¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2 In the Supreme Court of Georgia
¶3 Decided: April 18, 2023
¶4 S23A0314. WILLIAMS v. THE STATE
¶5 COLVIN, Justice.
¶6 Appellant Brandon Williams was convicted of malice murder
¶7in connection with the February 2016 shooting death of Kavozia
¶8Walker. 1 On appeal, Appellant contends that (1) insufficient
¶9 1 Walker died on February 19, 2016. On May 25, 2016, a Coffee County grand jury indicted Appellant for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), and possession of a firearm by a convicted felon (Count 3). The trial court bifurcated the firearm-possession charge and held a jury trial on the murder counts from March 20 through 23, 2017. At trial, the jury found Appellant guilty of malice murder and felony murder. The firearm-possession charge was then nolle prossed. The trial court imposed a sentence of life in prison without the possibility of parole for malice murder (Count 1). The trial court did not impose a sentence on the felony murder count based on its determination that the felony murder count merged into the malice murder conviction. But see Malcolm v. State, 263 Ga. 369, 375 (5) (434 SE2d 479) (1993) (“When valid guilty verdicts are returned on both alternative counts of malice and felony murder, the alternative felony murder count is vacated by operation of [law].”). On March 31, 2017, Appellant’s trial counsel timely filed a motion for new trial, which was amended through new counsel on November 4, 2021, and June 2, 2022. The trial court held a hearing on the amended motion on June 3, 2022, and denied the motion on June 30, 2022. Appellant filed a timely notice of appeal. The case was docketed to the evidence supported his conviction; (2) the trial court erred in
¶10imposing a recidivist sentence of life imprisonment without the
¶11possibility of parole, rather than exercising its discretion to consider
¶12a life-with-parole sentence for murder; and (3) the trial court erred
¶13in merging the felony-murder count into the malice-murder count
¶14for sentencing purposes, rather than vacating the felony-murder
¶15count by operation of law. For the reasons set forth below, we affirm.
¶16 1. Appellant first asserts that the evidence presented at trial
¶17was insufficient to sustain his convictions because the State failed
¶18to prove beyond a reasonable doubt that Appellant was not justified
¶19in defending himself. We disagree.
¶20 Viewed in the light most favorable to the jury’s verdict, the
¶21evidence presented at trial showed the following. In February of
¶222016, Appellant lived in a two-bedroom apartment in the Georgia
¶23Woods Apartment complex located in Coffee County. Several other
¶24people also lived in the apartment, including Sylvia Livingston
¶25term of this Court beginning in December 2022 and submitted for a decision on the briefs. 2 (“Sylvia”), Isom Livingston (“Isom”), and Uglesias English. During
¶26the afternoon of February 19, 2016, Sylvia and English, who were
¶27romantically involved, began arguing. Appellant offered to drive
¶28English around in his black Mazda to let Sylvia “blow off a little
¶29steam.” Appellant then drove English and Isom to Alma, Georgia.
¶30When Appellant, English, and Isom returned to the apartment
¶31around 11:30 p.m., English and Sylvia began “fist fighting” and
¶32“tussling.” Sylvia told English to leave the apartment. English then
¶33walked out of the apartment and, while standing in the apartment’s
¶34breezeway, placed a phone call to his cousin, Walker. English told
¶35Walker that he needed Walker to come over to the apartment
¶36because Sylvia was “holding [his] clothes” and his “fire,” a term he
¶37used to refer to his silver 9mm pistol that Sylvia had placed in her
¶38closet.
¶39 After receiving English’s call, Walker had his girlfriend, Irene
¶40Fussell, drive him in her truck to the apartment complex. About five
¶41to ten minutes after English made the call, security footage, which
¶42was viewed by the jury, showed Walker and Fussell pulling into the
¶43 3 complex’s parking lot and English running over to meet them. The
¶44footage further showed Walker exiting the vehicle, handing an
¶45object to English, which English later identified as a black Glock 40
¶46pistol, and then following English toward the apartment building.
¶47English testified that, before they entered the apartment, English
¶48gave the gun back to Walker because he felt that he “didn’t need it.”
¶49 Upon entering the apartment, English and Sylvia continued
¶50their physical altercation, and Walker and Appellant began a heated
¶51exchange. At trial, Isom, Sylvia, and English testified that they
¶52heard Appellant ask Walker something to the effect of, “Who the F
¶53are you?” and heard Walker reply something to the effect of, “Don’t
¶54worry about who the F I am; who the F is you?” English testified
¶55that Walker did not pull out his gun while in the apartment.
¶56However, Isom and Sylvia testified that they saw Walker wave
¶57around the black Glock 40 and point it at Appellant. Isom also
¶58testified that Walker pointed the firearm in his direction as well.
