Miller v. State

¶1In the Supreme Court of Georgia

¶2 Decided: October 19, 2021

¶3 S21A1245. MILLER v. THE STATE.

¶4 MCMILLIAN, Justice.

¶5 Keontay Miller appeals his convictions for malice murder and

¶6other crimes arising out of the shooting death of Tellis Fort.1 Miller

¶7 1 Fort was killed on May 14, 2015, and in August 2015, a Crisp County grand jury indicted Miller and Conardo Dennard for one count of malice murder (Count 1), one count of felony murder (Count 2), one count of aggravated assault (Count 3), and two counts of possession of a firearm during the commission of a felony (Counts 4 and 5). Miller was separately charged with two counts of possession of a firearm by a convicted felon (Counts 8 and 9). Miller was tried separately from Dennard, who is not a party to this appeal. At a trial conducted from February 22 through February 24, 2016, a jury found Miller guilty on all counts. In March 2016, the trial court sentenced Miller to life imprisonment without the possibility of parole for malice murder; a five-year term of imprisonment for each count of possession of a firearm during the commission of a felony, to run consecutively; and a five-year term of imprisonment for each count of possession of a firearm by a convicted felon, to run concurrently. Miller’s other convictions were either merged or were vacated by operation of law. Miller filed a timely motion for new trial on March 18, 2016, which was amended through new counsel on March 15, 2018. After a hearing, the trial court denied the motion as amended on April 12, 2018. Miller timely filed a notice of appeal on May 16, 2018; the case was docketed to the August 2021 term of this Court and submitted for a decision on the briefs. asserts on appeal that the evidence presented at his trial was

¶8insufficient as a matter of constitutional due process to support the

¶9verdict and that there were direct and irreconcilable conflicts in the

¶10evidence and contradictions between the testimonies of witnesses at

¶11trial, which require a new trial. These contentions are without merit

¶12although we conclude that the trial court committed two merger

¶13errors at sentencing.

¶14 Viewed in the light most favorable to the jury’s verdict, the

¶15evidence showed that on the evening of May 14, 2015, Fort and a

¶16friend worked out together at a local gym. Fort’s friend testified that

¶17he left Fort at the gym around 9:30 p.m. At around the same time, a

¶18witness walking past Fort’s house saw a person standing behind the

¶19house “peek in and peek out,” and then retreat from view. About 40

¶20minutes later, at 10:12 p.m., police received a call from Fort’s

¶21neighbor, who reported that she and her adult son heard multiple

¶22gun shots fired nearby. Fort’s neighbor also told the 911 dispatcher

¶23that her son had witnessed two “boys” in white clothing running

¶24down the street. Another witness testified about hearing the sound

¶25 2 of sirens and then seeing two males – one wearing red shorts and a

¶26white shirt and the other wearing blue jeans and a white shirt –

¶27running away. This witness testified that one of the males was about

¶286 feet, 2 inches tall, and the other was 5 feet, 9 inches tall. These

¶29descriptions were consistent with Miller, who stands 5 feet, 9 inches,

¶30and his co-defendant, Conardo Dennard, who stands 6 feet, 1 inch.

¶31 The responding officer arrived just minutes after the 911 call

¶32was made and discovered Fort lying on the ground, next to the

¶33driver’s side door of his vehicle near his house. The officer testified

¶34that Fort had a gunshot wound and was covered in blood, Fort’s

¶35wallet and keys were found next to his body, and the pocket of his

¶36shorts was turned inside out. Fort died subsequently, and the

¶37medical examiner testified that the cause of Fort’s death was a

¶38gunshot wound to his chest.

¶39 Police canvassed the area and discovered two small-caliber

¶40pistols stacked on top of each other and hidden in a yard behind

¶41Fort’s house. One was a .25-caliber semi-automatic pistol with a

¶42magazine, and the other was a .380-caliber semi-automatic pistol

¶43 3 with a magazine. The crime scene investigator also found a .380-

¶44caliber cartridge case next to the front passenger side of Fort’s

¶45vehicle.

