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Final Copy 291 Ga. 287 S12A0853. GREEN v. THE STATE.

CARLEY, Chief Justice. After a jury trial, Appellant Sam Green was found guilty of the malice and felony murder of Candy Wright, a separate charge of aggravated assault against Ms. Wright, and the rape and aggravated assault of Leanna Ziel. The felony murder verdict was vacated by operation of law, and the charge of aggravated assault against Ms. Wright was merged into the malice murder count. The trial court entered judgments of conviction on the remaining guilty verdicts and imposed consecutive sentences of life imprisonment for murder and for rape and 20 years for aggravated assault. A motion for new trial was denied, and Appellant filed a timely notice of appeal. *

The crimes occurred on July 6, 2007 and on September 24, 2007, and the grand jury returned an indictment on October 29, 2008. The jury found Appellant guilty on October 15, 2010, and, on October 22, 2010, the trial court entered the judgments of conviction and sentences on the guilty verdicts. The motion for new trial was filed on October 28, 2010, amended on July 7, 8, and 27, 2011, and denied on October 19, 2011. Appellant filed the notice of appeal on October 27, 2011. The case was docketed in this Court for the April 2012 term and submitted for decision on the briefs.
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1. Construed most strongly in support of the verdicts, the evidence shows that, in the early morning hours of July 6, 2007, Curtis White saw Appellant on top of Ms. Wright in a filthy shed and was told to keep going. Shortly thereafter, Appellant exited the shed, spoke with White, and started to run away. White checked on Ms. Wright, found her almost completely unclothed, realized that she was dead, told Vincent Robinson to call the police, and later identified Appellant in a photographic lineup and in court. Ms. Wright died of manual strangulation with multiple sharp force and blunt force injuries, and Appellant's DNA was found on the genital, rectal, and buttocks areas of her body. Appellant admitted that he had consensual sex with Ms. Wright on several occasions. In the early morning hours of September 24, 2007, Appellant grabbed Ms. Ziel, pushed her through a fence hole and onto some steps, held her neck with his hand to the point that she could not breathe, raped her, and fled. Ms. Ziel noticed and later identified Appellant's skull's head belt buckle, which was found in his bedroom and identified as his by his sister. Appellant's DNA was recovered in semen from Ms. Ziel's vaginal and rectal areas, and she identified him in court.

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Appellant contends that the evidence would be insufficient if, as argued in other enumerations, certain evidence had been excluded and trial counsel had not been ineffective. The determination of the sufficiency of evidence,

including what specific evidence can be considered and the effect of trial errors, has serious implications. Under Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978), "once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the jury's verdict of guilty, double jeopardy bars retrial." Hall v. State, 244 Ga. 86, 93 (5) (259 SE2d 41) (1979). However, the Double Jeopardy Clause "does not preclude the State from retrying a criminal defendant whose conviction is set aside due to trial error, such as the incorrect admission of evidence or improper instructions. [Cits.]" State v. Caffee, 291 Ga. 31, 34 (3) (__ SE2d __) (2012). "[A] reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause . . . ." Lockhart v. Nelson, 488 U. S. 33, 41 (109 SC 285, 102 LE2d 265) (1988). Furthermore, with rare exceptions, "where a `defendant was deprived of effective assistance of counsel but the evidence was nevertheless sufficient to convict, the proper remedy is to reverse defendant's conviction and remand the matter for a new
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trial. (Cits.)' [Cits.]" Langlands v. State, 282 Ga. 103, 105 (2) (646 SE2d 253) (2007). Appellant's ineffectiveness claims involve the alleged failure to obtain more evidence, and, even if error in that regard requires reversal, a retrial itself would not violate his constitutional rights or be required for any other reason. See Langlands v. State, supra. Thus, in determining the sufficiency of the evidence, we consider all of the evidence admitted by the trial court, regardless of whether it was erroneously admitted, and disregard any additional evidence which a competent attorney might have obtained. See Maxwell v. State, 262 Ga. 73, 74 (1) (414 SE2d 470) (1992), overruled on other grounds, Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998). Compare Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997) (where, unlike here, hearsay was erroneously admitted, was wholly without probative value under unique Georgia rule applicable prior to the January 1, 2013 effective date of OCGA

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