Marshall v. State

309 Ga. 698

848 S.E.2d 389

MARSHALL

v.The STATE.

S20A0697

Supreme Court of Georgia.

Decided: September 8, 2020

Jacob Dennis Rhein, Law Offices of Jacob D. Rhein, 265 South Culver Street, Lawrenceville, Georgia 30046, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Mark Samuel Lindemann, Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Attorneys for the Appellee.

McMillian, Justice.

Appellant Terry Marshall appeals his convictions for the malice murder of Marshal Tucker, the attempted murder of Latonia Patterson, and other related crimes.¹ Marshall contends that the trial court improperly sentenced him as a three-time recidivist, that the trial court plainly erred by relying on two of his out-of-state convictions in sentencing him as a recidivist, and that the trial court committed two merger errors at sentencing. Because we conclude that the trial court committed several merger errors, we vacate Marshall's conviction for aggravated assault of one victim. Otherwise, we affirm his convictions.

1. Viewed in the light most favorable to the jury's verdict, the evidence at trial showed that Marshall and Patterson, who were both from the small town of Valley, Alabama, dated in the early 1990s and then rekindled their relationship in March 2013. In April 2014, Patterson ended the relationship because she was tired of Marshall's "anger" and "distrust." Shortly before their break-up, Marshall gave Patterson $200 as a gift; after the break-up, he began threatening her and demanded that she repay the money "or else." Marshall continued threatening Patterson over the phone and through her family, and she eventually had her cousin deliver repayment to him. In the meantime, Patterson met Tucker, and they began dating.

Around 11:30 p.m. on May 19, Tucker visited Patterson at her Fairburn, Georgia apartment. Patterson heard Tucker's "signature knock" at her door, and she opened the door to let him in. Upon opening the door, Patterson saw Marshall, who was holding a shotgun, running up the stairs behind Tucker. Patterson pulled Tucker into the apartment and bolted the door, but Marshall kicked in the door and shot Tucker in the head. After Patterson unsuccessfully tried to escape by breaking through the screen enclosure of the apartment's balcony, Marshall dragged her back into the apartment as she attempted to fight him off. Once inside, Marshall used his hand to hold Patterson's head against the coffee table while he reloaded the shotgun. Patterson continued fighting Marshall until she heard a loud boom and felt a pain as she was shot in the neck. Patterson noticed that Marshall had shot himself in the hand, and she played dead until he left the apartment. Several of Patterson's neighbors observed Marshall leaving the apartment, and one noticed that Marshall was cradling his hand. Marshall left a trail of blood down the stairs outside Patterson's apartment. When first responders arrived at the apartment, Patterson immediately identified Marshall as the assailant. Tucker was declared dead at the scene, and the medical examiner later identified his cause of death as a gunshot to the head.

Fairburn Police Department officers were dispatched to Marshall's Alabama home. Marshall's car was in the driveway, and officers noticed blood inside the car, as well as on the steps leading up to his front door. Marshall was not at home. Sometime later, Marshall turned himself in to police. He was taken to the hospital for treatment of his wounded hand, and officers heard Marshall tell doctors that the injury was caused by a shotgun. The gun was never recovered.

Blood swabs taken from Patterson's apartment were later matched to Marshall, and cell phone records showed that Marshall was in the vicinity of Patterson's apartment on the night of the shootings. At trial, Marshall stipulated to being a convicted felon.

