WHEELER v. THE STATE.
S22A1236
In the Supreme Court of Georgia
Decided: August 23, 2022
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.
Eric Wheeler appeals his convictions for murder, aggravated assault, and other crimes arising from the fatal shooting of Sonya Corbett and non-fatal shooting of Albert Carter.1
The trial evidence showed that Wheeler was Corbett‘s abusive romantic partner. Following a violent incident on April 4, 2003, Corbett ended their relationship. Because Corbett remained afraid of Wheeler, family members often stayed at her home.
On the night of Corbett‘s murder, Carter — Corbett‘s cousin — and Carter‘s romantic partner, Lakeisha Hicks, were at Corbett‘s home and were in an upstairs bedroom when Hicks heard several large “booms.” Hicks told Carter to get out of bed, at which point they heard Wheeler threaten Corbett and yell, “I‘m going to kill all of you all.” When Hicks heard someone running up the stairs, she leapt from a second-story window, breaking her feet in the fall. Meanwhile, Carter saw Wheeler carrying Corbett up the stairs. Wheeler started shooting at Carter, hitting Carter in the leg as Carter also jumped out of the window.
Wheeler testified at trial and admitted that he shot Corbett repeatedly, pausing between firing to berate her about how it was her fault he was shooting her. Corbett suffered three gunshot wounds and died. As Wheeler drove away from the home, he shot the fleeing Carter five times from behind.
Wheeler claimed in this trial testimony that he had become angry and kicked the door in after Corbett refused him entry. He testified that Corbett pointed a gun at him while Carter brandished a knife. Wheeler claimed that he and Corbett scuffled and he took the gun from her. He testified that he shot Carter because Carter was urging Corbett to kill him. By the time he shot Corbett, Wheeler said, he had “lost it.”
While police were searching for Wheeler following Corbett‘s death, a detective contacted Wheeler‘s sister, who directed police to the apartment of Tamara Burley, one of Wheeler‘s girlfriends. When police arrived, Burley ran to them, saying, “He‘s in there. Get him out.” Five minutes later, Wheeler exited; police ordered him onto the ground and handcuffed him. Burley gave police consent to search her apartment, and during the search, police recovered a 9mm handgun in a fireplace, an empty box of 9mm ammunition, and a black garbage bag containing blood-stained clothing. Police did not obtain consent for the search from Wheeler, who had been placed in the back of a police vehicle.
Prior to trial, Wheeler filed a motion to suppress this evidence. The trial court held a hearing midtrial, outside the jury‘s presence. According to police testimony, after Wheeler was taken into custody, Burley signed a consent form authorizing officers to search her apartment. Police testified that Burley told them she was “the legal resident” of the home, and that although Wheeler had lived there previously and refused to return his key, she had kicked him out months ago and removed all of his belongings. But Burley testified in the hearing that at the time of the search, Wheeler still lived in the apartment, paid rent, had a key, and kept clothing there.
Wheeler argued that he had an expectation of privacy in the apartment, especially in the
1. On appeal, Wheeler challenges the trial court‘s denial of the motion to suppress. We need not decide whether the trial court erred, as Wheeler‘s admission that he shot Corbett and Carter rendered any error harmless.
Only harmful evidentiary errors warrant reversal. See
Wheeler argues that “absent the gun and the bloody clothes, there was no physical evidence tying him to the murder.” But physical evidence tying Wheeler to the crimes would have been merely cumulative of his admission that he shot the victims. And the evidence Wheeler sought to suppress had no bearing on his claim that he shot the victims in self-defense, and thus it is highly probable that its admission did not contribute to the verdicts. Any error in admitting the evidence was therefore harmless.
2. Although not raised by the parties on the appeal, the trial court‘s sentencing orders reflect that Counts 5 and 8 were merged into other counts, but also had 20-year sentences imposed on each of them. If merger as to either of those counts was proper, the sentence on that count would be void. See Nazario v. State, 293 Ga. 480, 480 (746 SE2d 109) (2013) (“A conviction that merges with another conviction is void — a nullity — and a sentence imposed on such a void conviction is illegal and will be vacated if noticed by this Court . . . .“). But neither Count 5 nor Count 8 merged as a matter of law; if merger was appropriate, it would be as a matter of fact. See Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344) (2020) (When there is “no evidence to suggest the occurrence of an aggravated assault independent of the act which caused the victim‘s death,” a jury‘s guilty verdict on the aggravated assault merges as a matter of fact with the malice murder verdict for sentencing purposes. (citation and punctuation omitted)); State v. Owen, 312 Ga. 212, 224 (6) (862 SE2d 125) (2021) (“The aggravated assault convictions do not merge under the circumstances of this case.“). And the trial court made no findings on that point, so we cannot determine whether merger was proper. What is clear is that Counts 5 and 8 may not merge into other counts and simultaneously have a 20-year sentence imposed on them. Accordingly, we vacate both the merger of and the sentences on Counts 5 and 8 and remand for the trial court to determine the appropriate dispositions.
Judgment affirmed in part and vacated in part, and case remanded. All the Justices concur.