MOORE v. THE STATE (Two Cases) ( 2021 )

In the Supreme Court of Georgia
Decided: May 17, 2021
S21A0220. MOORE v. THE STATE.
S21A0221. MILBOURNE v. THE STATE.
BOGGS, Justice.
Simeon Gashon Moore and Walter Vernell Milbourne
challenge their 2016 convictions for malice murder and other crimes
in connection with the shooting of Jamie Milton and the shooting
death of Milton’s girlfriend, Jamie Moore (“Jamie”). Moore contends
that the evidence presented at trial was legally insufficient to show
that he shared responsibility for Jamie’s death and that he was
denied the effective assistance of counsel due to a conflict of interest.
Milbourne contends that the trial court violated the continuing
witness rule by sending a PowerPoint presentation created by the
lead detective that summarized the admitted cell phone evidence out
with the jury during deliberations and erred in granting a request
by the media to film closing arguments over his objection. Milbourne
also contends that his motion for new trial counsel was
constitutionally ineffective. For the reasons that follow, we affirm
both cases.1
1. On the afternoon of November 12, 2014, Kevin Robinson
arranged to meet Milton to buy a quarter-pound of marijuana with
money supplied by Milbourne. Milbourne’s best friend, Moore, drove
1 The crimes occurred on November 12, 2014. On January 30, 2015, a
Cobb County grand jury indicted Moore, Milbourne, and Kevin Nathanial
Robinson for malice murder and other crimes. On July 1, 2016, Moore,
Milbourne, and Robinson were re-indicted for malice murder, five counts of
felony murder, two counts of aggravated assault with a deadly weapon, first
degree burglary, armed robbery, possession of more than an ounce of
marijuana, and one count for each defendant of possession of a firearm during
the commission of a felony. Moore also was charged with fleeing or attempting
to elude a police officer. Robinson pled guilty to reduced charges and agreed to
testify for the State. At a two-week trial in August 2016, the jury found Moore
and Milbourne guilty of all charges. The trial court sentenced Moore and
Milbourne as recidivists to serve life in prison without the possibility of parole
for malice murder, consecutive terms of five years each for possession of a
firearm during the commission of a felony, and concurrent terms of years for
one count of aggravated assault, first degree burglary, armed robbery, and
possession of more than an ounce of marijuana; the court also sentenced Moore
to a concurrent term of five years for fleeing or attempting to elude a police
officer. The felony murder counts were vacated by operation of law, and the
other aggravated assault count merged. Moore and Milbourne filed timely
motions for new trial, which they later amended with new counsel. After a
hearing, on October 29, 2019, the trial court denied the motions. Moore and
Milbourne filed timely notices of appeal, and the cases were docketed in this
Court for the term beginning in December 2020 and submitted for decision on
the briefs.
2
Milbourne and Robinson to the meeting in a red Toyota Camry with
after-market rims and a paper license tag. They parked at a gas
station across the street from the fast-food restaurant where the
drug buy was to take place. Milton was already parked at the
restaurant in a blue Buick LeSabre, and Robinson walked across the
street and got into the front passenger seat of the LeSabre. The
transaction fell through, however, and Robinson got out of the
LeSabre, walked back across the street, and got into the Camry with
Moore and Milbourne. Robinson left one of his cell phones in the
LeSabre.
Milton drove to the nearby apartment complex where he and
Jamie were living temporarily with friends in Apartment 1707.
Milton backed into a parking space by the 1800 building, and as he
got out of the car, he noticed Robinson’s cell phone on the seat.
Milton picked up Robinson’s cell phone, threw it somewhere, and
went upstairs to Apartment 1707, where Jamie was cooking and
talking on the phone.
3
Moore drove Milbourne and Robinson to Milton’s apartment
complex, where they located the LeSabre and parked near it. They
did not know where Milton lived, so Milbourne and Robinson started
knocking on doors, asking if “a guy with dreads” lived there. When
they got to Apartment 1707, Milton was in the bathroom, and Jamie
spoke to Milbourne and Robinson through the door. A few minutes
later, Milbourne and Robinson returned to Apartment 1707 and
knocked again. This time, Milton opened the door, and Robinson
asked if he could look in the LeSabre for his cell phone. Milton
grabbed the car keys, closed the door behind him, and walked
downstairs with Milbourne and Robinson.
