312 Ga. 19 FINAL COPY
S21A0409. HEADE v. THE STATE.
LAGRUA, Justice.
A Gwinnett County jury found Appellant Demetrius Heade
guilty of malice murder and other crimes in connection with the
shooting death of Michael Harvey. 1 On appeal, Appellant contends
that (1) the trial court erred in ruling that evidence of Appellant’s
prior acts was admissible; (2) trial counsel provided ineffective
assistance by conceding the admissibility of one of the acts; and (3)
these multiple errors cumulatively prejudiced Appellant. We
1 The crimes occurred on November 10, 2016. A Gwinnett County grand
jury indicted Appellant and his co-defendant, Tilisha Tate, for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. In May 2019, the jury found Appellant guilty of all charges. The trial court sentenced Appellant to serve life in prison without parole for malice murder, life in prison for felony murder, twenty years for aggravated assault to run concurrently with malice murder, and five years for the firearm possession to run concurrently with malice murder. Appellant filed a motion for new trial on May 20, 2019, which he amended through new counsel on October 7, 2019. Following an evidentiary hearing, on September 24, 2020, the trial court denied Appellant’s amended motion for new trial. Appellant then timely filed a notice of appeal on September 30, 2020. This Court docketed Appellant’s case to the term beginning in December 2020, and the case has been submitted for a decision on the briefs. discern no reversible error on these grounds, but we have found two
sentencing errors with regard to his convictions for felony murder
and aggravated assault. For the reasons stated below, we affirm his
convictions in part and vacate in part.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed that on November 10, 2016, at
around 7:30 p.m., Appellant and Tilisha Tate, Appellant’s girlfriend
and co-defendant at trial, visited a Citgo gas station located in
Gwinnett County. The two were traveling in a stolen, gold 1996
Honda Odyssey minivan and were meeting with a man who had
agreed to purchase food for them because they had run out of money.
After accompanying this man into the gas station to buy food,
Appellant and Tate left the gas station in the gold minivan;
Appellant was driving, and Tate was lying down in the back seat.
As they were traveling on Button Gwinnett Drive, the victim,
Michael Harvey, attempted to pass the minivan in his truck and
accidentally struck the front driver side area of the minivan. The
impact startled and awoke Tate, and when she sat up, she saw
2 Harvey’s truck enter a ditch and hit a pole, after which Harvey
exited his truck and started running toward the minivan. According
to Tate, Appellant then picked up a rifle he had in the minivan and
shot Harvey from the driver’s seat, and Harvey “hit . . . the ground.”
Appellant tried to drive away from the scene but was unable to do
so because one of the minivan’s tires was flat. Appellant and Tate
abandoned the minivan and fled toward some woods beside the road.
Tate had difficulty keeping up, having recently been shot in the leg
by Appellant.2 Appellant threw the rifle in a ditch, and the two
walked to the Las Palmas Apartments, a nearby apartment
complex. About an hour later, Appellant and Tate got a ride from
another man to the same Citgo gas station where the man replaced
the food Appellant and Tate had left in the minivan. Appellant and
Tate then stayed overnight with some friends at the apartment
complex.
Officers responded to the shooting around 8:30 p.m. They
found Harvey lying in the roadway, apparently lifeless, with a bullet
2 We will address this incident in more detail in Division 2 (a) below.
3 wound to his chest. Officers also observed a black truck wrecked on
the opposite side of the road and an older model minivan about 80
yards away from the scene with a detached bumper and a single
bullet hole through the driver’s side window. A few yards away from
the minivan, officers recovered a loaded Winchester .30-30 lever-
action rifle from a drainage ditch. When officers cycled the lever,
the rifle ejected an empty shell casing.3 Harvey’s cause of death was
determined to be a gunshot wound to the torso, and a GBI ballistics
test concluded that bullet fragments recovered from Harvey’s body
were fired from the same rifle found at the scene.
Officers discovered that the minivan at the scene had been
stolen from Mobile, Alabama on November 2, 2016. Officers testified
that they called the police in Mobile, who advised that they were
investigating the November 2 theft of the minivan and the murder
of the minivan’s owner, Lavester Brennan. Gwinnett County officers
learned that Appellant and Tate were suspects in the Brennan
3 At trial, one of the officers testified that when this type of weapon is
fired, the used shell casing remains in the chamber until the lever is cycled. 4 murder and had used Brennan’s credit card in and around the
Mobile area after Brennan’s murder.