¶59 Isom testified that, in an effort to defuse the situation, he told
¶60Sylvia to get English’s gun, and when she retrieved the gun from her
¶61 4 closet, Isom grabbed the gun and handed it back to English. Walker
¶62and English then began exiting the apartment. Isom, Sylvia, and
¶63English all testified that, as Walker and English were leaving,
¶64Appellant said something to the effect of, “You should have killed
¶65me when you had a chance.”
¶66 The security camera captured Walker and English leaving the
¶67apartment building and showed Appellant exiting the building a few
¶68seconds later. Appellant walked past English and Walker to his car,
¶69which was parked between the apartment complex and Fussell’s
¶70truck. Sylvia then walked out of the apartment building and began
¶71physically fighting with English again. English proceeded to pin
¶72Sylvia to the ground and Walker, who was close by, stepped in to
¶73pull English off of Sylvia. At some point during this altercation,
¶74Walker gained possession of the silver 9mm pistol from English and
¶75dropped the black Glock 40 on the ground. 2 Meanwhile, Appellant
¶76retrieved a gun from his car and placed an item, which officers later
¶77identified as a box of bullets, on top of the vehicle. Walker then led
¶78 2 Isom retrieved the Glock 40 and placed it in his pocket. 5 English through the parking lot in the direction of Fussell’s truck.
¶79As Walker pulled English past Appellant’s car, Appellant
¶80approached Walker from Walker’s left, taking a few steps before
¶81quickly raising his gun and firing at Walker’s neck. Appellant then
¶82turned his back to Walker and started walking away. Walker pulled
¶83out the silver 9mm pistol and fired a shot in Appellant’s general
¶84direction, missing him. After Walker returned fire, Appellant ran
¶85back to the apartment complex, went through the apartment, and
¶86fled into a wooded area behind the apartment complex. Meanwhile,
¶87Walker and English got into Fussell’s truck, and they drove off.
¶88 Following the shooting, Fussell drove Walker to a hospital,
¶89where he died as a result of a “gunshot wound to the left front of his
¶90neck.” Officers with the Douglas Police Department were then
¶91dispatched to the hospital and the apartment complex. When
¶92officers arrived at the apartment complex’s parking lot, they found
¶93a box of .380-caliber bullets on top of Appellant’s car and observed
¶94blood splatter in the surrounding area. After interviewing Fussell
¶95at the hospital and watching the security footage at the apartment
¶96 6 complex, officers identified Appellant as the person who shot
¶97Walker. Two months later, on April 21, 2016, Appellant was located
¶98and arrested in Hollywood, Florida.
¶99 Taking the stand in his own defense, Appellant testified that
¶100he shot Walker in self-defense. According to Appellant, Walker
¶101aimed his gun at Appellant twice while he was inside the apartment,
¶102which “spooked” Appellant and “made him mad at the same time.”
¶103Appellant claimed that he decided to leave the apartment because
¶104he was “fed up with the whole . . . situation,” and walked to his car
¶105to leave. However, upon reaching his car, Appellant did not
¶106immediately get in and drive away because he realized he had left
¶107his cell phone inside the apartment. Appellant claimed that, shortly
¶108after realizing his cell phone was still inside, he heard the
¶109commotion between English and Sylvia and saw Walker and English
¶110walking toward his car. According to Appellant, he then decided to
¶111retrieve his “weapon” from his car, and he “shot first” because he
¶112was afraid Walker may try to shoot him.
¶113 During cross-examination, Appellant admitted that he did not
¶114 7 see a gun in Walker’s hands when he pulled the trigger. Appellant
¶115also explained that he fled after the shooting because he was a felon
¶116who was not supposed to have a gun, and he was afraid that
¶117Walker’s family would retaliate. When Appellant was asked
¶118whether he told Walker that Walker should have shot him when he
¶119had the chance, Appellant claimed that he never said that and that
¶120the previous witnesses had made that up.
¶121 On appeal, Appellant contends that the trial evidence
¶122established that he acted in self-defense under OCGA § 16-3-21 (a),
¶123which provides in relevant part that a person is justified in using
¶124deadly force “if he or she reasonably believes that such force is
¶125necessary to prevent death or great bodily injury to himself . . . or to
¶126prevent the commission of a forcible felony.” According to Appellant,
¶127the trial evidence showed that he reasonably employed deadly force
¶128against Walker because he believed Walker was armed and Walker
¶129had twice committed aggravated assault against him while in the
¶130apartment. Therefore, Appellant argues, the State failed to prove
¶131beyond a reasonable doubt that Appellant was not justified in
¶132 8 defending himself.
