MALCOLM v. STATE

CARLEY, Justice.

Based upon his fatal shooting of one victim, appellant was indicted for five offenses: malice murder; felony murder while in the commission of an aggravated assault; felony murder while, as a convicted felon, in the possession of a firearm; aggravated assault; and, possession of a firearm by a convicted felon. He was tried before a jury and found guilty on all five counts. The trial court imposed three life sentences on the murder counts and a sentence to a term of years on each of the remaining two counts. Appellant's motion for new trial was denied and he appeals.

The crimes occurred on August 28, 1990. Appellant was indicted on March 10, 1992. The verdict was returned on May 6, 1992. Appellant's motion for new trial was denied on February 11, 1993 and his notice of appeal was filed on March 8, 1993. The instant appeal was docketed on April 5, 1993 and was submitted for decision on May 28, 1993.

1. Appellant enumerates the general grounds.

Sufficient evidence of appellant's guilt was adduced through the testimony of an eyewitness. Contrary to appellant's contention, no corroboration of this testimony was necessary, since the eyewitness was not an accomplice. Collins v. State, 251 Ga. 521, 523 (1) ( 307 S.E.2d 496) (1983); Strong v. State, 232 Ga. 294, 300-301 ( 206 S.E.2d 461) (1974). Moreover, corroboration did exist, in the form of another witness' testimony regarding appellant's flight from the scene immediately following the shooting. Brown v. State, 199 Ga. App. 18, 23 (4) (d) ( 404 S.E.2d 154) (1991). The credibility of the testimony of the State's witnesses, including that of the eyewitness, was for the jury. OCGA § 24-9-80. A rational trier of fact could have found proof of appellant's guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979).

2. The trial court's admission of evidence of appellant's commission of another homicide is enumerated as error.

Although the procedural requirements of Williams v. State, 261 Ga. 640 ( 409 S.E.2d 649) (1991) were satisfied, appellant urges that the relevance of the evidence was not outweighed by its prejudicial effect. See Campbell v. State, 234 Ga. 130, 131-132 ( 214 S.E.2d 656) (1975). However, both homicides had occurred only 30 days apart and each had been committed in the same general vicinity where appellant was engaged in the illegal sale of drugs. The victim in the instant case was shot because he would not buy drugs from appellant, while the victim in the other homicide was shot because he was believed to have taken drugs from one of appellant's sellers. The nature of the two offenses and the circumstances surrounding their commission were sufficiently similar, and indeed interconnected, such that the relevance of the other homicide to show appellant's scheme, motive, bent of mind and identity in the present case outweighed any prejudice. See Campbell v. State, supra at 132; Childs v. State, 202 Ga. App. 488, 489 (1) ( 414 S.E.2d 714) (1992); Freese v. State, 196 Ga. App. 761, 763 (3) ( 396 S.E.2d 922) (1990); Roney v. State, 192 Ga. App. 760, 763 (2) ( 386 S.E.2d 412) (1989). "[T]he evidence was not overly prejudicial here, as the jury was [given detailed limiting instructions before the evidence was admitted and at the close of the case]." Tuzman v. State, 145 Ga. App. 761, 763 (1) (A) ( 244 S.E.2d 882) (1978). See also Childs v. State, supra at 489 (1).

3. The trial court's refusal to allow certain laboratory reports into evidence is enumerated as error.

Appellant laid a proper foundation for admission of the laboratory records under the business records exception to the hearsay rule. However, those portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not before the court are not admissible under that exception to the hearsay rule. Baker v. State, 251 Ga. 464, 465 (2) ( 306 S.E.2d 917) (1983); Hurt v. State, 239 Ga. 665, 673 (10) ( 238 S.E.2d 542) (1977). Accordingly, if the laboratory reports at issue in the instant case contained

the opinions or conclusions of ... third part[ies] not before the court, those portions of the report are inadmissible hearsay until a proper foundation has been laid, "i.e., [each] person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based." [Cits.]

Dept. of Human Resources v. Corbin, 202 Ga. App. 10 ( 413 S.E.2d 484) (1991). See also Spivey v. State, 184 Ga. App. 118 ( 361 S.E.2d 9) (1987).

