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Smith v. State

Supreme Court of Georgia

June 1, 2015

SMITH
v.
THE STATE

Page 210

Murder. Newton Superior Court. Before Judge Ott.

Judgment affirmed.

Green B. Moore III, Kelly L. McLain, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Anne M. Kurtz, 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, Assistant Attorney General, for appellee.

MELTON, Justice. All the Justices concur.

OPINION

Page 211

Melton, Justice.

Following a jury trial, Ricky Smith was found guilty of malice murder, aggravated assault, and various other offenses in connection with the shooting of Steven Smith and the shooting death of Tajuana Stroud.[1] On appeal Smith contends, among other things, that the [297 Ga. 215] trial court erred by failing to grant him a timely trial and that his trial counsel was ineffective. We affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence reveals that, on November 8, 2009, Smith, a convicted felon, got into an argument with his brother, Steven, at the house that Smith lived in with his mother. Steven then went to the home of Smith's wife, Stroud, informing her that Smith was having an affair. Stroud drove from her home with her son, Ricky Smith, Jr., to the home where Smith was staying to talk with him about the accusation that he was having an affair. Stroud began speaking with Smith outside of the home, and Steven returned to the mother's home at some point during the course of that conversation. Steven yelled out to his brother that he should tell his wife the truth about the affair. Smith then pulled out a gun and shot Steven in the shoulder, but Steven was able to flee the scene and survive. Stroud attempted to run away, but was unable to get away from Smith before he turned the gun on her. Stroud asked Smith if he was going to kill her in front of their son, and Smith pulled the trigger, but the gun did not fire. Smith then adjusted the gun and shot Stroud five times, killing her.

This evidence was sufficient to enable a rational trier of fact to find Smith guilty of all of the crimes of 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. Smith argues that the trial court erred by holding a conversation in front of the jury about the admissibility of evidence of alleged prior difficulties between Smith and Stroud. However, Smith never objected to any such conversation taking place before the jury, so he has waived review of this issue on appeal. See Smith v. State, 284 Ga. 304 (4) (667 S.E.2d 65) (2008).

3. Smith contends that the trial court erred by (1) failing to give a proper limiting instruction to the jury that included the pattern charge on prior difficulties before the testimony of Ricky Smith, Jr., and (2) failing to give a proper limiting instruction to the jury on the [297 Ga. 216] necessity exception to the rule against hearsay. However, Smith's first contention is belied by the record, as the record reveals that the trial court did in fact read the pattern charge on prior difficulties to the jury. With respect to Smith's second contention regarding the instruction on necessity, the record reveals that Smith never objected to this instruction or requested that the trial court give a different limiting instruction. Accordingly, any challenge to the instruction given could only be reviewed for plain error. See, e.g., Holloman v. State, 293 Ga. 151 (2) (744 S.E.2d 59) (2013). In this connection, the instruction given by the trial court adequately ...


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