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287 Ga. 351 S10A0148. SANFORD v. THE STATE.

Hines, Justice. A jury found Otis Sanford guilty of malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Veronica Corbett. Following the denial of a new trial, Sanford appeals his convictions, claiming that the trial court erred in admitting into evidence certain out-of-court statements and in failing to properly ascertain whether he wished to exercise his right to testify, and that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.1 The facts construed in favor of the verdicts showed the following. On

The crimes occurred on October 1, 2004. On July 1, 2005, a Fulton County grand jury indicted Sanford for malice murder, felony murder while in the commission of aggravated assault with a deadly weapon, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The possession of a firearm by a convicted felon count was dead docketed. Sanford was tried before a jury February 22-28, 2006, and found guilty of the remaining charges. On March 1, 2006, he was sentenced to life in prison for malice murder and a consecutive five years in prison for possession of a firearm during the commission of a felony. The trial court found the aggravated assault with a deadly weapon merged for the purpose of sentencing and the felony murder stood vacated by operation of law. A motion for new trial was filed on March 24, 2006, amended on March 20, 2009, and denied on July 17, 2009. A notice of appeal was filed on August 12, 2009, and the case was docketed in this Court on September 25, 2009. The appeal was submitted for decision on November 16, 2009.

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October 1, 2004, Corbett was at the home of Marhna Smith, who was the father of one of her children. Corbett lived with Sanford from time to time. That day Sanford went to Smith's home to talk to Corbett and to get his cell phone and keys from her. Smith took Sanford's things outside where Sanford could retrieve them. Corbett did not want to talk to Sanford, but he would not leave. After waiting for about ten minutes, Sanford entered the house and ran past Smith, chasing Corbett through the house and down some stairs. Sanford then fired two shots at Corbett, striking her. Smith ran from the house after he heard the gunshots, and returned when he saw Sanford leave. Officer Gerjets arrived on the scene and found Corbett with a gunshot wound to the chest, but still alive and conscious. She held a pillow to her abdomen and was in obvious pain. She told the officer that Sanford had gone down into the basement and shot her. Subsequently, Smith identified Sanford from a photographic lineup as the man at his house when Corbett was shot. Corbett died at the hospital several hours after the shooting as a result of the gunshot wound. At trial, Officer Gerjets testified that at the crime scene Corbett told him that Sanford had shot her because they had been in a relationship and had broken up and she was "transitioning in a relationship with Smith." Sanford did
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not testify at the trial. 1. The evidence was sufficient to enable a rational trier of fact to find Sanford guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Prior to the start of trial, the trial court held a hearing on Sanford's motion to exclude statements made by Corbett to Officer Gerjets that Sanford had shot her. The statements were made as Corbett was waiting for help from emergency responders, and the trial court ruled that the statements were admissible into evidence as dying declarations and as part of the res gestae. Sanford contends that such ruling was error because the statements inculpating him did not qualify as dying declarations in that Corbett was not in the "article of death" when she made the statements, and, in fact, did not die until several hours later; he further argues that Corbett's statements were not admissible under the rationale of res gestae because they were made in response to police questioning, and that even if the statements qualify as either dying declarations or part of the res gestae, the analysis in Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004), should be applied to find them
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inadmissible. However, the contentions are unavailing. One of the requirements for a statement to be admissible as a dying declaration is that the deceased must have been conscious of his condition. . . . OCGA

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