Appellant does not contend that the excluded laboratory reports contained only admissible test results and not opinions and conclusions for which no foundation had been laid. Compare Oldham v. State, 205 Ga. App. 268, 270 (1) ( 422 S.E.2d 38) (1992). The excluded laboratory reports are not included in the record. Even if it were not otherwise apparent from the transcript that they did contain opinions and conclusions for which no foundation had been laid, their contents are certainly not set forth in sufficient detail to show that they contained only admissible test results.

"The burden is on the appellant to show error by the record, and when a portion of the evidence ... bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cits.]" [Cit.]

Dept. of Human Resources v. Corbin, supra at 11.

4. Appellant urges that the trial court erred in imposing a life sentence on all three murder counts.

A single homicide can result from facts sufficient to support both malice and felony murder. Malice is not an element in a trial for felony murder but the presence of malice does not bar a felony murder conviction. Likewise, the existence of a felony is not an element in a trial for malice murder but its presence is no bar to a malice murder conviction. When the elements of malice and an underlying felony both exist in a murder case, the law does not preclude verdicts of guilty of both malice and felony murder. However, where there is a single victim, the defendant may be sentenced on either but not both. [Cits.]

Smith v. State, 258 Ga. 181, 183 (2) ( 366 S.E.2d 763) (1988).

As discussed in Division 1, the evidence was sufficient to authorize a finding of appellant's guilt for malice murder. Compare Hendrick v. State, 257 Ga. 514, 515 (3) ( 361 S.E.2d 169) (1987). It follows that the trial court erred in failing to sentence appellant only on the malice murder count and that the separate sentences on the two alternative felony murder counts must be vacated. "The conviction[s] of felony murder [were] simply surplusage, which [should] properly [have been] disposed of by the trial [court's] sentence of only one life sentence for the [three] murder counts." Biddy v. State, 253 Ga. 289, 292 (2) ( 319 S.E.2d 842) (1984). See also Wade v. State, 258 Ga. 324, 325 (2) ( 368 S.E.2d 482) (1988).

5. Appellant further urges that the trial court erred in imposing separate sentences on the aggravated assault and possession of a firearm by a convicted felon counts.

Those two offenses were the underlying felonies in the two felony murder counts. Since those two offenses would otherwise merge, as a matter of law, into the felony murder counts and appellant's felony murder convictions must be vacated for the reasons discussed in Div. 4, he contends that the trial court erred in imposing separate sentences for those two offenses. There is authority for appellant's contention. In Moss v. State, 262 Ga. 702 ( 425 S.E.2d 289) (1993), the defendant was found guilty of malice murder, felony murder and aggravated assault of one victim and given separate sentences. We held:

The aggravated assault charge, as the underlying charge of felony murder, merges with the felony murder charge ([cit.]), and the felony murder charge stands vacated by operation of OCGA § 16-1-7. [Cit.] Accordingly, we vacate the convictions and sentences for felony murder and for the aggravated assault of the murder victim. [Cit.]

(Emphasis supplied.) Moss v. State, supra at 703 (3). Thus, under Moss, the merger, as a matter of law, of the underlying felony into a vacated felony murder conviction forecloses any determination as to whether a separate sentence on the underlying felony may nevertheless be authorized for lack of merger, as a matter of fact, into the extant malice murder conviction.

Moss is in seeming conflict with the holdings in Hutchins v. State, 261 Ga. 366, 367 (3) ( 404 S.E.2d 548) (1991) and Renner v. State, 260 Ga. 515, 519 (6) ( 397 S.E.2d 683) (1990). If a defendant has been found guilty only of felony murder, the underlying felony would certainly be deemed to have merged, as a matter of law, into the felony murder and a separate sentence for that underlying felony would not be authorized. See Johnson v. State, 254 Ga. 591, 595 (4) ( 331 S.E.2d 578) (1985) (cited in Moss, supra at 703 (3)). If, however, a valid guilty verdict is also returned on an alternative count of malice murder, it is proper for the trial court to treat the felony murder count as merely surplusage and then to proceed to determine whether the underlying felony did or did not merge, as a matter of fact, into the malice murder count. Hutchins v. State, supra; Renner v. State, supra.

If by "conviction" one means the judgment or sentence pronounced by the court ([cit.]) then it is true that one may not be "convicted" for both felony murder and the underlying felony. However, a jury may return guilty verdicts as to each and if one is not sentenced for the felony murder (but for malice murder, for example) then one can be sentenced for the underlying felony.