Milton sat in the driver’s seat of the LeSabre, and Robinson got
into the front passenger seat and began looking for his cell phone.
When Milton put the key in the ignition, Moore and Milbourne
approached the LeSabre with guns drawn, and Milbourne
demanded to know where Milton’s marijuana and money were.
Milton replied, “I don’t know. I ain’t got it . . . .” Milbourne said that
he was “fixing to go upstairs and get that b**ch,” referring to Jamie,
4
and ran back up the stairs, telling Moore to keep his gun on Milton,
which Moore did as Robinson ran up the stairs after Milbourne.
Seconds later, Milton opened the driver-side door of the LeSabre,
and Moore opened fire into the car but only grazed Milton, who lay
still across the front seat and played dead.
Meanwhile, up in Apartment 1707, Milbourne fought with
Jamie, threatened her, and shot her in the head, killing her.
Milbourne took marijuana, money, and clothing from the apartment
and brought them downstairs to the Camry. When Milbourne saw
Milton peeking over the dashboard of the LeSabre, he fired through
the windshield at Milton but missed. Moore, Milbourne, and
Robinson then got into the Camry, and Milton scrambled out the
passenger-side door of the LeSabre. As Moore sped off, Milton ran to
the leasing office, where a leasing consultant called 911, and Milton
provided a description of the Camry and of Moore, Milbourne, and
Robinson.
Within minutes, police officers driving towards the apartment
complex spotted the Camry, and Moore led them on a high-speed
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chase over the interstate and surface streets, which ended when the
Camry hit a van and flipped over. Moore, Milbourne, and Robinson
fled on foot but were quickly apprehended. Milbourne threw
multiple baggies of marijuana on the ground as he ran from the
police; he had more than $1,000 in cash on his person when he was
taken into custody. When the police caught up to Robinson, he pulled
a bag of marijuana out of his pocket. The gun that Moore used to
shoot at Milton was recovered at the crash site, along with the
clothing that Milbourne took from the apartment.
Case No. S21A0220
2. Moore contends that the evidence presented at trial was
legally insufficient to prove that he shared responsibility for Jamie’s
death.
When we consider the sufficiency of the evidence as a
matter of federal due process, our review is limited to
whether the trial evidence, when viewed in the light most
favorable to the verdicts, is sufficient to authorize a
rational trier of fact to find the defendant guilty beyond a
reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979).
6
Frazier v. State, 308 Ga. 450, 452 (841 SE2d 692) (2020) (citation
and punctuation omitted). We put aside any questions about
conflicting evidence, the credibility of witnesses, or the weight of the
evidence, leaving the resolution of such matters to the discretion of
the jury. See id. at 452-453.
At trial, Moore’s defense strategy was to concede that he drove
Milbourne and Robinson to meet Milton to buy a quarter-pound of
marijuana and to Milton’s apartment complex afterward, and that
he committed felony fleeing and attempting to elude a police officer
after Jamie was shot, but to deny any responsibility for her death on
the theory that he did not shoot her and never entered the
apartment where she was killed. But to convict Moore of murdering
Jamie, “the State was not required to prove that he personally fired
the shot that killed [her], only that [he] was a party to the crime[],
meaning that he intentionally aided or abetted in the commission of
the crime[],” id. at 453, or that he conspired with Milbourne to rob
drug dealer Milton at gunpoint and Jamie’s death was a reasonably
foreseeable consequence of the scheme, see McLeod v. State, 297 Ga.
7
99, 102-103 (772 SE2d 641) (2015). See also OCGA § 16-2-20 (b)
(defining parties to a crime); State v. Jackson, 287 Ga. 646, 652-653
(697 SE2d 757) (2010) (noting “the dangerous and violent nature of
armed robbery and drug dealing”); Everritt v. State, 277 Ga. 457,
459-460 (588 SE2d 691) (2003) (discussing legal responsibility of a
criminal defendant for “natural and probable” or “reasonably
foreseeable” collateral acts of a co-conspirator (emphasis in
original)).
