tested positive for gunshot residue.

Viewed in the light most favorable to the verdict, we find the evidence was sufficient to find Smith guilty of felony murder and possession of a firearm during the commission of a felony beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We find no merit to Smith’s assertion that his felony murder conviction must be reversed because it is inconsistent with his acquittal on the charge of aggravated assault. The inconsistent verdict rule has been abolished in Georgia Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). Here, as in Floyd v. State, 272 Ga. 65, 69
(7) (525 SE2d 683) (2000), “we decline to overrul Milam, and find no merit to this enumeration.” See also Stephens v. State, 279 Ga. 43 (3) (609 SE2d 344) (2005); Paczko v. State, 271 Ga. 627 (2) (523 SE2d 16) (1999).

Page 341

Judgment affirmed. All the Justices concur.

[1] The crimes occurred on March 1, 2003. Smith was indicted by the Chatham County grand jury on May 28, 2003 and tried before a jury on July 13-14, 2004. The jury found Smith guilty of felony murder with aggravated assault as the underlying felony, and one count of possession of a firearm during the commission of a felony. He was found not guilty of malice murder, aggravated assault, and two counts of possession of a firearm during the commission of a felony. Smith was sentenced on July 14, 2004 to life imprisonment for felony murder and a consecutive five-year sentence for the firearm possession charge. Smith’s motion for new trial filed August 10, 2004 and amended February 18, 2005, was denied on February 23, 2005. A notice of appeal was filed on March 21, 2005. The appeal was docketed in this Court on July 26, 2005 and orally argued on January 18, 2006.

DECIDED FEBRUARY 13, 2006 — RECONSIDERATION DENIED MARCH 27, 2006.
Murder. Chatham Superior Court. Before Judge Bass.

Jackson Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, Thurbert E. Baker, Attorney General, Julie A. Adams, Assistant Attorney General, for appellee.