Smith v. State , 267 Ga. 363 ( 1996 )

Carley, Justice.

A jury convicted Richard Smith of malice murder and rape. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.¹

1. The evidence at trial showed that, in August 1993, the victim was raped, severely beaten and stabbed to death with a phillips head screwdriver. Smith was seen smoking crack with the victim approximately 30 minutes before her death. He was the last person to be seen with her. Both the State’s and Smith’s experts agreed that DNA evidence taken from the victim matched Smith and that the chance of finding another match was one in a hundred billion. Several witnesses testified that Smith usually carried a phillips head screwdriver in his back pocket. This evidence was sufficient to authorize a rational trier of fact to find proof of Smith’s guilt of rape and murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The State offered evidence that Smith raped and murdered another woman in March 1993. Smith contends that there was insufficient evidence that he committed this prior murder. Smith’s identity as the perpetrator of the independent act must be proved by “sufficient” evidence. Williams v. State, 251 Ga. 749, 755 (312 SE2d 40) (1983). The State presented witnesses who established that, shortly before the other victim was killed, Smith was seen walking with her toward the abandoned building where her body was found and that she was not seen alive afterwards. The State also presented DNA evidence that linked Smith to the other victim’s rape. Because the State’s evidence was sufficient to show Smith was the murderer of the other victim, we find no reversible error.

3. Smith also contends that the evidence of the prior murder was not sufficiently similar as to be admissible for any relevant purpose. However, the trial court admitted the evidence to show identity and modus operandi. Both murders took place within a six-month period and in the same neighborhood. Both victims were prostitutes, crack users, the same race, and about the same age. Both murders involved rape, extreme rage against the victims and the use of opportunistic weapons. After reviewing the record, we conclude that the trial court did not err in admitting this evidence. Farley v. State, 265 Ga. 622 (458 SE2d 643) (1995).

4. Smith contends that, prior to trial, the prosecutor allowed the State’s key witnesses to review each other’s statements and also informed the witnesses about Smith’s prior conviction for manslaughter. According to Smith, these actions constitute prosecutorial misconduct that deprived him of his right to a fundamentally fair trial. However, the defense also had all of the witnesses’ statements. Therefore, Smith could have elicited on cross-examination any suspicious consistencies or influences that resulted from one witness having seen another’s statement. With regard to Smith’s prior manslaughter conviction, he could have inquired, outside the presence of the jury, how the witnesses’ knowledge thereof may have influenced their testimony. On the record before us, however, there is nothing more than mere speculation that this knowledge may have influenced their testimony. Therefore, even assuming without deciding that Smith has shown prosecutorial misconduct, he has shown no harm resulting therefrom. In the absence of any specific showing of harm, we find no denial of due process.

Judgments affirmed.

All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J., who concur specially.

1 The crimes occurred on August 3, 1993. The grand jury indicted Smith on June 21, 1994. The jury returned its guilty verdicts on August 26, 1994. Smith received two consecutive life sentences. He filed a motion for new trial on September 23, 1994, and amended motions on September 28, 1994 and October 2,1995. The motions were denied on October 5, 1995. Smith filed a notice of appeal on October 30, 1995. The case was docketed in this Court on March 5, 1996 and oral argument was held on May 14, 1996.