309 Ga. 549 FINAL COPY
S20A0943. MILLER v. THE STATE.
ELLINGTON, Justice.
A jury found Robert Miller guilty of malice murder, aggravated
assault, and associated firearms charges in connection with the
shootings of Antonio Robinson, Martaveous Lawrence, and
Christopher Sheppard, which left Robinson dead.1 On appeal, Miller
1 The shooting occurred on April 21, 2012. A Muscogee County grand jury
returned an indictment on January 28, 2014, charging Miller and Javonta Harris with malice murder (Count 1), felony murder predicated on the aggravated assault against Robinson (Count 2), aggravated assault against Robinson (Count 3), aggravated assault against Lawrence (Count 5), aggravated assault against Sheppard (Count 7), and possession of a firearm during the commission of a crime predicated on the three aggravated assaults (Counts 4, 6, and 8). At a jury trial against Miller alone that ended on September 15, 2016, Miller was found guilty on all counts. By judgment entered on October 11, 2016, the trial court sentenced Miller to life imprisonment for malice murder (Count 1), 20 years in prison for the aggravated assault against Robinson (Count 3) to run consecutively to Count 1, five years in prison for the first firearms charge (Count 4) to run consecutively to Count 3, 20 years in prison for the aggravated assault of Lawrence (Count 5) to run concurrently with Count 3, 20 years in prison for the aggravated assault against Sheppard (Count 7) to run concurrently with Count 3, and five years in prison for the remaining firearms charges (Counts 6 and 8) to run concurrently with Count 4. The judgment indicated that the felony murder verdict (Count 2) merged with the malice murder conviction, although the felony murder verdict was actually vacated by operation of law. contends that the trial court committed plain error in excusing a
juror, who was found to be communicating privately with the
presiding judge’s secretary, without first conducting a hearing to
determine the circumstances of the contact, the impact on the juror,
and whether the contact was prejudicial to Miller. For the reasons
explained below, we affirm, except that we vacate in part to correct
a sentencing error.
Viewed in the light most favorable to the verdicts, the evidence
showed the following. At 2:00 a.m. on April 21, 2012, Miller and
Javonta Harris were leaving a nightclub in Columbus when they
encountered Robinson, Lawrence, and Sheppard talking to Harris’s
girlfriend and other women outside the club. Harris approached
Lawrence and told him to leave or he was “going to shoot that [stuff]
up” and “wet [them] up.” Miller pulled up his shirt and showed
Stewart v. State, 299 Ga. 622, 627-628 (3) (791 SE2d 61) (2016). No sentence was authorized for Count 3, and we have corrected that error in Division 3, infra. Miller filed a timely motion for a new trial, which he amended on January 7, 2019. After a hearing on August 8, 2019, the trial court denied Miller’s motion for a new trial on September 25, 2019. Miller filed a timely notice of appeal, and his appeal was docketed in this Court for the April 2020 term and submitted for decision on the briefs. Lawrence that he had a handgun tucked into his waistband.
Lawrence got into Robinson’s Jeep Cherokee with Robinson and
Sheppard, and they drove to another club. Harris and Miller
followed in Miller’s Kia Sorento, with Harris driving.
In the parking lot of the second club, the Sorento pulled up
beside the Cherokee, and Miller taunted Lawrence and the others
about being “scared.” Robinson pulled out of the parking lot, and
Harris and Miller continued to follow. Two or three shots were fired
toward the Cherokee; Lawrence saw the muzzle flashes coming from
the passenger side of the Sorento. Robinson continued driving while
multiple shots were fired from the Sorento. When Robinson was hit
in the head, Sheppard grabbed the steering wheel, but the Cherokee
rolled onto a residential property and hit some steps. Harris
executed a U-turn in the Sorento and passed the Cherokee again.
More shots were fired from the Sorento, this time from the driver’s
side. Lawrence called 911. Robinson was alive when the responding
officer arrived but later succumbed to the gunshot wound to the
head. Multiple .380 shell casings were recovered from the scene of the shooting. The guns used in the shooting were not recovered.
After the shooting, Harris removed many shell casings from
Miller’s Sorento. Days after the shooting, investigators executed a
search warrant of Miller’s apartment and his Sorento. In Miller’s
bedroom closet, investigators found ammunition that matched the
.380 caliber of the fatal bullet that was recovered during Robinson’s
autopsy and found one .380 shell casing in the passenger-side door
pocket of the Sorento. Harris testified that he had sold one of the
guns used in the shooting and dropped the other into the
Chattahoochee River.
In a pretrial statement to investigators that was admitted at
trial, Tatiana Vaughn, Miller’s girlfriend, said that Miller told her
that he shot someone. In another pretrial statement that was
admitted at trial, Miller’s friend, Andrew Edge, also stated that
Miller admitted shooting at the victims.