¶133 When evaluating the sufficiency of evidence as a matter of
¶134constitutional due process, the proper standard of review is whether
¶135a rational trier of fact could have found the defendant guilty beyond
¶136a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (III)
¶137(B) (99 SCt 2781, 61 LE2d 560) (1979). This Court will uphold the
¶138jury’s verdict “[a]s long as there is some competent evidence, even if
¶139contradicted, to support each fact necessary to make out the State’s
¶140case.” Davis v. State, 312 Ga. 870, 873 (1) (866 SE2d 390) (2021)
¶141(citation and punctuation omitted). “When a defendant presents
¶142evidence that he was justified in using deadly force, the State bears
¶143the burden of disproving the defense beyond a reasonable doubt.”
¶144Birdow v. State, 305 Ga. 48, 50 (1) (823 SE2d 736) (2019). It is the
¶145role of the jury to evaluate the evidence and, when doing so, “[t]he
¶146jury is free to reject any evidence in support of a justification defense
¶147and to accept the evidence that the shooting was not done in self-
¶148defense.” Anthony v. State, 298 Ga. 827, 829 (1) (785 SE2d 277)
¶149(2016).
¶150 9 Here, the trial evidence was sufficient to authorize the jury to
¶151reject Appellant’s self-defense claim and conclude that Appellant did
¶152not reasonably believe that deadly force was necessary to defend
¶153himself against Walker. Specifically, the video recording of the
¶154incident authorized a jury to find that Appellant did not reasonably
¶155fear that Walker posed a threat of death or great bodily injury when
¶156Appellant shot him, as Walker was leading English to Fussell’s
¶157truck to leave the apartment complex when Appellant approached
¶158Walker from the side, fired his gun, and then walked away. See,
¶159e.g., Huff v. State, __ Ga. __, __ (1) (__ SE2d __) (2023) (jury
¶160authorized to reject self-defense claim where the jury could have
¶161concluded from a video recording of the shooting that the victim’s
¶162conduct “did not give rise to a reasonable belief that [the victim] was
¶163threatening to physically harm [the defendant]”); Jackson v. State,
¶164__ Ga. __, __ (1) (b) (__ SE2d __) (2023) (jury authorized to reject
¶165defendant’s self-defense claim in part because “[the] victim was not
¶166threatening Appellant in any way at the time he shot her”); Gobert
¶167v. State, 311 Ga. 305, 309 (1) (a) (857 SE2d 647) (2021) (jury
¶168 10 authorized to reject defendant’s self-defense theory where defendant
¶169shot at the victims as they fled and no one was in danger or in any
¶170imminent threat of harm at that time).
¶171 Moreover, a rational jury could have disbelieved Appellant’s
¶172claim of self-defense based on the testimony of the witnesses to the
¶173shooting and his own trial testimony. Multiple witnesses testified
¶174that, as Walker was leaving the apartment, Appellant threatened
¶175Walker by telling him something to the effect of “you should have
¶176killed me when you had the chance,” which could have led the jury
¶177to conclude that Appellant shot Walker out of retaliation rather than
¶178in self-defense. See Manning v. State, 303 Ga. 723, 724 (1) (814
¶179SE2d 730) (2018) (jury authorized to reject self-defense claim in part
¶180because “one witness heard appellant make threatening remarks to
¶181the victim just prior to seeing appellant pull a gun and commence
¶182shooting”). Although Appellant testified that he never threatened
¶183Walker, it is the jury’s role “to determine the credibility of the
¶184witnesses and to resolve any conflicts or inconsistencies in the
¶185evidence.” Moss v. State, 298 Ga. 613, 614 (1) (b) (783 SE2d 652)
¶186 11 (2016) (citation and punctuation omitted). Additionally, Appellant
¶187admitted that, at the time he shot Walker, he did not see a firearm
¶188in Walker’s possession. Therefore, even if the jury believed that
¶189Walker had previously aimed a gun at Appellant while inside the
¶190apartment, the jury was authorized to find that Appellant did not
¶191reasonably believe that Walker posed any imminent threat of harm
¶192to him when he shot Walker. See Davis, 312 Ga. at 873 (1) (jury
¶193authorized to reject self-defense claim in part because “[defendant]
¶194admitted that he did not see [the victim] pull a gun during the
¶195incident”). Thus, given the evidence presented, the jury was
¶196authorized to reject Appellant’s claim that he shot Walker in self-
¶197defense and to find him guilty beyond a reasonable doubt of malice
¶198murder.
¶199 2. Appellant next contends that the trial court erred in
¶200sentencing him to life in prison without the possibility of parole.