The evidence presented at trial, when properly viewed in the
light most favorable to the verdicts, showed that Milbourne and
Moore simultaneously approached Milton with guns drawn when
Milton put the key in the ignition of the LeSabre, and Milbourne
demanded to know where Milton’s marijuana and money were.
When Milton refused to cooperate, Milbourne announced that he
was “fixing to go upstairs and get that b**ch,” referring to Jamie. At
Milbourne’s direction, Moore held Milton at gunpoint in the parking
lot as Milbourne ran up the stairs. When Milton opened the driver-
side door of the LeSabre to get away, Moore opened fire into the car,
8
grazing Milton. Milbourne, after shooting Jamie, brought
marijuana, money, and clothing downstairs from the apartment, put
them in the Camry, and shot at Milton through the windshield of
the LeSabre. Moore then got into the Camry with Milbourne and
Robinson and sped off, leading the police on a dangerous high-speed
chase over the interstate and surface streets that ended only when
the Camry hit a van and flipped over.
A rational jury could infer from Moore’s actions before, during,
and after the shooting of Jamie that Moore shared a common
criminal intent with Milbourne. See Frazier, 308 Ga. at 453 (“‘While
mere presence at the scene of a crime is not sufficient evidence to
convict one of being a party to a crime, criminal intent may be
inferred from presence, companionship, and conduct before, during,
and after the offense.’” (citation omitted)). A rational jury also could
infer from this evidence that Milbourne and Moore conspired to rob
Milton at gunpoint and that the murder of Jamie (or anyone else
standing in the way of the armed robbery) was a reasonably
foreseeable consequence of the conspiracy. See Hicks v. State, 295
9
Ga. 268, 273-274 (759 SE2d 509) (2014). Accordingly, the evidence
presented at trial was legally sufficient to support Moore’s
conviction for the malice murder of Jamie.
3. Moore also contends that he was denied the effective
assistance of counsel at trial due to a conflict of interest. We
disagree.
On the first day of the second week of trial, during an afternoon
break before Robinson testified, Jill Stahlman, Moore’s trial counsel,
was reviewing Robinson’s prior convictions and probation
revocations in preparation for cross-examination when she noticed
her signature at the bottom of the second page of an April 18, 2011
consent probation revocation order. Stahlman brought the issue to
the trial court’s attention and told the court that she had no
independent recollection of representing Robinson, that she did not
recognize him, and that she did not have any confidential
information relating to the prior representation that could be used
to Robinson’s detriment. Robinson consulted with an attorney, Sara
Becker, and then agreed to waive any potential conflict of interest
10
and signed a written waiver. Moore consulted with Stahlman and
also agreed to waive any potential conflict, but as Stahlman was
preparing a written waiver for Moore to sign, she became concerned
that Moore should have the opportunity to consult with independent
counsel.
The court asked Stahlman if she would “let up” on Robinson or
“take it easy on him” during cross-examination because she
previously represented him, and Stahlman said no. The court then
asked Moore if he wanted to talk to another attorney before signing
a waiver, and when Moore said that he was unsure, the court called
a recess and arranged for Moore to speak with attorney Maddox
Kilgore. After consulting with Kilgore, Moore decided not to waive
any potential conflict of interest. Stahlman told the court that in
light of Moore’s decision not to waive the conflict, she was not
comfortable going forward with the representation. After calling
another recess, the court found that there was no real conflict of
interest and denied Stahlman’s motion to withdraw from
representing Moore.
11
Robinson testified the next morning and was cross-examined
by Stahlman and counsel for Milbourne. The court then sent the jury
to lunch and asked, “Ms. Stahlman, did you ask every question you
would have ordinarily asked Mr. [Robinson] or did you let up on
him?” Stahlman replied, “No, sir. I did not let up on him.”