Officers obtained a search warrant for the minivan, and inside
they found male and female clothing, a box of ammunition, and
multiple .30-30 rounds. Appellant’s fingerprints were found on the
windows, as well as on items inside the minivan. Officers found
receipts from Subway and Little Caesar’s restaurants. Appellant
was seen in surveillance video from the Little Caesar’s, and both
Appellant and Tate were seen in surveillance video from the
Subway. Plastic bags and food products from a Citgo gas station
were also found in the minivan. Officers went to the Citgo gas
station near the accident site, and surveillance video from that gas
station showed that Appellant and Tate made multiple visits to the
gas station before and after the murder. In one video, the two were
depicted leaving the gas station, entering a gold minivan, and
departing toward the Las Palmas Apartments.
On November 11, the day after the shooting, officers returned
to the Citgo gas station. At about 5:30 p.m., Appellant and Tate
5 visited the gas station, and officers apprehended them and took
them into custody. Officers then interviewed Appellant and Tate
and learned that neither had prior connections to Harvey. Tate told
police that neither she nor Appellant were at the scene of the
shooting, and that she did not know what was going on. She denied
being involved in Harvey’s death and denied that she was in the van
at the time of the shooting.
Tate was extradited back to Mobile in December 2016. On
December 5, 2016, Gwinnett County officers investigating the
murder of Harvey traveled to Mobile and interviewed Tate again.
At that time, Tate confessed to being present when Appellant shot
Brennan in Mobile on November 2, 2016, when Brennan’s minivan
was stolen, as well as on November 10 when Appellant shot Harvey
in Gwinnett County. However, Tate denied knowing that Appellant
was planning to shoot Harvey. Tate indicated that she lied in her
previous interview because she was scared of Appellant.
2. At a pretrial motions hearing, the trial court ruled that the
State could present evidence at trial, over Appellant’s objection,
6 concerning the following three prior acts of Appellant: (1) an alleged
assault on Tate in Mobile (“the Tate assault”); (2) the alleged murder
of Brennan in Mobile (“the Brennan murder”); and (3) an alleged
armed robbery of Heather Crane in Gwinnett County (“the Crane
robbery”). The trial court concluded that the probative value of this
evidence outweighed any prejudicial effect and that the evidence
was admissible to show motive, opportunity, intent, knowledge, and
identity, as well as prior difficulties between Tate and Appellant.
See OCGA §§ 24-4-403 (“Rule 403”) and 24-4-404 (b) (“Rule 404 (b)”).
At trial, the jury heard testimony relating to the Tate assault, the
Brennan murder, and the Crane robbery, which showed the
following:
(a) The Tate Assault.
According to Tate, in the summer of 2016, Appellant and Tate
started a romantic relationship in Mobile. During this time period,
Tate struggled with drug and alcohol addiction, and she regularly
engaged in prostitution in exchange for money and drugs. According
to Tate, Appellant became possessive of Tate and angry about Tate’s
7 prostitution, but he allowed her to perform one “trick” a day so they
would have enough money to buy food and other necessities. After
Appellant became violent with Tate, Tate ended the relationship
and went to stay with friends. Appellant was upset and angry that
Tate left him. On October 19, 2016, Appellant confronted Tate at
one of her friend’s houses saying, “[W]e can do this the easy way or
the hard way.” Tate said she did not care “which way you want to
do it,” and Appellant pulled out a handgun and shot Tate in the leg.
Tate was transported by emergency personnel to a hospital for
treatment, where her leg was placed in a splint and, later, a red cast.
While Tate was in the hospital, she reported the shooting to law
enforcement officers. After Tate’s release from the hospital, she
stayed briefly with a friend, but she soon resumed her relationship
with Appellant.
(b) The Brennan Murder.
According to Tate, on November 2, 2016, Tate and Appellant
were at a house in Mobile when Lavester Brennan drove by in his
gold minivan. According to Tate, she regularly had sex with
8 Brennan in exchange for money and drugs, and she stopped him and
asked him to take her to get something to eat. Brennan then drove
Tate to get some food. When Tate returned, Appellant was angry
because he did not know why Tate left with Brennan. Tate met with
Brennan again later the same day to use drugs at Brennan’s house.
After Brennan and Tate got into an argument, Brennan began to
give Tate a ride back to where she was staying. While they were
stopped at a corner by Brennan’s house, Appellant pulled up beside
Brennan’s minivan in a truck. Appellant got out of the truck and
entered the minivan behind Tate, who was seated in the front
passenger seat. Tate got out of the minivan and heard a gunshot.
