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Final Copy 290 Ga. 599

S11A1910. FOSTER v. THE STATE. BENHAM, Justice. Appellant Andrew Markus Foster was convicted of the felony murder of Waylon George, with conspiracy to commit armed robbery as the underlying felony, and sentenced to life imprisonment.1 The State presented evidence that the victim died in the parking lot of an Acworth apartment complex as a result of a single gunshot wound to his left

The victim was killed on February 26, 2005, and the Cobb County grand jury returned a true bill of indictment in May 2005 that charged appellant and two others with malice murder, felony murder (aggravated assault), felony murder (conspiracy to commit armed robbery), aggravated assault, and conspiracy to commit armed robbery. Appellant was tried November 28December 1, 2005, and was found guilty of all charges save malice murder, on which charge the trial court directed a verdict of acquittal. The judgment of conviction was reversed by this Court in Foster v. State, 283 Ga. 484 (660 SE2d 521) (2008). The convictions of appellant's coindictees, Travis Wilson and Lanny Frazier, who were tried together, were affirmed by this Court in Wilson v. State, 285 Ga. 224 (675 SE2d 11) (2009). Following the reversal of appellant's convictions, the Cobb County grand jury returned a superseding indictment that charged appellant with the same crimes with which he was charged in 2005, with the exception of malice murder. Appellant's re-trial took place October 13-16, 2008, and he was found guilty of all counts. On October 17, 2008, the trial court sentenced appellant to life imprisonment for felony murder with conspiracy to commit armed robbery as the underlying offense, vacated the second felony murder conviction, and merged the remaining convictions as a matter of fact. Appellant's motion for new trial was filed on October 17, 2008, was amended on December 17, 2010, and was the subject of a hearing on December 17, 2010. The trial court denied the amended motion on December 17, and a timely notice of appeal was filed on January 14, 2011. The appeal was docketed in this Court to the September 2011 term of court, and argument was heard on November 21, 2011.

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chest that struck several vital organs and caused extensive internal bleeding. A visitor to the complex heard the gunshot and saw a white sports utility vehicle drive away and the victim sprawled on the ground. A woman who drove the victim to the place where he was shot testified that a white SUV occupied by two men had parked next to her car in the complex's parking area, that the victim told her the SUV's passenger had asked him if he was waiting for "Don Juan," that the victim exited the car to throw away trash, and that the SUV's passenger shot the victim with a rifle. The woman also testified that the victim had received several phone calls as they drove to the apartment complex and that the victim had told her the calls were from appellant. Just before arriving at the complex, the victim called a man known as "Don Juan" and told him he would reach the complex in a few minutes. "Don Juan" testified he had arranged to meet the victim in the complex in order to sell him cocaine, and had told appellant about his plans to meet the victim. When questioned by police in a recorded interview, appellant stated that he had sent his co-indictees, Travis Wilson and Lanny Frazier, to meet the victim in the apartment complex and to rob him by selling him powdered wallboard as cocaine. Appellant told the investigating detectives that the co2

indictees had shot the victim instead of robbing him. A man who shared a jail cell with appellant in the Acworth City Jail testified that appellant told him that appellant had sent two young men to rob the victim, that they had carried a Ruger Mini 14 with them, and had fatally shot the victim. A .223-caliber shell casing was found near the victim, and a firearms expert testified that a Ruger Mini 14 was designed to fire a .223-caliber cartridge. The cellular phone records of the victim, appellant, "Don Juan," and one of the co-indictees corroborated the testimony summarized above and indicated that appellant and the co-indictee had been in touch telephonically at least sixteen times the day the victim was killed, including phone calls placed shortly before and after the victim was killed. 1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of felony murder with conspiracy to commit armed robbery as the underlying felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Appellant contends the trial judge violated OCGA

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