To obtain reversal of a conviction based on a claim that trial
counsel’s assistance was rendered ineffective by a conflict of interest,
a defendant must show that his counsel actively represented
conflicting interests and that an actual conflict of interest adversely
affected his counsel’s performance. See Strickland v. Washington,
466 U.S. 668, 692 (104 SCt 2052, 80 LE2d 674) (1984) (citing Cuyler
v. Sullivan, 446 U.S. 335 (100 SCt 1708, 64 LE2d 333) (1980)). See
also Mickens v. Taylor, 535 U.S. 162, 174 (122 SCt 1237, 152 LE2d
291) (2002) (holding that in cases where there is a conflict rooted in
counsel’s obligations to a former client, it is “at least necessary, to
void the conviction, for [the defendant] to establish that the conflict
of interest adversely affected his counsel’s performance”). Moore
failed to make the required showing.
12
The trial court credited Stahlman’s representations that she
did not recognize Robinson, had no recollection of representing him
until she saw her signature on the consent probation revocation
order from five years earlier, did not receive any confidential
information during her representation of him that would affect her
representation of Moore, and did not “let up on” Robinson during
cross-examination. Moore does not even speculate about what
Stahlman might have done differently in this case had she not
previously represented Robinson in an unrelated matter, much less
point to anything in the record showing that Stahlman’s
representation of him was adversely affected by her prior
representation of Robinson. Accordingly, Moore’s claim that he was
denied the effective assistance of counsel at trial due to a conflict of
interest lacks merit. See Hill v. State, 269 Ga. 23, 24-25 (494 SE2d
661) (1998) (rejecting claim of ineffective assistance of trial counsel
based on counsel’s prior representation of prosecution witness in an
unrelated criminal matter where the defendant failed to show an
adverse effect on the representation).
13
Case No. S21A0221
4. Milbourne contends that the trial court violated the
continuing witness rule by sending out with the jury during
deliberations a PowerPoint presentation that summarized the
admitted cell phone evidence. However, the continuing witness rule
is directed at written testimony that is heard by the jury when read
from the witness stand. See Keller v. State, 308 Ga. 492, 505-506
(842 SE2d 22) (2020). The rule is based on the principle that it is
unfair and places undue emphasis on written testimony that has
been read to the jury for the writing to be sent out with the jury to
be read again during deliberations whereas oral testimony is
received by the jury only once. See id. at 506. We previously have
held that a summary of admitted cell phone records may be sent out
with the jury during deliberations without violating the continuing
witness rule. See Wilkins v. State, 291 Ga. 483, 487-488 (731 SE2d
346) (2012). See also Rainwater v. State, 300 Ga. 800, 802 n.3 (797
SE2d 889) (2017) (“[T]he continuing witness rule itself was
unaffected by the enactment of the new Evidence Code.”). And
14
contrary to Milbourne’s suggestion, the fact that the lead detective
prepared the PowerPoint summary here has no bearing on whether
the continuing witness rule was violated. See Wilkins, 291 Ga. at
487 (referring to the “State-created summary”). See also McKenzie
v. State, 300 Ga. App. 469, 473 (685 SE2d 333) (2009) (holding that
the continuing witness rule did not apply to a timeline of the
defendants’ cell phone activity created by an investigator for the
district attorney’s office). Accordingly, this claim fails.
5. Citing former Uniform Superior Court Rule 22 (P),2
Milbourne contends that the trial court erred in granting a request
by the media to film closing arguments over his objection, because
the record does not affirmatively show that the court considered the
factors set out in OCGA § 15-1-10.1 (b).3 However, Milbourne cites
2 Milbourne’s trial took place in August 2016. At the time, former
Uniform Superior Court Rule 22 (P) said: “A request for installation and use of
electronic recording, transmission, videotaping or motion picture or still
photography of any judicial proceeding shall be evaluated pursuant to the
standards set forth in OCGA § 15-1-10.1.”
3 OCGA § 15-1-10.1, which has not been amended since Milbourne’s trial,
says:
(a) It is declared to be the purpose and intent of the General
Assembly that certain standards be considered by the courts
15
in determining whether to grant requests for the televising,
videotaping, or motion picture filming of judicial
proceedings. Such standards are intended to provide an
evaluation of the impact on the public interest and the rights
of the parties in open judicial proceedings, the impact upon
the integrity and dignity of the court, and whether the
proposed activity would contribute to the enhancement of or
detract from the ends of justice.