Appellant grabbed Tate’s collar and forced her back into the front
passenger seat of the minivan. Appellant then dragged Brennan out
of the driver’s seat and onto the street and drove away in the
minivan. Tate testified that she did not run or scream for help out
of fear of Appellant. Brennan died several days later from a gunshot
wound to the chest.
According to Tate, Appellant and Tate drove to Appellant’s
9 cousin’s house, where Appellant picked up a .30-30 “shotgun.” While
they were at the cousin’s house, Appellant cut the red cast off Tate’s
leg with a knife. Tate testified that she needed the cast and could
not put any pressure on her foot, but Appellant demanded they
remove it, stating, “[T]hey was going to be looking for somebody with
a red cast.” Appellant and Tate then drove around the Mobile area
in the minivan and made purchases, including shoes, televisions,
cell phones, and beauty products, at several stores using Brennan’s
credit card, which had been left in the minivan.4 When they tried to
purchase another television at Walmart, the card was declined. At
that point, Appellant and Tate had very little money left, and they
left the area and drove to Gwinnett County in Brennan’s minivan.
Around this time, Tate used a cell phone she had purchased to find
news articles about what happened to Brennan in Mobile, but could
not find anything. The two arrived at the Peachtree Inn and Suites
in Gwinnett County on or about November 7, 2016, and slept in the
4 The activity on Brennan’s credit card assisted authorities in identifying
Appellant and Tate as the suspects in Brennan’s murder. 10 minivan for a couple of days. They also visited and stayed at the Las
Palmas Apartments between November 9 and 11. At some point
before Harvey’s murder, Appellant and Tate tried to pawn
Brennan’s minivan in Gwinnett County because they were out of
money, but they could not do so because they did not have the title
to the vehicle.
(c) The Crane Robbery.
According to Tate, Appellant robbed Heather Crane before
noon on November 10, the day of Harvey’s murder. Appellant
threatened Crane, a guest of the Peachtree Inn and Suites, by
pointing the rifle at her and taking her purse. After removing the
little money found inside Crane’s purse, Appellant abandoned the
purse at a Subway.
Dominique Upshaw, Crane’s boyfriend at the time, testified
that after the robbery,5 Crane entered their shared hotel room and
was “frantic.” Crane said a man in a vehicle approached her outside
the hotel, pointed a gun at her, and robbed her. Crane then reported
5 Crane passed away prior to trial.
11 the theft to hotel staff. Rana Jawanda, the owner of the hotel,
retrieved surveillance video of the robbery and showed Crane the
video of the theft. During their subsequent conversation, Crane
gave Jawanda a more detailed description of the events, including
that the perpetrator was traveling in a Japanese model van with a
female occupant. Crane stated that the man exited the van and held
Crane at gunpoint with an old, rusted, double-barrel gun. At trial,
Jawanda identified Brennan’s minivan as the one shown in the hotel
surveillance video depicting the robbery of Crane.
3. Turning to Appellant’s specific contentions with respect to
the trial court’s admission of these prior acts, Appellant contends
that the trial court erred (a) by ruling in its order denying
Appellant’s motion for new trial that these acts were intrinsic
evidence, and (b) by admitting these acts at trial as extrinsic
evidence. We conclude that the evidence was properly admitted as
intrinsic evidence, so we need not address its potential admission as
extrinsic evidence under Rule 404 (b). See Smith v. State, 307 Ga.
263, 272 (2) (c) (834 SE2d 1) (2019) (“[B]ecause the evidence was
12 intrinsic, it was outside the reach of Rule 404 (b).” (citation and
punctuation omitted)).
Evidence is admissible as intrinsic evidence when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense . . . . [E]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury . . . . [E]vidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant’s character at issue.
Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350)
(2017) (citations and punctuation omitted). “[T]here is no bright-
line rule regarding how close in time evidence must be to the
charged offenses, or requiring evidence to pertain directly to the
victims of the charged offenses, for that evidence to be admitted
properly as intrinsic evidence.” Harris v. State, 310 Ga. 372, 381 (2)
13 (b) (850 SE2d 77) (2020). “[W]e review a trial court’s ruling
admitting evidence as intrinsic for an abuse of . . . discretion.” Id. at
377.
