Miller v. StateMiller v. State
Keontay Miller appeals his convictions for malice murder and other crimes arising out of the shooting death of Tellis Fort.1 Miller
Viewed in the light most favorable to the jury‘s verdict, the evidence showed that on the evening of May 14, 2015, Fort and a friend worked out together at a local gym. Fort‘s friend testified that he left Fort at the gym around 9:30 p.m. At around the same time, a witness walking past Fort‘s house saw a person standing behind the house “peek in and peek out,” and then retreat from view. About 40 minutes later, at 10:12 p.m., police received a call from Fort‘s neighbor, who reported that she and her adult son heard multiple gun shots fired nearby. Fort‘s neighbor also told the 911 dispаtcher that her son had witnessed two “boys” in white clothing running down the street. Another witness testified about hearing the sound
The responding officer arrived just minutes after the 911 call was made and discovered Fort lying on the ground, next to the driver‘s side door of his vehicle near his house. The officer testified that Fort had a gunshot wound and was covered in blood, Fort‘s wallet and keys were found next to his body, and the pocket of his shorts was turned inside out. Fort died subsequently, and the medical examiner testified that the cause of Fort‘s death was a gunshot wound to his chest.
Police canvassed the area and discovered two small-caliber pistols stacked on top of each other and hidden in a yard behind Fort‘s house. One was a .25-caliber semi-automatic pistol with a magazine, and the other was a .380-caliber semi-automatic pistol
On May 15, the morning after Fort‘s death, Miller‘s mother brought Miller and Dennard to the Cordele Police Department because she had heard Miller‘s name mentioned in connection with the shooting and wanted to “clear his name.” Police interviewed Miller and Dennard and obtained cell phone numbers and DNA samples from both men. Miller and Dennard individually told police thаt on the previous night they were together at the home of their friend Bertha Jackson, also known as “Peaches,” around 9:00 p.m., and that they stayed at Jackson‘s mobile home for the remainder of the night.
However, phone records showed that Dennard‘s cell phone was рinging off cell towers around the area where Fort‘s house was located from 9:18 p.m. to 10:17 p.m. on the night of the shooting. At 11:08 p.m., Dennard‘s number sent a text message to Jackson‘s phone that read: “Dis red come pick us up please man.” (The State
An acquaintance of the co-defendants testified that, on the night of the murder, he received two phone calls from Dennard‘s number – at 11:18 p.m. and 11:27 p.m. After receiving the second call, this witness tеstified that he drove Miller and Dennard from the vicinity of the murder to Jackson‘s home. A witness who was living with Jackson during this time testified that Miller and Dennard arrived around 1:30 a.m. on May 15; Miller was wearing shorts and a white t-shirt, and Dennard was wearing blue jeans and a white t-shirt.
After giving statements to the police on May 15, Millеr and Dennard left town and could not be located by the police. On June 3,
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.
The State argued that, taken in tandem, the letters were evidence of the pair attempting to get their stоries straight about the night of Fort‘s murder and to explain why Miller‘s DNA would be on the murder weapon.
Additionally, the State submitted into evidence screenshots taken from Miller‘s Facebook page. One screenshot featured a photo, posted on May 5, 2015, showing Miller with what appeаrs to be the
The jury heard testimony that the bullet taken from Fort‘s autopsy and the cartridge case found near his vehicle were both fired from the .380 semi-automatic pistol found hidden near his house. The State‘s expert in forensic biology testified that she hаd determined to a “scientific certainty” that Miller‘s DNA profile was present on both the .25-caliber gun and the .380-caliber gun.
1. In his first enumeration of error, Miller argues that the State failed to present sufficient evidence to support each element of the crimes of malicе murder, aggravated assault, and felony murder. However, Miller was not convicted or sentenced on the aggravated assault count or the felony murder count, so “his claims as to the sufficiency of the evidence supporting those counts are moot.” Blackshear v. State, 309 Ga. 479, 482 (1) (847 SE2d 317) (2020).
As to the malice murder count, Miller contends that the State failed to present evidence of malice aforethought. To convict someone of malice murder under
One witness walking past Fоrt‘s house around the time of the murder saw a person standing behind the house, waiting, and then
2. In a related enumeration of error, Miller contends that conflicts in the evidence and in witness testimony warrant reversal of the trial court‘s denial of Miller‘s motion for a new trial.
Miller relies on Alvelo v. State, 288 Ga. 437, 438-39 (1) (704 SE2d 787) (2011), for the proposition that, when assessing the weight of the evidence in Miller‘s motion for a new trial, the trial court was required to assess the сredibility of witnesses. Miller argues that the trial court‘s failure to set aside the verdict and grant him a new trial was error because of discrepancies in the record and
Instead, this Court reviews the trial court‘s refusal to grant a new trial under the standard established in Jackson v. Virginia, rather than “reweigh the evidence presented at trial.” Davenport v. State, 311 Ga. 667, 669-70 (1) (859 SE2d 52) (2021). See also Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010) (“‘This Court does not reweigh evidence or resolve conflicts in testimony. It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.‘” (citations and punctuation omitted)). As explained in Division 1, a rational
3. Finally, even though neither party raises a merger error on appeal, we have identified two such errors in Miller‘s sentencing. See generally Dixon v. State, 302 Ga. 691, 697 (4) (808 SE2d 696) (2017) (“[A]n exercise of our discretion on direct appeal to correct a merger error that harms a defendant (but of which he has not complained) may avoid unnecessary habeas proceedings and thereby promotes judicial economy.“).
One of Miller‘s convictions for possession of a firearm during commission of a felony (Counts 4 and 5), which were based on the two firearms used in the shooting, should have merged because, after proper merger of the other counts, only malice murder remained as the predicate felony. Thus, only one conviction for possession of a firearm during commission of a felony under
For these reasons, we affirm Miller‘s conviction for mаlice murder, vacate his convictions for possession of a firearm during the commission of a felony and for possession of a firearm by a convicted felon, and remand the case for the trial court to re-sentence Miller on only one count of possessiоn of a firearm during the commission of a felony and one count of possession of a firearm by a convicted
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
Notes
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 pоssibility 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.