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SMITH v. STATE

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Supreme Court of Georgia.

SMITH v. The STATE.

No. S15A1703.

Decided: January 19, 2016

Erin Elizabeth Donohue–Koehler, Office of the Public Defender, Atlanta, for Appellant. Patricia B. Attaway Burton, Senior A.A.G, Paula Khristian Smith, Senior A.A.G., Samuel S. Olens, A.G., Jason Matthew Rea, Department of Law, Arthur C. Walton, A.D.A., Paige Reese Whitaker, Paul L. Howard Jr., D.A., Atlanta, for Appellee.

Tariq Smith was tried by a Fulton County jury and convicted of murder and several other crimes in connection with the fatal shooting of Emmanuel Opoku–Afari. Smith appeals, contending that the trial court erred when it removed one of the jurors after the evidence was closed. We find no merit in that contention, but we note that the trial court erred when it failed to sentence Smith for attempted armed robbery and the unlawful possession of a firearm by a convicted felon. Accordingly, we affirm in part, vacate in part, and remand for resentencing.1

1. Viewed in the light most favorable to the verdict, the evidence shows that, on October 12, 2010, Smith sold a television to Opoku–Afari. During the transaction, Smith noticed that Opoku–Afari seemed to have a lot of money, and he devised a plan to rob him. Later that day, Smith discussed his plan with Anthony Norris and Tefflon Rhoden, who agreed to assist Smith with the robbery. Traveling together in Norris's truck, the three men located Opoku–Afari, and they followed him to his apartment in South Fulton County. But when the three men approached Opoku–Afari with guns, Rhoden apparently became afraid that the victim might “try to do something,” and he shot the victim in the head before the robbery could take place. The men fled the scene, but Smith—who had prior convictions for aggravated assault and drug felonies—was ultimately apprehended by police.

Smith does not dispute that the evidence is sufficient to sustain his convictions. Nevertheless, we have independently reviewed the record with an eye toward the legal sufficiency of the evidence. We conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Smith was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Powell v. State, 291 Ga. 743, 744(1), 733 S.E.2d 294 (2012) (“[a] person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it”) (citations and punctuation omitted). See also OCGA § 16–2–20(b) (defining parties to a crime).

2. Smith was found guilty of three counts of felony murder, and the trial court properly sentenced him for only one of those counts. The trial court purported to merge the other two felony murders—which were predicated on attempted armed robbery and the unlawful possession of a firearm by a convicted felon—into the felony murder for which Smith was sentenced. But as noted in footnote 1, supra, those felony murders were vacated by operation of law. And because the trial court failed to recognize that those felony murder counts were vacated, it erroneously merged the underlying crimes for those felony murder counts (attempted armed robbery and the unlawful possession of a firearm by a convicted felon) into the vacated felony murders. As a result, the trial court failed to sentence Smith for crimes of which he was found guilty and properly should have been convicted.

This sentencing error has not been raised by the State, and this Court has no duty “to scour the record searching for merger issues.” Nazario v. State, 293 Ga. 480, 488(2)(d), 746 S.E.2d 109 (2013). But if we notice a merger issue in a direct appeal, as we do here, we may resolve that issue. Id. at 486(2)(b), 746 S.E.2d 109. Accordingly, we vacate that portion of the trial court's sentencing order in which it merged attempted armed robbery and the unlawful possession of a firearm by a convicted felon into the vacated felony murders, and we remand for sentencing on those counts. See Hulett v. State, 296 Ga. 49, 52–56(2), 766 S.E.2d 1 (2014).

3. Smith's sole claim of error concerns the removal of a juror. The juror in question was an insurance agent, and the controversy that led to his removal began during the voir dire of prospective jurors, when Smith's lawyer asked the juror if they knew each other. When the juror said that he did not recognize the lawyer, the lawyer informed him that the lawyer had purchased insurance policies through the juror's insurance agency. The juror thanked the lawyer, who then asked him if the business relationship would affect his ability to “be fair to both sides.” The juror responded that it would not, and he ultimately was selected to serve on the jury.

On the fourth day of trial, and after the State's closing arguments, the court informed the parties that the juror at issue had twice approached the courtroom deputy about the business relationship between his insurance agency and Smith's lawyer. According to the deputy, the juror had developed “a concern about being able to vote against a customer of his agency,” and he told the deputy that, “while he didn't know [the lawyer,] people in his office did.” The parties all agreed that the judge should individually question the juror. When asked about his concerns, the juror responded that he “didn't think it would be fair for me to be on this trial because of the conflict.” The juror told the court that he had not discussed the matter with anyone in his office, but he admitted that he had looked up Smith's lawyer in his company's files to “verify” that the lawyer was a customer. The court informed the juror that such conduct violated its instruction not to do any independent research about the parties or their lawyers.

The judge then asked the juror if he could be fair and impartial, and the juror responded that he would “do [his] very best” and that he believed he could. The judge repeated the question, and the juror said he would “try to do [his] very best to be fair and impartial” but added that he was surprised that “the conflict situation came up.” The judge asked the juror if he could put the business relationship out of his mind, and the juror responded that he would “do the very best [he could].” And when the judge asked the juror again if he thought he could, in fact, put the relationship out of his mind, the juror responded affirmatively.

The trial court discussed the matter with the parties, and Smith and Rhoden urged the court not to remove the juror. But the court explained that it did not want the juror to serve “if he cannot follow the court's instructions,” and that it had “additional concerns about his ability to be fair and impartial in general.” The court then removed the juror from the panel and replaced him with the first alternate.

Smith acknowledges that a trial court has broad discretion to determine whether it is appropriate to remove a juror. See Gibson v. State, 290 Ga. 6, 10(5), 717 S.E.2d 447 (2011); OCGA § 15–12–172. Here, the trial court had two sound reasons for its decision to remove the juror at issue. First, as Smith admits, the juror violated the trial court's instruction not to conduct independent research on the parties,2 and that violation alone provided a sufficient basis for the court to remove the juror. See Butler v. State, 290 Ga. 412, 418(5), 721 S.E.2d 876 (2012); Krause v. State, 286 Ga. 745, 748(3), 691 S.E.2d 211 (2010).

In addition, the trial court had another basis for removing the juror, namely, its concern about the impartiality of the juror. The fact that the juror twice approached the deputy with concerns about his business relationship with Smith's lawyer would support a finding that the juror was not, in fact, able to remain impartial. Moreover, the juror's numerous equivocal responses that he would “try” or would “do [his] very best” to put the relationship with Smith's lawyer out of his mind also supported the trial court's conclusion about the juror's ability to be impartial. See Butler, 290 Ga. at 418(5), 721 S.E.2d 876 (“fact that the juror eventually stated that he could be impartial does not require the trial court to ignore the numerous times he equivocated”) (citation and punctuation omitted). See also Sears v. State, 292 Ga. 64, 66(2), 734 S.E.2d 345 (2012) (“[a] trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks”) (citation and punctuation omitted).

The trial court had two sound reasons for removing the juror at issue, either of which would have been sufficient to support its decision. As a result, we reject Smith's claim that the trial court abused its discretion.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

BLACKWELL, Justice.

All the Justices concur.

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