Here, all three acts were part of the chain of events leading to
the charged crimes. The Tate assault illustrated Tate’s tumultuous
relationship with Appellant and explained why she was afraid of
Appellant. It demonstrated why she stayed with Appellant until
and after Harvey’s murder, even initially denying their involvement
because she feared Appellant. See McCammon v. State, 306 Ga. 516,
522 (2) (832 SE2d 396) (2019) (co-defendant’s testimony that he and
appellant smoked marijuana together six months before the murder,
“[w]hile . . . further afield from the charged crimes, . . . was a
natural part of [the co-defendant’s] account of his relationship with
[a]ppellant”); see also Williams, 302 Ga. at 486 (prior act helped
explain to jury, among other things, why a victim refused the
defendant’s advances and the motive for the victim to end her
relationship with the defendant). The evidence also explained why
Tate had a red cast on her leg, which Appellant later sought to
14 remove to avoid detection by authorities. When considered in light
of the other evidence in this case, evidence of the Tate assault was
reasonably necessary to complete the story for the jury and was
therefore intrinsic evidence. See Harris, 310 Ga. at 378 (2) (b)
(evidence was necessary to complete story for the jury, and therefore
intrinsic, where it explained motivation and offered context to other
witnesses’ accounts).
Similarly, the Brennan murder explained why Appellant and
Tate were driving Brennan’s gold minivan and why they had fled
from Mobile, Alabama to Gwinnett County. Through the minivan,
Appellant was tied not only to Brennan’s murder, but also to the
credit card transactions in Mobile, the Crane robbery, and
ultimately to Harvey’s murder. Perhaps most importantly, the
Brennan murder explained Appellant’s motive to evade authorities.
Appellant went so far as to remove the red cast from Tate’s leg
immediately after the Brennan murder because he believed “they
was going to be looking for somebody with a red cast.” This motive
explained why he shot Harvey; killing Harvey after the car crash
15 would delay the police response to the crash and eliminate the only
witness. Indeed, Appellant continued to evade capture after
murdering Harvey, as Tate testified that, as they were fleeing the
scene, Appellant said, “[S]ee what you made me do?” He also talked
about how he was going to make Tate engage in more prostitution
to get money for a bus ticket. Therefore, the Brennan murder was
also an important part of the story and admissible as intrinsic
evidence.
The Crane robbery was the next link in Appellant and Tate’s
crime spree. After stealing Brennan’s minivan and exhausting the
credit cards they found in the minivan, Appellant and Tate were in
need of money. The armed robbery, in which Appellant used the
stolen minivan and the rifle, was how he obtained money.
Surveillance video indicated that the perpetrator of the robbery was
in a gold minivan identical to the one Appellant had stolen from
Brennan. Appellant later abandoned the purse he stole from Crane
at the same Subway restaurant for which a receipt was found in the
van after the Harvey murder. And the robbery added another
16 reason for Appellant to avoid capture by the police. Therefore, the
Crane robbery, while not strictly necessary to the prosecutor’s case,
was nonetheless reasonably necessary to complete the story for the
jury. See Harris, 310 Ga. at 379 (2) (b) (“[A]lthough evidence of the
uncharged criminal conduct may not be necessary to prove the
charged offense, there is no requirement that the government
proffer only enough evidence to allow the jury to convict, and no
more, and this evidence helped the jury understand the sequence of
events that led to the discovery of the firearm, and to [the
appellant’s] arrest.” (citation and punctuation omitted)).
Accordingly, evidence of the Crane robbery was relevant as intrinsic
“Relevant [intrinsic] evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” OCGA § 24-4-403. “There is no mechanical solution for
this balancing test,” and “a trial court must undertake in each case
17 a considered evaluation of the proffered justification for the
admission of such evidence and make an independent
determination.” State v. Jones, 297 Ga. 156, 163 (3) (773 SE2d 170)
(2015). We have explained that this balance should be struck in
favor of admissibility. See Carston v. State, 310 Ga. 797, 803 (3) (b)
(854 SE2d 684) (2021); see also Hood v. State, 309 Ga. 493, 500-501
(2) (847 SE2d 172) (2020) (“[O]ther acts evidence should be excluded
if it constitutes [a] matter of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial effect.” (citation
and punctuation omitted)). “[I]n reviewing issues under Rule 403,
we look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue
prejudicial impact.” Anglin v. State, 302 Ga. 333, 337 (3) (806 SE2d
573) (2017) (citation and punctuation omitted).