¶46 On May 15, the morning after Fort’s death, Miller’s mother

¶47brought Miller and Dennard to the Cordele Police Department

¶48because she had heard Miller’s name mentioned in connection with

¶49the shooting and wanted to “clear his name.” Police interviewed

¶50Miller and Dennard and obtained cell phone numbers and DNA

¶51samples from both men. Miller and Dennard individually told police

¶52that on the previous night they were together at the home of their

¶53friend Bertha Jackson, also known as “Peaches,” around 9:00 p.m.,

¶54and that they stayed at Jackson’s mobile home for the remainder of

¶55the night.

¶56 However, phone records showed that Dennard’s cell phone was

¶57pinging off cell towers around the area where Fort’s house was

¶58located from 9:18 p.m. to 10:17 p.m. on the night of the shooting. At

¶5911:08 p.m., Dennard’s number sent a text message to Jackson’s

¶60phone that read: “Dis red come pick us up please man.” (The State

¶61 4 presented evidence that Miller’s nickname is “Red.”) Miller’s phone

¶62had no activity from 8:05 p.m. to 10:31 p.m., but made numerous

¶63calls from 10:31 p.m. until 11:10 p.m. – all of which pinged off cell

¶64towers in the city of Cordele, in a radius where Fort’s house is

¶65located, and not off the tower near Jackson’s home. Miller’s phone

¶66made a call at 1:19 in the early morning of May 15, which did ping

¶67off the phone tower near Jackson’s home.

¶68 An acquaintance of the co-defendants testified that, on the

¶69night of the murder, he received two phone calls from Dennard’s

¶70number – at 11:18 p.m. and 11:27 p.m. After receiving the second

¶71call, this witness testified that he drove Miller and Dennard from

¶72the vicinity of the murder to Jackson’s home. A witness who was

¶73living with Jackson during this time testified that Miller and

¶74Dennard arrived around 1:30 a.m. on May 15; Miller was wearing

¶75shorts and a white t-shirt, and Dennard was wearing blue jeans and

¶76a white t-shirt.

¶77 After giving statements to the police on May 15, Miller and

¶78Dennard left town and could not be located by the police. On June 3,

¶79 5 officers from the Camden County Sheriff’s Office found the two men

¶80in a motel room in St. Marys, Georgia, but they were not registered

¶81under either of their names. Both men were placed under arrest.

¶82Miller and Dennard were then incarcerated in the Crisp County jail.

¶83Miller’s cellmate subsequently gave investigators two letters

¶84written on notebook paper, which had Miller’s and Dennard’s

¶85fingerprints on them. One read, in part, “Peaches house around

¶8610:25.” The other, in relevant part, read:

¶87 I sold both of my pistols . . . to a boy . . . in Atlanta. I shot one time in the air with the .380 to show him that it work . . . . Me and Conardo [Dennard] and Stefon went to Peaches’ house around 10:30. We get a ride by Jay, and that was all we did.

¶88The State argued that, taken in tandem, the letters were evidence

¶89of the pair attempting to get their stories straight about the night of

¶90Fort’s murder and to explain why Miller’s DNA would be on the

¶91murder weapon.

¶92 Additionally, the State submitted into evidence screenshots

¶93taken from Miller’s Facebook page. One screenshot featured a photo,

¶94posted on May 5, 2015, showing Miller with what appears to be the

¶95 6 butt of a semi-automatic pistol sticking out of his pocket. The jury

¶96also watched a video of Miller and Dennard, posted to Dennard’s

¶97Facebook page on May 8, 2015, in which Dennard displays what he

¶98calls his “pocket rocket,” which appeared to be a semi-automatic

¶99small-caliber pistol.

¶100 The jury heard testimony that the bullet taken from Fort’s

¶101autopsy and the cartridge case found near his vehicle were both fired

¶102from the .380 semi-automatic pistol found hidden near his house.