¶201According to Appellant, although OCGA § 16-5-1 (e) (1)3 gave the
¶202 3 OCGA § 16-5-1 (e) (1) provides that “[a] person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.” 12 court discretion to consider sentencing him to life with the
¶203possibility of parole, the court failed to exercise that discretion
¶204because it incorrectly concluded that he was a recidivist who was
¶205ineligible for parole under OCGA § 17-10-7.4 Appellant further
¶206argues that OCGA § 17-10-7 is inapplicable because he was not
¶207previously convicted of a serious violent felony, as required under
¶208section 17-10-7 (b) (2), and because section 17-10-7 (c) does not apply
¶209to murder convictions. 5 However, we need not decide whether
¶210sentencing Appellant as a recidivist would have been improper
¶211 4OCGA § 17-10-7 governs the punishment and parole eligibility of repeat offenders. Pursuant to OCGA § 17-10-7 (b) (2), any person who has previously been convicted of a serious violent felony and is convicted of another serious violent felony for which he is not sentenced to death, “shall be sentenced to imprisonment for life without parole.” The legislature has defined the following as serious violent felonies: murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. See OCGA § 17-10-6.1 (a). Pursuant to OCGA § 17-10-7 (c), any person with three prior felony convictions who is subsequently convicted of a fourth felony offense shall “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.”
¶212 5We note that, although OCGA § 17-10-7 (c) previously stated that it did not apply to fourth-time felony offenders being sentenced for a capital felony, “in 2010 the General Assembly amended OCGA § 17-10-7 (c) to remove the exception for capital felonies.” Kimbrough v. State, 300 Ga. 516, 517 n.2 (2) (796 SE2d 694) (2017). 13 because Appellant has not shown he was sentenced as a recidivist.
¶213 The record shows that prior to trial, the State filed a notice of
¶214intent to seek recidivist punishment of Appellant based on his 2013
¶215convictions for possession of cocaine and various traffic offenses,
¶2162016 conviction for possession of a firearm by a convicted felon, and
¶2172019 convictions for aggravated assault and burglary. At the
¶218sentencing hearing, the State argued that the court was required to
¶219impose a sentence of life in prison without the possibility of parole
¶220because of Appellant’s prior convictions, and defense counsel did not
¶221object. The trial court then orally pronounced it was sentencing
¶222Appellant “[to] serve the balance of [his] natural life in prison
¶223without the possibility of parole,” without further explanation.
¶224Subsequently, the trial court entered its final written sentence,
¶225which did not reflect that Appellant was sentenced as a recidivist.
¶226 Appellant’s claim that the trial court failed to exercise its
¶227sentencing discretion because it incorrectly concluded that
¶228Appellant was a recidivist is without merit. A trial court has
¶229discretion to impose a sentence of life without parole for murder
¶230 14 regardless of whether the defendant is a recidivist. See OCGA § 16-
¶2315-1 (e) (1). Here, the record does not show that the trial court’s
¶232sentence was anything other than an exercise of that discretion.
¶233Although there was some discussion of recidivism at the sentencing
¶234hearing, neither the trial court’s oral sentence nor its final
¶235sentencing order indicated that Appellant was sentenced as a
¶236recidivist. Accordingly, because Appellant has not shown that the
¶237trial court failed to exercise its discretion in imposing a life-without-
¶238parole sentence for Appellant’s malice murder conviction, Appellant
¶239has not shown that the sentence was improper. See Boyd v.
¶240Washington, 293 Ga. 823, 824 (293 SE2d 823) (2013) (concluding
¶241that the trial court did not sentence the defendant as a recidivist,
¶242despite indicating at one of the sentencing hearings that it would
¶243impose a recidivist sentence, because the court did not mention that
¶244the defendant was being sentenced as a recidivist at the final
¶245sentencing hearing, the final written sentence did not state that the
¶246defendant was being sentenced as a recidivist, and the sentence
¶247imposed was appropriate).
¶248 15 3. Finally, Appellant claims that the trial court erred in
¶249merging Appellant’s felony-murder count into the malice-murder
¶250count, rather than vacating the felony-murder count by operation of
¶251law. The State concedes this point, and we agree. See Favors v.
¶252State, 296 Ga. 842, 847-848 (5) (770 SE2d 855) (2015) (“When [a]
¶253valid guilty verdict is returned on both malice murder and felony
¶254murder of the same victim, [a] defendant should be sentenced for
¶255malice murder, and [the] alternative felony murder verdict[]
¶256stand[s] vacated by operation of law.”). Nevertheless, the trial
¶257court’s incorrect nomenclature did not affect Appellant’s sentence
¶258because the trial court only imposed a sentence for the malice-
¶259murder count. “As there is no sentencing error to correct, we simply
¶260note that the felony murder verdict [was] vacated by operation of
¶261law, rather than ‘merged’ as the trial court stated,” Manner v. State,
¶262302 Ga. 877, 891 (IV) (808 SE2d 681) (2017), and we affirm
¶263Appellant’s sentence.
¶264 Judgment affirmed. All the Justices concur.
¶265 16