Although not enumerated as error by Marshall, consistent with our customary practice in murder cases, we have reviewed the record and conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Marshall was guilty of the crimes of which he was found guilty.² See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. We turn first to various merger errors, two of which have been enumerated as error by Marshall. After Marshall was found guilty of, among other counts, malice murder and three counts of felony murder, he was sentenced for malice murder, and the felony murder counts were vacated by operation of law. Nevertheless, the trial court purported to merge the predicate felony counts of burglary, aggravated assault, and felon-in-possession (Counts 6, 9, and 12) into the vacated felony murder counts. Although Marshall does not contest these mergers on appeal, the trial court erred in merging these counts "inasmuch as there is no felony murder count into which the underlying felony can merge, since the felony murder conviction has been statutorily vacated." West v. State , 305 Ga. 467, 470 (1) (a) (ii), 826 S.E.2d 64 (2019) (citation and punctuation omitted). Instead, the felon-in-possession count (Count 12) should have merged into the possession of a firearm by a convicted felon during the commission of another felony count (Count 13), and the aggravated assault (Count 6) should have merged into the malice murder conviction, not the vacated felony murder count. See Atkinson v. State , 301 Ga. 518, 521 (2), 801 S.E.2d 833 (2017) ("In this regard, rather than purporting to merge the possession of a firearm by a convicted felon count into the felony murder and malice murder counts, the trial court should have instead merged the felon-in-possession count into the count relating to the use of a firearm by a convicted felon during the commission of another felony."); Manner v. State , 302 Ga. 877, 891 (IV), 808 S.E.2d 681 (2017) ("The court properly merged the aggravated assault into the malice murder verdict, as those two counts of the indictment were both premised on the act of shooting [the victim]."). However, because these merger errors make no practical difference and the State has not raised these issues by cross-appeal, we decline to correct them here. See Dixon v. State , 302 Ga. 691, 698 (4), 808 S.E.2d 696 (2017).

We note a different issue with respect to the burglary count. In Dixon , we held that "when a merger error benefits a defendant and the State fails to raise it by cross-appeal, we ... will exercise our discretion to correct the error upon our own initiative ... in exceptional circumstances." Id. at 698 (4), 808 S.E.2d 696. Although the State did not raise this issue on cross-appeal, the State points out in its appellate brief that in the order denying Marshall's motion for new trial, the trial court concluded that it had improperly merged Marshall's conviction for burglary under Count 9 with the vacated felony murder conviction in Count 4 and set a date for resentencing. See Favors v. State , 296 Ga. 842, 848 (5), 770 S.E.2d 855 (2015) ("The burglary count ... does not merge with malice murder as a matter of law, because each crime by definition requires proof of an element that the other does not."). However, before the resentencing hearing could take place, Marshall filed a notice of appeal divesting the trial court of jurisdiction. Although we decline to exercise our discretion under these circumstances to correct the merger error, nothing in this opinion should be read to preclude the trial court from doing so upon return of the remittitur. See OCGA § 17-10-1 (f) (sentencing court has jurisdiction to modify or vacate any sentence "within 120 days after receipt by the ... court of the remittitur upon affirmance of the judgment after direct appeal.").

Additionally, Marshall argues, and the State concedes, that the possession of a firearm during the commission of a felony count (Count 11) should have merged into the possession of a firearm by a convicted felon during the commission of another felony count (Count 13). See Atkinson , 301 Ga. at 521 (2), 801 S.E.2d 833. We agree, and we therefore vacate Marshall's conviction and five-year sentence for possession of a firearm during the commission of a felony (Count 11).

Finally, Marshall asserts that the trial court erred by merging the aggravated battery count into the attempted murder count because Zamudio v. State , 332 Ga. App. 37, 48 (7), 771 S.E.2d 733 (2015), requires the opposite – that the attempted murder count merge into the aggravated battery count. However, Zamudio was recently overruled by our decision in Priester v. State , ––– Ga. ––––, –––– (3), 845 S.E.2d 683, 688 (2020), which held that "aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct[,]" as they are here.³ Accordingly, we conclude that Marshall was properly sentenced in this regard.

3. We turn next to Marshall's claim that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c). The record shows that before trial, the State filed a notice of intent to seek recidivist punishment of Marshall pursuant to OCGA §§ 17-10-7 (a) and (c) based on four prior out-of-state felony convictions. The State also filed a separate notice of intent to seek a sentence of life without the possibility of parole in the event Marshall was found guilty of malice murder or felony murder. At the presentence hearing, after the State tendered into evidence certified copies of four Alabama felony convictions, trial counsel conceded...