MELTON, Justice.
Following a jury trial, J'Quante Crews was found guilty of malice murder (Count 1), two counts of felony murder (Counts 2 and 4), aggravated assault (Count 5), armed robbery (Count 6), possession of a firearm during the commission of a felony (Count 7), and possession of a firearm by a convicted felon (Count 8) in connection with his role in the shooting death of Vernon Forrest.
1. Viewed in the light most favorable to the jury's verdict, the evidence presented at trial revealed that, at around 11:00 pm on July 25, 2009, Crews was at a Chevron gas station near Mechanicsville, in Atlanta, Georgia, along with his co-indictees, Demario Ware and Charmon Sinkfield. The three men were sitting in Ware's red Pontiac, waiting for their friends, Patrick David Wilson and Anthony Hollis, before going to a strip club. Eventually, Wilson and Hollis arrived at the Chevron in a blue Ford Expedition.
The victim, Forrest, who was driving a Jaguar XS, also arrived at the gas station. Forrest was with ten-year-old Ernest Guillory, who needed to stop at the gas station to use the bathroom. While Guillory was inside the Chevron store, Sinkfield had a brief conversation
While Forrest was bending down to put some air in his car tires, Ware stood over him with a gun, ordering him to "lay it down," and saying "I got you." Ware then stole Forrest's diamond-studded watch and "world championship boxing" ring and ran away. Forrest then pulled out his own gun and began chasing Ware in an effort to get his stolen items back.
Ware forced his way into an apartment complex by threatening a resident there with his gun. Ware then hid behind the apartment complex gate, and he started "looking for [a] red car."
While Forrest was chasing Ware, Sinkfield, while on Wilson's phone, received a call from Crews. After this call, Sinkfield told Wilson to drive to the apartment complex where Ware had been hiding and where Forrest had been chasing him. When they arrived, Sinkfield got out of the Expedition and confronted Forrest. At one point, the confrontation appeared to resolve, and Forrest began to walk away. As he did so, Sinkfield shot him in the back several times, killing him.
Shortly after Crews had called Sinkfield, Ware called Crews several times, after which Crews drove to the apartment complex where Ware had been hiding out. When Crews arrived in Ware's red Pontiac, Ware ran out to the car and got into the front passenger seat. Crews then drove towards the scene of the shooting, and he picked up Sinkfield near some railroad tracks to which Sinkfield had run after having killed Forrest.
The evidence was sufficient to enable a rational trier of fact to find Crews guilty of all of the crimes of which he was convicted beyond a reasonable doubt.
However, while the evidence was sufficient to sustain the convictions, the trial court erred with respect to a portion of Crews' sentencing. Specifically, Crews was charged with malice murder, three counts of felony murder (based on aggravated assault with a deadly weapon, possession of a firearm by a convicted felon, and armed robbery), aggravated assault with a deadly weapon, armed robbery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The jury found him guilty on all counts except for the felony murder count based on possession of a firearm by a convicted felon, and the trial court purported to "merge" the two remaining felony murder counts and the independent aggravated assault and armed robbery counts upon which the felony murder counts were based, into the malice murder count for sentencing purposes. However, the two felony murder counts should have been "vacated by operation of law" rather than merged into the murder count, "because they involved the same victim as the malice murder count."
Id.
2. Crews contends that juror number 41, Shaneka Brown, engaged in irregular conduct that deprived him of a fair trial. We disagree.
Although
(Citations and punctuation omitted.)
The record here reveals that, after opening statements, Brown, the juror in question, wrote a note to the trial court informing the court, "I know Twin." Twin was Sinkfield's nickname, and Brown overheard one of the attorneys say the name "Twin" in the case. The trial court questioned Brown outside of the presence of the other jurors, and Brown stated that she knew Twin because he was her nephew's uncle, and that her nephew had mentioned to her that Twin was in jail for "something about him and a boxer." However, Brown said that she knew nothing more specific about the matter, that she did not spend time with Twin, and that she would not talk to any of the jurors about the fact that she recognized the name Twin. Under further questioning, Brown also stated that she would remain fair and impartial and decide Crews' case based on the evidence presented. Following the initial exchange between the trial court and Brown after opening statements, Crews' counsel argued to the trial court that Brown should not be dismissed as a juror, because Crews, and not Sinkfield, was on trial, and because Sinkfield was not going to be a witness in the case.
Following the trial, counsel for Sinkfield sent a letter to the trial court indicating that Sinkfield had spoken with Brown on the phone during Crews' trial. At the hearing on Crews' motion for new trial, neither Sinkfield nor his counsel testified. However, Brown did testify, stating that Sinkfield only had her phone number for purposes of getting in touch with her nephew or Brown's sister (the mother of Sinkfield's nephew). Brown also testified that Sinkfield called her and said to her that he knew that she was on the jury in Crews' case, but Brown immediately told Sinkfield that she could not discuss the trial and handed the phone to her sister. Brown did not know where Sinkfield was calling her from, as she never accepted any collect call from him, and she did not recognize the number from which Sinkfield was calling when she picked up the phone. Brown did not initiate any contact with Sinkfield, and, although Sinkfield tried to call her on more than one occasion, any time he called, Brown handed the phone immediately to her sister or nephew. She did not discuss the case with Sinkfield, her sister, or anyone else, and she reaffirmed at the motion for new trial hearing that she had no vested interest in Crews' case and made her decision in the case based on the law presented by the trial court and the evidence presented at trial.
Under these circumstances, we do not find "any action by [the] juror in [this] case [that] was presumptively so prejudicial as to infect the verdict and require that [Crews] be given a new trial."
3. Crews contends that the trial court erred in allowing a lay witness — a records
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
All the Justices concur.