Christopher Rayshun Smith was tried and convicted of murder
and related offenses in connection with the shooting death of
Kevin Daniel and aggravated assault of Kamenika
Whatley. Smith appeals, claiming three instances of
trial court error. Though we find no merit in any of
Smith's trial phase enumerations, we do find error with
regard to his sentences and therefore we must vacate and
remand for re-sentencing.
in the light most favorable to the jury's verdict, the
evidence adduced at trial established as follows. Smith, a
drug dealer, devised a plan with co-indictees Antonio Jones
and Jamarrcus Sullivan to rob Kevin Daniel, a competing
dealer, of his drugs and money. On June 1, 2013, Smith
dropped Jones and Sullivan off near Daniel's home in
Rome, Georgia. As the men approached the house, with
Smith's shotgun in tow, Jones recognized an SUV parked in
the driveway as belonging to Kamenika Whatley. Scared that
she would be able to identify him, the men decided that Jones
would open the front door and Sullivan would "handle
opened the door. Sullivan went inside, aimed the shotgun at
Daniel and Whatley and demanded drugs and money. Whatley
complied but Daniel ignored the command and charged toward
the intruders. Jones fled the house and hid behind
Whatley's car in the driveway as Daniel and Sullivan
fought over the shotgun. Shortly thereafter, witnesses heard
gun shots and the sound of glass breaking. Daniel stumbled
outside holding the shotgun. He then fell off of his front
porch and landed in the yard. Sullivan exited the house,
stood over Daniel and shot him with a handgun. Sullivan then
grabbed the shotgun, as well as Whatley's and
Daniel's cell phones, and fled the scene with Jones.
Smith picked up Sullivan and Jones in his red Chevy Malibu,
at which time Sullivan explained that he had to shoot Daniel
because Jones "messed everything up."
law enforcement arrived at Daniel's home, they found him
face down in the front yard and somewhat responsive. He was
taken to the hospital and later died from multiple gunshot
wounds. Law enforcement found a .40 caliber shell casing and
$3500 inside the home; they located drugs in the front yard.
Cell phone records introduced at trial showed numerous phone
calls made between Sullivan and Smith on the night of the
murder. Daniel's blood was found inside Smith's red
they were incarcerated, Smith wrote letters to Jones
regarding the case, including requests that Jones deny
Smith's involvement in the crimes. The State also
introduced jail phone calls made by Smith in which he
discussed the crimes, witnesses, and evidence.
Though not enumerated by Smith, we find that the evidence was
sufficient to enable a rational trier of fact to conclude
beyond a reasonable doubt that Smith was guilty of the crimes
for which he was convicted. Jackson v. Virginia, 443
U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Smith claims that the trial court erred in admitting into
evidence two recorded jail calls and handwritten letters.
"We review the admission of evidence for an abuse of
discretion." Moore v. State, 295 Ga. 709, 712
(2) (763 S.E.2d 670) (2014).
Jail Phone Calls
first contends that the trial court erred by admitting
incriminating two recorded jail calls - one between Smith and
his brother and the other between Smith and his wife -
alleging that the State failed to lay the proper foundation
for the phone calls to be admitted. Specifically, Smith
argues that the State failed to properly identify the
speakers, the proper operation of the recording devices, and
whether any changes or deletions were made to the recordings
as required by Davis v. State, 279 Ga. 786 (621
S.E.2d 446) (2005) and its progeny. We disagree.
to Smith's assertions, because he was tried after January
1, 2013, OCGA § 24-9-923 (c) of the new evidence code,
not Davis, controls. See Jones v. State,
299 Ga. 40 (4) (785 S.E.2d 886) (2016). OCGA § 24-9-923
(c) allows the admission of computer controlled audio
recordings, such as jail phone calls, "when the court
determines, based on competent evidence presented to the
court, that such items tend to show reliably the fact or
facts for which the items are offered . . . ."
the State called an investigator from the District
Attorney's Office to authenticate the two jail
recordings. The investigator testified that she was able to
access the jail's recorded phone calls through a computer
program. The investigator listened to Smith's recorded
calls and explained that she was able to identify the parties
on both phone calls because they identified themselves in the
recordings on numerous occasions. Moreover, both recordings
contained automated information from the Floyd County Jail,
including the number called, the inmate number, the date and
time the call was placed, and a male voice identifying the
caller as "Lil' Chris, " Smith's nickname.
Finally, during the calls, the parties discussed information
regarding the case, such as potential witnesses, the ongoing
investigation by law enforcement, and the role of Smith's
co-indictees in the crimes. All of this evidence tends to
show that the automated recordings were, in fact, recordings
of the phone calls Smith made from jail to both his brother
and wife. See Jones, 299 Ga. at 45. Consequently,
the trial court did not abuse its discretion in admitting
these two phone calls at trial.
also claims that the trial court erred by admitting the
letters adduced by the State at trial as authored by him
because the State, he claims, failed to lay the proper
foundation for their admission. OCGA § 24-9-901 requires
"authentication or identification as a condition
precedent to admissibility" which "shall be
satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims."
Id. Authentication may be achieved through many
means, including, but not limited to: "[t]estimony of a
witness with knowledge that a matter is what it is claimed to
be, " id. at (b) (1); "[n]onexpert opinion as to
the genuineness of handwriting, based upon familiarity not
acquired for purposes of the litigation, " Id.
at (b) (2); and, "[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics,
taken in conjunction with circumstances, " Id.
at (b) (4). The party proffering the evidence must present
sufficient evidence "'to make out a prima facie case
that the proffered evidence is what it purports to be.'
Once that prima facie case is established, the evidence ...