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Smith v. State

Supreme Court of Georgia

December 11, 2017

SMITH
v.
THE STATE.

          HUNSTEIN, JUSTICE.

         Appellant Orlando Smith was convicted of felony murder and related offenses in connection with the May 2010 shooting death of Demetra Smith[1]On appeal, Appellant claims that the evidence was insufficient to support his convictions. Appellant also contends that the trial court erred by: failing to suppress illegally obtained evidence; denying his motion for a mistrial; and allowing inadmissible hearsay pursuant to the necessity exception. Finding no error, we affirm.

         1. Viewed in a light most favorable to the jury's verdict, the evidence adduced at trial established that, three months prior to her death, Demetra Smith married Appellant. The two had a volatile history that included verbal and physical assaults. At trial, the State introduced evidence of numerous incidents between the pair through many of the victim's close friends, and also of the victim's intention to leave Appellant the day before she was murdered.

         On May 24, 2010, at approximately 6:30 p.m., the Smiths were seen at their shared apartment. At 1:40 a.m. on May 25, law enforcement responded to a home security alarm at the Smiths' residence. Appellant was not at the apartment as he had, admittedly, left for his daughter's house by that time. Upon their arrival, the police saw no signs of forced entry into the Smiths' apartment; consequently, they did not enter the residence.

         Appellant and his daughter returned to the apartment later in the morning on May 25. When they entered, they found Demetra unresponsive with a single gunshot wound to the back of her head. During their investigation, law enforcement found two bloody wedding rings on the kitchen sink next to a wash rag that was also covered in blood. Appellant told police that he had been with his daughter since 5:00 p.m. on May 24. At first, Appellant's daughter corroborated this story. However, she eventually admitted that she had lied, telling officers that Appellant arrived at her house around 2:00 a.m. on May 25. Phone records introduced at trial confirmed that Appellant was at or near his apartment between 5:00 p.m. on May 24 and 1:30 a.m. on May 25.

         Upon his arrival at his daughter's home, Appellant took a shower, changed his clothes, and was generally acting nervous. Appellant requested that his daughter tell anyone who asked that he had been with her since 5:00 p.m. the prior evening. According to Appellant's daughter, her father had her throw a bag of clothes out the car window on their way back to the Smiths' residence. She led police to the bag of clothing and identified the clothes inside as the same that her father was wearing when he first arrived at her house. Testing of this clothing revealed both the presence of gun powder and of Demetra's DNA.

         Ballistics testing revealed that Demetra was shot at close range with either a Beretta or a Taurus pistol. Though Demetra owned a .40 caliber Taurus pistol, no weapon was located at the crime scene, and her pistol was never recovered. At trial, the State introduced photographs that were taken six months prior to Demetra's death showing Appellant holding a pistol that matched the description of his wife's gun. The parties stipulated that Appellant was a convicted felon at the time of his wife's murder.

         We conclude that this evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant 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).

         2. Next, Appellant argues that the trial court erred by admitting the bloody wedding rings and the photographs of him holding a gun because, he claims, they were seized pursuant to a deficient search warrant in violation of his Fourth Amendment rights.

         In order for Appellant to have preserved this issue for review, he had to have obtained a ruling from the trial court on his motion to suppress. See Higuera-Hernandez v. State, 289 Ga. 553, 555 (714 S.E.2d 236) (2011) (Citation omitted.) ("Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below."). Instead, the trial court reserved ruling on Appellant's motion at the pre-trial hearing and did not enter an order at a later date. Appellant did not object to the introduction of the wedding rings at trial; although he did object to the introduction of the photographs, he did not object to the admission of the evidence based upon Fourth Amendment grounds. Because Appellant did not obtain a ruling on his pre-trial motion to suppress the evidence and did not object to the admission of the evidence at trial, he has not preserved this issue for appellate review. See McClendon v. State, 299 Ga. 611 (4) (A) (791 S.E.2d 69) (2016).

         3. Prior to trial, the court instructed the parties and witnesses not to reference Appellant's alleged drug dealing. During the State's case-in-chief, the following exchange occurred while lay witness Ali Hassan was on direct examination:

Q: What did [the victim] say - why was she not happy?
A: I don't know what - they have some kind of dispute on the relationship and the work . . . and I heard about him doing, [Appellant] doing the drugs, selling the drugs.

         Appellant objected and moved for a mistrial, arguing that the State improperly introduced evidence of his bad character without the defense first opening the door to allow such evidence. The trial ...


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