(Emphasis in original.) Renner v. State, supra at 519 (6), fn. 3. See also Hutchins v. State, supra at 367 (3) (wherein the defendant was properly sentenced on only the malice murder count and the separate sentence for armed robbery, which underlay the felony murder count, was upheld). Thus, under Hutchins and Renner, the underlying felony does not merge, as a matter of law, into a vacated felony murder conviction so as to foreclose a determination as to whether a separate sentence on the underlying felony may be authorized for lack of merger, as a matter of fact, into the extant malice murder conviction.

Moss and the instant case differ from Hutchins and Renner in one respect. In both Hutchins and Renner, the trial court correctly treated the alternative felony murder counts as merely surplusage and imposed a sentence only on the malice murder counts. In both Moss and the instant case, the trial court erroneously failed to treat the alternative felony murder counts as merely surplusage and imposed a sentence on the malice and felony murder counts. However, there is no logical or legal reason why the rationale of Hutchins and Renner should not apply in a case wherein it is this court, rather than the trial court, which properly treats the felony murder count as merely surplusage to the valid malice murder conviction. When valid guilty verdicts are returned on both alternative counts of malice and felony murder, the alternative felony murder count is vacated by operation of OCGA § 16-1-7. Thus, there is no felony murder count into which the underlying felony can merge, since the felony murder conviction has been statutorily vacated. Accordingly, it should be immaterial whether that statutory effect is initially recognized by the trial court's imposition of a sentence only as to the alternative malice murder count or whether the trial court's error in failing to recognize that statutory effect is ultimately corrected by this court's vacating of the sentence on the alternative felony murder count, as in Div. 4 of this opinion. In either event, the end result is that the defendant has only been "sentenced for malice murder, not felony murder...." Renner v. State, supra at 519 (6). Accordingly, we overrule Moss v. State, supra at 703 (3), to the extent that it suggests that the underlying felony merges, as a matter of law, into an otherwise vacated felony murder conviction and, consistent with Hutchins and Renner, we proceed to determine whether the underlying felonies in the instant case merged, as a matter of fact, into appellant's valid malice murder conviction.

The indictment alleged that appellant had committed aggravated assault "by shooting [the victim] with a pistol, a deadly weapon...."

The evidence used to prove that appellant perpetrated the aggravated assault of the decedent — that he fired a deadly weapon and wounded the victim — was used to establish that appellant had committed the crime of malice murder. As the aggravated assault offense was established by the same but less than all of the facts required to establish the offense of murder ([cit.]), the aggravated assault was an offense included in the malice murder conviction, and the conviction and sentence for the aggravated assault of the murder victim must be set aside. [Cits.]

Montes v. State, 262 Ga. 473, 474 (1) ( 421 S.E.2d 710) (1992). Compare Griffin v. State, 257 Ga. 148, 150 (6) ( 356 S.E.2d 209) (1987) wherein

the assault for which [the defendant] was convicted began when [he] pulled his gun on [the victim], before the homicide was committed, [and] no merger between the aggravated assault and the malice murder conviction occurred. [Cit.]

(Emphasis supplied.)

Appellant's conviction for violating OCGA § 16-11-131 is based upon his status as a convicted felon and his act of possessing, rather than firing, a gun. Possession of a firearm by a convicted felon occurs both before and after the convicted felon's perpetration of a crime by use of the firearm. Coleman v. State, 163 Ga. App. 173, 174 ( 293 S.E.2d 395) (1982). The only evidence used to prove appellant's guilt of malice murder was that which showed that he possessed a gun while firing a shot which struck and killed the victim. The evidence that appellant also possessed the gun immediately before and after shooting the victim authorizes a separate conviction and sentence for violating OCGA § 16-11-131. "Because [appellant] was found guilty of malice murder, he was convicted properly also of the possession count, it being unrelated to malice murder." (Emphasis in original.) Stone v. State, 253 Ga. 433, 434 (2) ( 321 S.E.2d 723) (1984).

6. The judgments of conviction and sentences are affirmed as to the malice murder count and the possession of a firearm by a convicted felon count. The judgments of conviction and sentences are vacated as to the two alternative felony murder counts and the aggravated assault count.

Judgments affirmed in part and vacated in part. All the Justices concur.