1. Miller does not challenge the sufficiency of the evidence.
Nevertheless, as has been our customary practice in murder cases,
we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Miller was guilty of the crimes
of which he was convicted. See Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).2
2. Miller contends that the trial court committed plain error in
excusing a juror, who was found to be communicating privately with
the judge’s secretary, without first conducting a hearing to
determine the circumstances of the contact, the impact on the juror,
and whether the contact was prejudicial to Miller, relying on
Remmer v. United States, 347 U. S. 227 (74 SCt 450, 98 LE 654)
(1954), federal circuit court decisions, and Georgia cases.
The record shows that the allegedly improper communication
between a juror and the judge’s secretary was discovered on the
third day of Miller’s trial. After the morning recess, the judge
informed the attorneys that she had learned that her secretary had
2 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, ___ Ga. ___ (___ SE2d ___) (2020). The Court began assigning cases to the December term on August 3, 2020. been texting with a juror, adding that the secretary said it was
“[n]othing about the trial. I think there was some joke about whether
or not I was going to provide doughnuts.” The judge offered to have
her secretary come up and show the texts, and Miller’s attorney
replied, “Out of an abundance of caution, I think it would be good.”
After the attorneys reviewed screen shots of the texts, which were
printed out and designated Judge’s Exhibit 1, Miller’s attorney
requested, “out of an abundance of caution” because there was “the
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309 Ga. 549 FINAL COPY
S20A0943. MILLER v. THE STATE.
ELLINGTON, Justice.
A jury found Robert Miller guilty of malice murder, aggravated
assault, and associated firearms charges in connection with the
shootings of Antonio Robinson, Martaveous Lawrence, and
Christopher Sheppard, which left Robinson dead.1 On appeal, Miller
1 The shooting occurred on April 21, 2012. A Muscogee County grand jury
returned an indictment on January 28, 2014, charging Miller and Javonta Harris with malice murder (Count 1), felony murder predicated on the aggravated assault against Robinson (Count 2), aggravated assault against Robinson (Count 3), aggravated assault against Lawrence (Count 5), aggravated assault against Sheppard (Count 7), and possession of a firearm during the commission of a crime predicated on the three aggravated assaults (Counts 4, 6, and 8). At a jury trial against Miller alone that ended on September 15, 2016, Miller was found guilty on all counts. By judgment entered on October 11, 2016, the trial court sentenced Miller to life imprisonment for malice murder (Count 1), 20 years in prison for the aggravated assault against Robinson (Count 3) to run consecutively to Count 1, five years in prison for the first firearms charge (Count 4) to run consecutively to Count 3, 20 years in prison for the aggravated assault of Lawrence (Count 5) to run concurrently with Count 3, 20 years in prison for the aggravated assault against Sheppard (Count 7) to run concurrently with Count 3, and five years in prison for the remaining firearms charges (Counts 6 and 8) to run concurrently with Count 4. The judgment indicated that the felony murder verdict (Count 2) merged with the malice murder conviction, although the felony murder verdict was actually vacated by operation of law. contends that the trial court committed plain error in excusing a
juror, who was found to be communicating privately with the
presiding judge’s secretary, without first conducting a hearing to
determine the circumstances of the contact, the impact on the juror,
and whether the contact was prejudicial to Miller. For the reasons
explained below, we affirm, except that we vacate in part to correct
a sentencing error.
Viewed in the light most favorable to the verdicts, the evidence
showed the following. At 2:00 a.m. on April 21, 2012, Miller and
Javonta Harris were leaving a nightclub in Columbus when they
encountered Robinson, Lawrence, and Sheppard talking to Harris’s
girlfriend and other women outside the club. Harris approached
Lawrence and told him to leave or he was “going to shoot that [stuff]
up” and “wet [them] up.” Miller pulled up his shirt and showed
Stewart v. State, 299 Ga. 622, 627-628 (3) (791 SE2d 61) (2016). No sentence was authorized for Count 3, and we have corrected that error in Division 3, infra. Miller filed a timely motion for a new trial, which he amended on January 7, 2019. After a hearing on August 8, 2019, the trial court denied Miller’s motion for a new trial on September 25, 2019. Miller filed a timely notice of appeal, and his appeal was docketed in this Court for the April 2020 term and submitted for decision on the briefs. Lawrence that he had a handgun tucked into his waistband.
Lawrence got into Robinson’s Jeep Cherokee with Robinson and
Sheppard, and they drove to another club. Harris and Miller
followed in Miller’s Kia Sorento, with Harris driving.
In the parking lot of the second club, the Sorento pulled up
beside the Cherokee, and Miller taunted Lawrence and the others
about being “scared.” Robinson pulled out of the parking lot, and
Harris and Miller continued to follow. Two or three shots were fired
toward the Cherokee; Lawrence saw the muzzle flashes coming from
the passenger side of the Sorento. Robinson continued driving while
multiple shots were fired from the Sorento. When Robinson was hit
in the head, Sheppard grabbed the steering wheel, but the Cherokee
rolled onto a residential property and hit some steps. Harris
executed a U-turn in the Sorento and passed the Cherokee again.
More shots were fired from the Sorento, this time from the driver’s
side. Lawrence called 911. Robinson was alive when the responding
officer arrived but later succumbed to the gunshot wound to the
head. Multiple .380 shell casings were recovered from the scene of the shooting. The guns used in the shooting were not recovered.