¶103The State’s expert in forensic biology testified that she had

¶104determined to a “scientific certainty” that Miller’s DNA profile was

¶105present on both the .25-caliber gun and the .380-caliber gun.

¶106 1. In his first enumeration of error, Miller argues that the State

¶107failed to present sufficient evidence to support each element of the

¶108crimes of malice murder, aggravated assault, and felony murder.

¶109However, Miller was not convicted or sentenced on the aggravated

¶110assault count or the felony murder count, so “his claims as to the

¶111sufficiency of the evidence supporting those counts are moot.”

¶112Blackshear v. State, 309 Ga. 479, 482 (1) (847 SE2d 317) (2020).

¶113 7 Thus, our review of the sufficiency of the evidence presented at trial

¶114is limited to the malice murder count. See id. “[T]he relevant

¶115question is whether, after viewing the evidence in the light most

¶116favorable to the prosecution, any rational trier of fact could have

¶117found the essential elements of the crime beyond a reasonable

¶118doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781,

¶11961 LE2d 560) (1979).

¶120 As to the malice murder count, Miller contends that the State

¶121failed to present evidence of malice aforethought. To convict

¶122someone of malice murder under OCGA § 16-5-1, the State is

¶123required to prove malice beyond a reasonable doubt; however, “[t]he

¶124malice necessary to establish malice murder may be formed in an

¶125instant, as long as it is present at the time of the killing.” Benton v.

¶126State, 305 Ga. 242, 244 (1) (a) (824 SE2d 322) (2019). It is for the

¶127jury to determine, from the facts and circumstances presented in

¶128evidence, whether a killing is malicious. See id.

¶129 One witness walking past Fort’s house around the time of the

¶130murder saw a person standing behind the house, waiting, and then

¶131 8 retreating from view. The State also presented multiple witnesses

¶132who testified about seeing two men, matching the description of

¶133Miller and Dennard, fleeing the scene of the shooting where Fort

¶134was lying on the ground covered in blood from his gunshot wound.

¶135Cell phone records – as well as testimony from the witness who

¶136drove Miller and Dennard that night – placed the pair in the vicinity

¶137of the victim’s home on the night of the shooting, rather than in the

¶138vicinity of Jackson’s home (where Miller told police he was located

¶139at the time of the murder). Miller and Dennard left town and could

¶140not be located by police for over two weeks and, once arrested, wrote

¶141letters to each other in which they attempted to establish an

¶142exculpatory, coherent narrative of the night of the murder. Most

¶143significantly, Miller’s DNA was present on both handguns found

¶144hidden near the victim’s house, one of which was the murder

¶145weapon. We conclude that the evidence presented at trial was

¶146sufficient to enable a rational trier of fact to conclude beyond a

¶147reasonable doubt that Miller was guilty of the crime of malice

¶148murder. See Benton, 305 Ga. at 244 (1) (a) (evidence sufficient to

¶149 9 support finding of malice murder where, among other things,

¶150appellant left the victim after shooting him); Moran v. State, 302 Ga.

¶151162, 163 (1) (b) (805 SE2d 856) (2017) (appellant shot victim at a

¶152close range as victim tried to escape, authorizing rational trier of

¶153fact to find evidence of malice); Shockley v. State, 297 Ga. 661, 663

¶154(1) (777 SE2d 245) (2015) (even without direct evidence linking

¶155appellant to the shooting, circumstantial evidence viewed in the

¶156light most favorable to the jury’s verdict was sufficient to support

¶157conviction for malice murder).

¶158 2. In a related enumeration of error, Miller contends that

¶159conflicts in the evidence and in witness testimony warrant reversal

¶160of the trial court’s denial of Miller’s motion for a new trial.