As explained above, the three prior acts here were probative to
explaining the context of the charged crimes, the relationship
between Appellant and Tate, why Appellant and Tate were in a
stolen gold minivan with a rifle, why Tate was reluctant to leave
18 Appellant, and why Appellant and Tate were in Gwinnett County in
the first place. Most importantly, the Brennan murder and the
Crane robbery were highly probative of Appellant’s motive for
killing Harvey after Harvey caused an accident — Appellant was
fleeing authorities and evading apprehension for Brennan’s murder
and Crane’s robbery, as the prosecutor argued at trial.
Furthermore, the trial court gave a limiting instruction to the jury,
directing it to consider the evidence only on the issues of intent,
identity, knowledge, motive, and opportunity, which reduced the
prejudicial impact to Appellant. Thus, the trial court could
determine, in its discretion, that the prejudicial impact of the three
acts, while significant, was not unfair and did not substantially
outweigh the probative value of this evidence. See Mosley v. State,
307 Ga. 711, 715 (2) (838 SE2d 289) (2020) (evidence suggested that
appellant engaged in a crime spree, and “though the intrinsic
evidence indirectly implicated [the appellant] in additional criminal
acts and had only minimal evidentiary value, we cannot say that the
trial court abused its discretion in concluding that the probative
19 value of this evidence was not substantially outweighed by the
danger of unfair prejudice”); see also Anglin, 302 Ga. at 337 (3) (“[I]n
a criminal trial, inculpatory evidence is inherently prejudicial; it is
only when unfair prejudice substantially outweighs probative value
that [Rule 403] permits exclusion.” (citation and punctuation
omitted)). Accordingly, we hold that the trial court did not abuse its
discretion in finding that the three prior acts were admissible as
intrinsic evidence.
Appellant further argues that these three acts were
inadmissible as extrinsic evidence under Rule 404 (b).6 However,
the trial court provided a limiting instruction to the jury, which
narrowed the scope for which the jury could consider the evidence
and thus minimized any potential harm. Because the evidence was
properly admitted as intrinsic evidence, however, we need not
address its admission as extrinsic evidence under Rule 404 (b). See
Smith, 307 Ga. at 272 (2) (c). See also Williams, 302 Ga. at 485 (IV)
6 As discussed above, the acts would have been admissible under Rule
404 (b) at least for the purpose of motive. 20 (d) (“The limitations and prohibition on other acts evidence set out
in OCGA § 24-4-404 (b) do not apply to intrinsic evidence.” (citation
and punctuation omitted)); United States v. Rolett, 151 F3d 787, 790
(8th Cir. 1998) (“Although both parties treated the evidence of other
acts as [federal] Rule 404 (b) evidence, this court finds that such
evidence is intrinsic evidence which is inextricably intertwined as
an integral part of the immediate context of the crime charged.”
(citation and punctuation omitted)). Accordingly, Appellant’s
enumerations regarding the admissibility of the three prior acts
fails.
4. Appellant next raises two related enumerations of error
regarding the admission of the Tate assault evidence: that (a) the
trial court erred in ruling that the Tate assault was admissible as a
“prior difficulty” and (b) trial counsel provided constitutionally
deficient performance by conceding that the Tate assault was
admissible as a prior difficulty.
(a) At the pretrial motions hearing, the State proffered the Tate
assault evidence as a prior difficulty between Appellant and Tate,
21 arguing that it was admissible to show the state of their
relationship. Appellant’s counsel conceded that this particular
incident was admissible as a prior difficulty and did not object to its
admission.
Because Appellant did not object to the admission of the Tate
assault, we review this claim only for plain error. See Brewner v.
State, 302 Ga. 6, 12 (III) (804 SE2d 94) (2017) (plain error review
where appellant did not assert any objection when other acts
evidence was first introduced at trial). To prove plain error, among
other things, “there must be an error or defect — some sort of
deviation from a legal rule — that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant.” Id. (citation and punctuation omitted). Appellant
conceded that the Tate assault evidence was admissible. Thus,
Appellant affirmatively waived this error and cannot show plain
error. Accordingly, this enumeration of error fails.
(b) Appellant contends that his trial counsel was
constitutionally ineffective for conceding the admissibility of the
22 Tate assault evidence. We disagree.
To succeed on a claim of ineffective assistance of counsel,
Appellant “must prove both that his lawyer’s performance was
professionally deficient and that he was prejudiced as a result.”
Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation
and punctuation omitted); see also Strickland v. Washington, 466
U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “[I]f [Appellant]
fails to establish one prong, we need not examine the other.”
Armstrong v. State, 310 Ga. 598, 607 (5) (852 SE2d 824) (2020)
(citation and punctuation omitted).
We have explained that “[t]here is no deficient performance
when an attorney fails to object to admissible evidence.” Perera v.
State, 295 Ga. 880, 884-885 (3) (b) (763 SE2d 687) (2014) (citation
and punctuation omitted). As discussed above, the Tate assault was
admissible as intrinsic evidence, and therefore trial counsel did not
perform deficiently. Appellant’s ineffective assistance claim
accordingly fails.
5. In his final enumeration of error, Appellant contends that
23 the cumulative effect of the alleged errors warrants a new trial. See
State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020) (“We hold
that the proper approach [to assessing multiple trial court
errors] . . . is to consider collectively the prejudicial effect, if any, of
trial court errors, along with the prejudice caused by any deficient
performance of counsel). Here, Appellant has shown no error with
respect to the admission of the three prior acts, as they were
admissible as intrinsic evidence. Accordingly, there was no error,
much less any cumulative error, and Appellant’s enumeration fails.
6. Although Appellant does not raise any sentencing issues on
appeal, we have identified two errors in his sentencing. See Dixon
v. State, 302 Ga. 691, 696-697 (4) (808 SE2d 696) (2017) (“We have
the discretion to correct merger errors sua sponte . . . because a
merger error results in an illegal and void judgment of conviction
and sentence.”). Appellant was charged with and found guilty of
malice murder, felony murder predicated on aggravated assault,
aggravated assault, and possession of a firearm during the
commission of a felony. The trial court sentenced Appellant to serve
24 life in prison without the possibility of parole for malice murder; life
in prison concurrent for felony murder; 20 years concurrent for the
predicate felony of aggravated assault; and five years consecutive
for the firearm possession charge.
The trial court’s sentencing with regard to the felony murder
was error, as the felony murder count should have been vacated by
operation of law. “[W]hen a valid guilty verdict is returned on both
malice murder and felony murder of the same victim, the defendant
should be sentenced for the malice murder, and the alternative
felony murder count stands vacated by operation of law as simply
surplusage.” Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d 1) (2014)
(citation and punctuation omitted; emphasis in original). Here,
there was only one victim in relation to both the malice murder and
felony murder counts. “It follows that the trial court erred in failing
to sentence [Appellant] only on the malice murder count and that
the separate sentence[ ] on the . . . alternative felony murder count[
] must be vacated,” because the felony murder conviction was
“simply surplusage.” Malcolm v. State, 263 Ga. 369, 372 (4) (434
25 SE2d 479) (1993) (citation and punctuation omitted). Accordingly,
we vacate Appellant’s conviction and sentence for felony murder.
The trial court’s sentencing with regard to the aggravated
assault count was also error. “When the same conduct of an accused
may establish the commission of more than one crime, the accused
may be prosecuted for each crime. He may not, however, be
convicted of more than one crime if . . . [o]ne crime is included in the
other[.]” OCGA § 16-1-7 (a) (1). Separate convictions for the malice
murder and aggravated assault of a single victim may be permitted
where there is a deliberate interval between the infliction of a non-
fatal injury and a subsequent fatal injury. See Johnson v. State, 300
Ga. 665, 666-667 (2) (797 SE2d 903) (2017). Here, however,
Appellant fired a single bullet that killed Harvey, and the single shot
was the basis for both the aggravated assault and the malice murder
charges; there was no evidence of a deliberate interval. Therefore,
the trial court should have merged the aggravated assault charge
with the malice murder conviction. Accordingly, we vacate
Appellant’s conviction and sentence for aggravated assault. See id.
26 at 667 (“In the absence of some evidence of a ‘deliberate interval’
between the infliction of any of the wounds the victim suffered, we
must vacate [the appellant’s] aggravated assault conviction.”).
Judgment affirmed in part and vacated in part. All the Justices concur, except McMillian, J., who concurs in judgment only in Division 3.
Decided June 21, 2021.
Murder. Gwinnett Superior Court. Before Judge Rich.
Kelsey L. Geary, for appellant.
Patsy A. Austin-Gatson, District Attorney, Sabrina
Nizamuddin, Assistant District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew B. Crowder, Assistant Attorney General, for appellee.