Miller v. State

864 S.E.2d 451

MILLER

v.The STATE.

S21A1245

Supreme Court of Georgia.

Decided: October 19, 2021

Larry Michael Johnson, 408 West Washington Avenue, Nashville, Georgia 31639, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Bradford Lee Rigby, District Attorney, Cordele Judicial Circuit District Attorney's Office, PO Box 5510, Cordele, Georgia 31010, for Appellee.

McMillian, Justice.

Keontay Miller appeals his convictions for malice murder and other crimes arising out of the shooting death of Tellis Fort.¹ Miller asserts on appeal that the evidence presented at his trial was insufficient as a matter of constitutional due process to support the verdict and that there were direct and irreconcilable conflicts in the evidence and contradictions between the testimonies of witnesses at trial, which require a new trial. These contentions are without merit although we conclude that the trial court committed two merger errors at sentencing.

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 dispatcher that her son had witnessed two "boys" in white clothing running down the street. Another witness testified about hearing the sound of sirens and then seeing two males – one wearing red shorts and a white shirt and the other wearing blue jeans and a white shirt – running away. This witness testified that one of the males was about 6 feet, 2 inches tall, and the other was 5 feet, 9 inches tall. These descriptions were consistent with Miller, who stands 5 feet, 9 inches, and his co-defendant, Conardo Dennard, who stands 6 feet, 1 inch.

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 with a magazine. The crime scene investigator also found a .380-caliber cartridge case next to the front passenger side of Fort's vehicle.

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 that 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 pinging off cell towers around the area where Fort's house was located from 9:18 to 10:17 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 presented evidence that Miller's nickname is "Red.") Miller's phone had no activity from 8:05 p.m. to 10:31 p.m., but made numerous calls from 10:31 p.m. until 11:10 p.m. – all of which pinged off cell towers in the city of Cordele, in a radius where Fort's house is located, and not off the tower near Jackson's home. Miller's phone made a call at 1:19 in the early morning of May 15, which did ping off the phone tower near Jackson's home.

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 and 11:27. After receiving the second call, this witness testified 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, Miller and Dennard left town and could not be located by the police. On June 3, officers from the Camden County Sheriff's Office found the two men in a motel room in St. Marys, Georgia, but they were not registered under either of their names. Both men were placed under arrest. Miller and Dennard were then incarcerated in the Crisp County jail. Miller's cellmate subsequently gave investigators two letters written on notebook paper, which had Miller's and Dennard's fingerprints on them. One read, in part, "Peaches house around 10:25." The other, in relevant part, read:

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 stories 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 appears to be the butt of a semi-automatic pistol sticking out of his pocket. The jury also watched a video of Miller and Dennard, posted to Dennard's Facebook page on May 8, 2015, in which Dennard displays what he calls his "pocket rocket," which appeared to be a semi-automatic small-caliber pistol.

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 had 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 malice 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 S.E.2d 317 (2020). Thus, our review of the sufficiency of the evidence presented at trial is limited to the malice murder count. See id. "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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 OCGA § 16-5-1, the State is required to prove malice beyond a reasonable doubt; however, "[t]he malice necessary to establish malice murder may be formed in an instant, as long as it is present at the time of the killing." Benton v. State , 305 Ga. 242, 244 (1) (a), 824 S.E.2d 322 (2019). It is for the jury to determine, from the facts and circumstances presented in evidence, whether a killing is malicious. See id.

One witness walking past Fort's house around the time of the murder saw a person standing behind the house, waiting, and then retreating from view. The State also presented multiple witnesses who testified about seeing two men, matching the description of Miller and Dennard, fleeing the scene of the shooting where Fort was lying on the ground covered in blood from his gunshot wound. Cell phone...