(b) In considering a request for the televising, videotaping, or
motion picture filming of judicial proceedings, the court shall
consider the following factors in determining whether to
grant such request:
(1) The nature of the particular proceeding at issue;
(2) The consent or objection of the parties or witnesses
whose testimony will be presented in the proceedings;
(3) Whether the proposed coverage will promote increased
public access to the courts and openness of judicial
proceedings;
(4) The impact upon the integrity and dignity of the court;
(5) The impact upon the administration of the court;
(6) The impact upon due process and the truth finding
function of the judicial proceeding;
(7) Whether the proposed coverage would contribute to
the enhancement of or detract from the ends of justice;
(8) Any special circumstances of the parties, victims,
witnesses, or other participants such as the need to
protect children or factors involving the safety of
participants in the judicial proceeding; and
(9) Any other factors which the court may determine to be
important under the circumstances of the case.
(c) The court may hear from the parties, witnesses, or other
interested persons and from the person or entity requesting
coverage during the court’s consideration of the factors set
forth in this Code section.
(d) This Code section shall not apply to the use of electronic or
photographic means for the presentation of evidence or the
perpetuation of a record.
(e) The court in its discretion may grant requests made under
this Code section for all or portions of judicial proceedings.
16
no authority for the proposition that a trial court must state on the
record its reasons for granting a Rule 22 request. Moreover, we
generally presume that a trial court made the findings necessary to
support its ruling, unless the record shows otherwise. See, e.g.,
Williams v. State, 306 Ga. 674, 677 (832 SE2d 843) (2019).
Accordingly, this claim lacks merit.
6. Finally, Milbourne contends that his motion for new trial
counsel was constitutionally ineffective. Specifically, Milbourne
points to three alleged instances of deficient performance by his trial
counsel that he says were prejudicial to his defense, see Strickland,
466 U.S. at 687, and he asserts that his motion for new trial counsel
was constitutionally ineffective in failing to pursue an ineffective
assistance of trial counsel claim at the motion for new trial stage. 4
In Georgia, ineffectiveness claims must be raised and pursued
at the “‘earliest practicable moment,’” which for a claim of ineffective
4 Attorney Kevin Rodgers represented Milbourne at trial and filed a
timely motion for new trial on his behalf. Milbourne’s motion for new trial
counsel, Rebekah Shelnutt, filed two amended new trial motions, appeared at
the motion for new trial hearing, and filed a timely notice of appeal. Jennifer
Adams was then appointed to represent Milbourne in this appeal.
17
assistance of trial counsel is at the motion for new trial stage if the
defendant “‘is no longer represented by the attorney who
represented him at trial.’” Elkins v. State, 306 Ga. 351, 361 (830
SE2d 217) (2019) (citations omitted). Milbourne had new counsel at
the motion for new trial stage, but she did not pursue an ineffective
assistance of trial counsel claim on his behalf. Indeed, at the motion
for new trial hearing, she told the court that Milbourne’s trial
counsel was “very thorough.” Thus, Milbourne waived any claim of
ineffective assistance of trial counsel. See Elkins, 306 Ga. at 361.
We do not allow a defendant to resuscitate a waived claim of
trial counsel ineffectiveness on appeal by recasting the claim as one
of ineffective assistance of motion for new trial counsel, because
allowing “‘such bootstrapping would eviscerate the fundamental
rule that ineffectiveness claims must be raised at the earliest
practicable moment and would promote serial appellate
proceedings.’” Id. at 362 (citation omitted). Because Milbourne’s
claim of ineffective assistance of motion for new trial counsel is
“merely a camouflaged claim of ineffectiveness by trial counsel,” id.,
18
it is procedurally barred, see Robinson v. State, 306 Ga. 614, 616-
617 (832 SE2d 411) (2019). If Milbourne wishes to pursue a claim
that his motion for new trial counsel was ineffective, he must do so
through a petition for a writ of habeas corpus. See Elkins, 306 Ga.
at 362.
Judgments affirmed. All the Justices concur.
19