After the shooting, Harris removed many shell casings from
Miller’s Sorento. Days after the shooting, investigators executed a
search warrant of Miller’s apartment and his Sorento. In Miller’s
bedroom closet, investigators found ammunition that matched the
.380 caliber of the fatal bullet that was recovered during Robinson’s
autopsy and found one .380 shell casing in the passenger-side door
pocket of the Sorento. Harris testified that he had sold one of the
guns used in the shooting and dropped the other into the
Chattahoochee River.
In a pretrial statement to investigators that was admitted at
trial, Tatiana Vaughn, Miller’s girlfriend, said that Miller told her
that he shot someone. In another pretrial statement that was
admitted at trial, Miller’s friend, Andrew Edge, also stated that
Miller admitted shooting at the victims.
1. Miller does not challenge the sufficiency of the evidence.
Nevertheless, as has been our customary practice in murder cases,
we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Miller was guilty of the crimes
of which he was convicted. See Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).2
2. Miller contends that the trial court committed plain error in
excusing a juror, who was found to be communicating privately with
the judge’s secretary, without first conducting a hearing to
determine the circumstances of the contact, the impact on the juror,
and whether the contact was prejudicial to Miller, relying on
Remmer v. United States, 347 U. S. 227 (74 SCt 450, 98 LE 654)
(1954), federal circuit court decisions, and Georgia cases.
The record shows that the allegedly improper communication
between a juror and the judge’s secretary was discovered on the
third day of Miller’s trial. After the morning recess, the judge
informed the attorneys that she had learned that her secretary had
2 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, ___ Ga. ___ (___ SE2d ___) (2020). The Court began assigning cases to the December term on August 3, 2020. been texting with a juror, adding that the secretary said it was
“[n]othing about the trial. I think there was some joke about whether
or not I was going to provide doughnuts.” The judge offered to have
her secretary come up and show the texts, and Miller’s attorney
replied, “Out of an abundance of caution, I think it would be good.”
After the attorneys reviewed screen shots of the texts, which were
printed out and designated Judge’s Exhibit 1, Miller’s attorney
requested, “out of an abundance of caution” because there was “the
hint of impropriety,” to dismiss the juror and substitute the first
alternate juror. Initially, the prosecutor objected on the basis that
nothing that was said “warrant[ed the juror’s] being dismissed,” but
the prosecutor added “I don’t have any strenuous objection either
way. I’ll leave it up to the judge.” The judge found that nothing in
the texts indicated “any undue influence” or discussion of the
evidence or other improper conduct. Although the judge did not
conclude that the communications “would necessarily [a]ffect
anything,” she announced that, absent a strenuous objection by the
State, she would go ahead and excuse the juror. At that point, Miller did not pursue any questioning of the juror who communicated with
the judge’s secretary, nor of any other juror serving. At no point
during trial did Miller object to excusing the juror without further
proceedings and replacing her with one of the two alternate jurors.
After the juror was excused, the trial of the case continued to its
conclusion.
Because Miller failed to seek any investigation into or hearing
about the juror communication or its effect on other jurors before the
trial court acceded to Miller’s request to excuse the juror and seat
an alternate, the error Miller now asserts was not preserved for
ordinary appellate review. See Bozzie v. State, 302 Ga. 704, 709 (3)
(808 SE2d 671) (2017); Grimes v. State, 296 Ga. 337, 348 (4) (a) (766
SE2d 72) (2014); Ensley v. State, 294 Ga. 200, 203 (2) (751 SE2d 396)
(2013). And plain-error review is not available for this issue. In
Georgia, plain-error review is
limited to the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b), and, for cases tried after January 1, 2013, with regard to rulings on evidence, a court is allowed to consider plain errors affecting substantial rights although such errors were not brought to the attention of the court. OCGA § 24-1-103 (d).
Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22) (2020)
(citations and punctuation omitted). This Court will not extend
plain-error analysis to other claims of error in the absence of a
specific provision by the General Assembly. Id. Consequently, Miller
presents no basis for reversal. Id.
3. Although Miller does not raise the issue on appeal, we have
identified a merger error in his sentencing. When there is “no
evidence to suggest the occurrence of an aggravated assault
independent of the act which caused the victim’s death,” as in this
case, a jury’s guilty verdict on the aggravated assault merges as a
matter of fact with the malice murder verdict for sentencing
purposes. Favors v. State, 296 Ga. 842, 848 (5) (770 SE2d 855) (2015)
(citation and punctuation omitted). Accordingly, we vacate Miller’s
conviction and sentence for aggravated assault against Robinson
(Count 3). Judgment affirmed in part and vacated in part. All the Justices concur.
DECIDED AUGUST 10, 2020.
Murder. Muscogee Superior Court. Before Judge Gottfried.
Ross & Pines, Noah H. Pines, Andrew S. Fleischman, for
appellant.
Julia F. Slater, District Attorney, Benjamin E. Gephardt,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, for appellee.