¶161 Miller relies on Alvelo v. State, 288 Ga. 437, 438-39 (1) (704

¶162SE2d 787) (2011), for the proposition that, when assessing the

¶163weight of the evidence in Miller’s motion for a new trial, the trial

¶164court was required to assess the credibility of witnesses. Miller

¶165argues that the trial court’s failure to set aside the verdict and grant

¶166him a new trial was error because of discrepancies in the record and

¶167 10 issues with witness credibility. However, the record demonstrates

¶168that the trial court in this case expressly exercised its authority to

¶169sit as a “thirteenth juror” and to consider the weight of the evidence

¶170as well as the credibility of witnesses. Compare id. at 439. “‘Whether

¶171to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is

¶172strongly against the evidence, is [an issue] that is solely in the

¶173discretion of the trial court, and the appellate courts do not have the

¶174same discretion to order new trials.’” Allen v. State, 296 Ga. 738, 741

¶175(2) (770 SE2d 625) (2015) (citations omitted).

¶176 Instead, this Court reviews the trial court’s refusal to grant a

¶177new trial under the standard established in Jackson v. Virginia,

¶178rather than “reweigh the evidence presented at trial.” Davenport v.

¶179State, 311 Ga. 667, 669-70 (1) (859 SE2d 52) (2021). See also

¶180Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010) (“‘This

¶181Court does not reweigh evidence or resolve conflicts in testimony. It

¶182was for the jury to determine the credibility of the witnesses and to

¶183resolve any conflicts or inconsistencies in the evidence.’” (citations

¶184and punctuation omitted)). As explained in Division 1, a rational

¶185 11 jury was authorized to weigh the evidence, credit the testimony of

¶186the witnesses, and to find Miller guilty of malice murder.

¶187 3. Finally, even though neither party raises a merger error on

¶188appeal, we have identified two such errors in Miller’s sentencing.

¶189See generally Dixon v. State, 302 Ga. 691, 697 (4) (808 SE2d 696)

¶190(2017) (“[A]n exercise of our discretion on direct appeal to correct a

¶191merger error that harms a defendant (but of which he has not

¶192complained) may avoid unnecessary habeas proceedings and

¶193thereby promotes judicial economy.”).

¶194 One of Miller’s convictions for possession of a firearm during

¶195commission of a felony (Counts 4 and 5), which were based on the

¶196two firearms used in the shooting, should have merged because,

¶197after proper merger of the other counts, only malice murder

¶198remained as the predicate felony. Thus, only one conviction for

¶199possession of a firearm during commission of a felony under OCGA

¶200§ 16-11-106 (b) was permitted. See Stovall v. State, 287 Ga. 415, 422-

¶20123 (696 SE2d 633) (2010) (Nahmias, J., concurring specially) (when

¶202malice murder was the only predicate felony after merger, only one

¶203 12 conviction was permitted under OCGA § 16-11-106 (b), “regardless

¶204of the number of firearms involved”). Similarly, one of the

¶205convictions for possession of a firearm by a convicted felon (Counts

¶2068 and 9) should have merged because “OCGA § 16-11-131 (b) is

¶207unambiguous and permits only one prosecution and conviction for

¶208the simultaneous possession of multiple firearms.” Coates v. State,

¶209304 Ga. 329, 331-32 (818 SE2d 622) (2018). See also Martin v. State,

¶210306 Ga. 538, 546 (7) (832 SE2d 402) (2019) (“[T]he gravamen of the

¶211offense is the general receipt, possession, or transportation of

¶212firearms by convicted felons, rather than the specific quantity of

¶213firearms received, possessed, or transported.” (citing Coates, 304 Ga.

¶214at 331)).

¶215 For these reasons, we affirm Miller’s conviction for malice

¶216murder, vacate his convictions for possession of a firearm during the

¶217commission of a felony and for possession of a firearm by a convicted

¶218felon, and remand the case for the trial court to re-sentence Miller

¶219on only one count of possession of a firearm during the commission

¶220of a felony and one count of possession of a firearm by a convicted

¶221 13 felon. See, e.g., Dukes v. State, 311 Ga. 561, 572 (4) (858 SE2d 510)

¶222(2021).

¶223 Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.

¶224 14