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Final Copy 287 Ga. 713 S10A0580. WHITE v. THE STATE. BENHAM, Justice. Appellant Joseph White was convicted of and sentenced to life imprisonment for the malice murder of Nellie Mae Kirkland. He was also convicted of and sentenced for concealing the death of the victim and for tampering with evidence.1 On appeal, he contends he was not afforded effective assistance of counsel, he challenges the sufficiency of the evidence and the removal of a juror during the trial, and he argues the trial court erred in its charge to the jury. Shortly after 8:00 a.m. on July 10, 2005, a police officer found the nightgown-clad body of a woman lying face-down in a pool of blood in a parking area of a city park in southwest Atlanta. The forensic pathologist who
The crimes took place the night of July 9-10, 2005, and appellant was arrested on July 10. On September 30, 2005, the Fulton County grand jury returned a true bill of indictment charging appellant with malice murder, felony murder (aggravated assault), aggravated assault, aggravated battery, concealing the death of another, and tampering with evidence. Appellant's trial commenced on June 16, 2006, and concluded with the trial court's direction of a verdict of not guilty on the aggravated battery charge and the jury's return of guilty verdicts on the remaining counts on June 23. Filed on June 27, 2006, was the trial court's imposition of a life sentence for malice murder, a consecutive sentence of ten years for concealing the death of another, and a three-year sentence for tampering with evidence, to be served concurrently with the ten-year sentence. A motion for new trial, filed on July 17, 2006, and amended on July 7, 2009, was the subject of a hearing held on July 10, 2009. The amended motion for new trial was denied on November 17, 2009. Appellant filed a notice of appeal on August 7, 2009, from the trial court's oral order denying the amended motion for new trial, and an amended notice of appeal on December 8, 2009, following the entry of the written order denying the amended motion for new trial. The appeal was docketed to the January 2010 Term of this Court when the appellate record was filed in this Court. It was submitted for decision on the briefs.
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performed the autopsy on the body testified she had suffered multiple blunt force trauma to her head, with the cause of death being strangulation. The body had post-mortem abrasions on her back, buttocks, heels, and right thigh, shoulder, wrist and hand, most likely inflicted when she was dragged by the feet and by the wrists or underarms to the site where she was found. Between 8:008:30 that same morning, appellant Joseph White telephoned the daughter of Nellie Mae Kirkland, the woman he lived with in southwest Atlanta, and reported that Ms. Kirkland was not at her home but her purse and vehicle were there. The daughter called police to report her mother was missing and went to her mother's home, one-tenth of a mile from the park in which the woman's body had been found. The homicide unit commander of the Atlanta Police Department testified that at about noon on July 10 he was approaching the site where the dead woman's body had been found, and appellant flagged him down to report that his girlfriend was missing. A detective who was investigating the homicide came to the home of the missing woman after being contacted by the missing woman's daughter, who feared her mother was the woman found in the park. The detective and the missing woman's son walked through the tidy home and found the victim's walking cane and purse, and the detective noticed what appeared to be blood on appellant's calf. The missing woman's son took a photograph of his mother to the county morgue where the woman found in the park was identified as being Ms. Kirkland. Police executed a search warrant at the victim's home and discovered blood-soaked sheets, pillows, and mattress on

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a bed that had been made, and blood on a leg of a nightstand and on a cardboard box in the bedroom. When the searching officers lifted the mattress, they found a knife lodged in the center of the bed between the mattress and box springs. Found in the backseat of the patrol car used to transport appellant to police offices were two cardboard scraps from the box in the bedroom, which scraps contained blood determined to be that of the victim. The victim's children testified their mother had told them she planned to have appellant leave her home because he had resumed using illegal drugs and she feared him and his bizarre behavior. The victim had made arrangements for one of her children to change the locks on the victim's home when appellant next left for work. An acquaintance of appellant testified that between 8:009:00 a.m. on July 10, appellant, with a few scratches on his hands, visited her home where he bought and consumed alcoholic beverages. Appellant testified he had spent July 9 smoking crack cocaine and drinking wine and beer, and the victim had realized how he had spent the day when she returned home at 9:00 p.m. While the two were in a bedroom, the victim berated appellant about his behavior, mentioned her regret at having recently made a $4,000 down payment on the vehicle he used, and then slapped him, pushed him down on the bed, and jumped on him. He was able to get her off him, at which point the victim swung at him with a knife, and he pushed her, causing her to strike her face on the nightstand. According to appellant, the victim stood up and went into the kitchen, leaving appellant in the bedroom. Fifteen minutes later, appellant found her on the kitchen floor and, believing her

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to be dead, left the house. He returned 30-40 minutes later, found her in the same place he had left her, and dragged her body from the house to the park, falling down the six front steps of the house and causing the victim's head to repeatedly hit the steps. He returned to the house, cleaned up, and called the victim's daughter and asked where her mother was. 1. Appellant contends the evidence presented by the State was not sufficient to support the jury's guilty verdicts. (a) Appellant's concerns about the jury's guilty verdicts for felony murder/aggravated assault and aggravated assault are moot since the felony murder conviction was vacated by operation of law ( Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993)), and the trial court found the aggravated assault conviction to have merged into the malice murder conviction as a matter of fact. OCGA

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