THOMPSON, Chief Justice.
A jury convicted appellant John Blackmon of felony murder and other offenses in connection with the shooting death of Timothy Blalock and the aggravated assault and aggravated battery of Timothy Ghiden.
1. Viewed in the light most favorable to the jury's verdicts, the evidence shows that on August 25, 2013, as Blalock and Ghiden parked their car outside a shopping center where Ghiden worked, appellant and other men pulled alongside the vehicle and shot into the vehicle multiple times. Deputy Roget Cook and police officer Kristina Ashby Rowland, who were working security at a restaurant in the same shopping center, were informed of the shooting and ran outside to help. There, they saw a silver- or beige-colored Tahoe driving away and a black Impala that had jumped the curb and come to a stop. Blalock, who was sitting inside the Impala, told Cook he was shot by someone in the truck that drove off. Blalock died at the scene from a gunshot wound to the torso.
Rowland followed a trail of blood leading from the Impala into a tattoo parlor in the same shopping center. There, she found Ghiden suffering from multiple gunshots to his arm. Ghiden told Rowland he knew who shot him, but because of his medical condition, no additional questions were asked. A witness at the scene told officers he saw Blalock and Ghiden in the Impala when a tan Tahoe pulled up beside it. He said two shooters from inside the Tahoe, one with a shotgun or
Ghiden was transported to Grady Memorial Hospital where he told investigators that: (1) a truck blocked in his car in front of the tattoo parlor and a person inside the truck started shouting profanities; (2) the driver of the truck pulled out a black machine gun and started shooting; (3) he did not know the legal name of the person who shot him but this person went by the moniker "Hot Boi John;" and (4) an hour and a half before the shooting, "Hot Boi" and his brother pulled next to Ghiden at a Citgo gas station and pulled out the same black machine gun that was used in the shooting. Ghiden told another investigator he saw the person who shot him but did not want to testify because he feared reprisal. On three occasions, however, Ghiden told this investigator the shooter was "Hot Boi John." During a pre-trial photographic lineup which was videotaped, Ghiden identified appellant as the person he knew as "Hot Boi John" and as the person who shot him. Other evidence presented at trial included a photograph from appellant's Instagram account showing him in possession of the type of assault rifle which matched three shell casings found at the scene and a recording of a jailhouse telephone conversation in which appellant told a friend he had seen a video of Ghiden "snitching" and to "make sure [Ghiden] doesn't come to court. If he doesn't come to court everything will be over with."
We conclude this evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.
2. Appellant was found guilty of malice murder and two counts of felony murder, and the trial court properly sentenced him for malice murder. The trial court purported to merge the felony murder counts, which were predicated on charges of aggravated assault and possession of a firearm by a convicted felon, into the malice murder count, but the felony murder counts were vacated by operation of law. Because of the trial court's failure to recognize that the felony murder counts were vacated, it erroneously merged the underlying crime of unlawful possession of a firearm by a convicted felon into the felony murder predicated on that crime. Thus, the trial court failed to sentence appellant for a crime for which he was found guilty and should have been convicted and sentenced. Accordingly, we vacate that portion of the trial court's sentencing order in which it merged the unlawful possession of a firearm by a convicted felon charge into one of felony murder charges, and we remand for resentencing. See
3. Appellant contends the trial court erred by admitting evidence of Ghiden's pre-trial identification of appellant because it was the result of an impermissibly suggestive photographic lineup which gave rise to a substantial likelihood of misidentification. He argues the photographic lineup was impermissibly suggestive because he had "larger hair and bigger eyes" than the individuals in the other photos and because Ghiden was under the influence of prescription pain medications when he identified appellant as the person who shot him. We find no merit in his contentions.
(Citations and punctuation omitted.)
As an initial matter, appellant's claim that Ghiden was under the influence of prescription pain medications at the time he identified appellant in the photographic lineup does not establish that the identification procedure was impermissibly suggestive. This allegation relates to the determination of whether there was a substantial likelihood of misidentification, an issue that arises only after a court determines the identification procedure was impermissibly suggestive.
Appellant's assertion that his photograph was not sufficiently similar to the others in the array raises a proper challenge to the method of the identification procedure. The array in this case consisted of photographs of appellant and five other males of similar age and with similar physical characteristics and facial features. Our review of the array discloses that any slight variations in the features of the men photographed would not have led Ghiden to the "all but inevitable identification" of appellant as the perpetrator. See
4. In a related argument, appellant asserts he was entitled to directed verdicts because the State's case depended on Ghiden's pre-trial identification of appellant. In reviewing a trial court's denial of a motion for a directed verdict of acquittal, this Court applies the sufficiency of the evidence standard of
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
All the Justices concur.