Morris v. State ( 2015 )

297 Ga. 426FINAL COPY
S15A0488. MORRIS v. THE STATE.
HUNSTEIN, Justice.
Michael Thomas Morris, Jr., was convicted of malice murder and multiple
other crimes in connection with the shooting death of Joshua Moore. Morris
appeals, alleging various errors in his trial and sentences. Finding no error, we
affirm.1
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The crimes occurred on August 22, 2009. On February 5, 2010, Morris was
indicted by a Bartow County grand jury. For the death of Moore, Morris was charged
with malice murder as well as two counts of felony murder, one count predicated on
aggravated assault against Moore and the other predicated on possession of a firearm
by a convicted felon, based on a prior 2005 aggravated assault conviction (Counts 1,
2, and 3). He was also charged with three counts of possession of a firearm during
the commission of a crime (Counts 4, 8, and 11); aggravated battery based on
shooting Dewayne Westbrooks and rendering members of his body useless (Count
5); aggravated battery based on shooting Westbrooks and causing significant
disfigurement (Count 6); aggravated assault of Westbrooks by shooting him (Count
7); aggravated assault against Cheryl Newborn by pointing a handgun at her (Count
9); terroristic threats against Newborn (Count 10); and possession of a firearm by a
convicted felon based upon a 2007 conviction for interference with government
property (Count 12). Morris was convicted by a jury on all counts on August 19,
2011. On October 11, 2011, the trial court sentenced Morris to life without parole for
malice murder, plus the following consecutive terms totaling 60 years: five years on
Count 4; 20 years on Count 5; five years on Count 8; 20 years on Count 9; five years
on Count 11; and five years on Count 12. The verdicts on the felony murder counts
(Counts 2 and 3) were vacated by operation of law, and, for sentencing purposes,
Counts 6 and 7 merged into Count 5 and Count 10 merged into Count 9. Morris filed
a timely motion for new trial and amended it once; the trial court denied the motion
on July 31, 2013. Morris filed a timely notice of appeal but, upon docketing in this
1. Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed that, on the day of the crimes, Morris and his
girlfriend, Cheryl Newborn, argued about his excessive drinking, and she asked
him to leave the apartment that they shared. Morris picked up a handgun and
pointed it at Newborn, threatening to kill her if she left him. Newborn was able
to defuse the situation, and Morris put the gun in his pocket and walked to the
apartment of Deana Thomas, a neighbor. Morris told Thomas and her
companion that he was upset because Newborn was leaving him. He pulled out
his gun, placing it on a table, and said that he had threatened to kill Newborn.
Eventually, Morris agreed to let Thomas put the gun in a drawer, and they
walked outside.
At about that time, Dewayne Westbrooks, who lived at the same apartment
complex, was returning home with his friend Joshua Moore and two other
friends. As Moore was getting out of the car, Morris, who was not acquainted
Court, filed a motion to remand seeking an evidentiary hearing to assert a claim of
ineffectiveness of trial counsel. This Court granted the motion and struck the appeal
from the docket. Morris v. State, S14A0105 (Nov. 4, 2013). On remand, Morris,
with new counsel, filed an amended motion for new trial on August 12, 2014.
Following a hearing, the trial court denied the motion by order entered September 2,
2014. Morris again filed a timely notice of appeal, and the appeal was docketed in
this Court to the January 2015 term and submitted for decision on the briefs.
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with Moore or Westbrooks, began uttering profanities. Moore ran over to
Morris and hit him, and a fight ensued. Westbrooks, who had been in the back
seat of the car, exited the car and was eventually able to separate Moore and
Morris. Moore, Westbrooks, and their companions began walking toward
Westbrooks’ apartment, but Morris ran back into Thomas’ apartment, returned
with his gun, and shot Westbrooks from close range, seriously injuring him.2
Moore tackled Morris, who then shot Moore twice, killing him. Morris left the
scene, went to a friend’s house, and gave his friend the gun. The friend called
the police, and Morris surrendered when officers arrived. The State also
presented evidence of Morris’ 2005 felony conviction for aggravated assault and
his 2007 conviction for interference with government property.
(a) In two enumerations of error, Morris contends that the evidence is
insufficient to support his conviction for terroristic threats. However, Morris
was not sentenced for terroristic threats because the verdict on that count merged
with the verdict for aggravated assault against Newborn. Therefore, this claim
is moot. See Threatt v. State, 293 Ga. 549, 549, n. 2 (748 SE2d 400) (2013).
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Westbrooks’ substantial internal injuries ultimately necessitated the removal
of his spleen and one of his kidneys.
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(b) Similarly, Morris’ challenge to the sufficiency of the evidence with
regard to Count 3, a felony murder count, is also moot. Threatt at 549, n. 2.
(c) Morris also contends that the evidence is insufficient to support the
conviction for possession of a firearm by a convicted felon based on his 2007
felony conviction for interference with government property because the
certified copy of the 2007 conviction was tendered and admitted into evidence
during a bench conference and not properly presented to the jury. However, the
record clearly shows that the certified copy was admitted into evidence and
made a part of the record and that all the documentary evidence admitted during
the trial was delivered to the jury at the beginning of its deliberations. Thus, this
claim is without merit.
(d) Although Morris does not challenge the sufficiency of the evidence
with regard to the remaining convictions, we conclude that, viewed in the light
most favorable to the verdicts, the evidence presented at trial was sufficient to
authorize a rational jury to find him guilty beyond a reasonable doubt of the
crimes of which he was convicted and sentenced: malice murder, aggravated
assault, aggravated battery, three counts of possession of a firearm during the
commission of a crime, and one count of possession of a firearm by a convicted
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felon. Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979).
2. Morris asserts that the trial court erred in refusing to allow trial counsel
to stipulate to Morris’ status as a convicted felon. The failure to allow such a
stipulation may be an abuse of discretion where “(1) a defendant’s prior
conviction is of the nature likely to inflame the passions of the jury and raise the
risk of a conviction based on improper considerations, and (2) the purpose of the
evidence is solely to prove the defendant’s status as a convicted felon.” Ross
v. State, 279 Ga. 365, 368 (2) (614 SE2d 31) (2005). Here, however, Morris’
prior convictions for aggravated assault and interference with government
property were not of a “nature likely to inflame the passions of the jury,” even
where Morris was also charged with aggravated assault. See Ballard v. State,
297 Ga. 248, 252 (6) (a) (773 SE2d 254) (2015) (in prosecution for felony
murder and aggravated assault, prior conviction for aggravated assault not likely
to inflame passions of the jury); Hill v. State, 290 Ga. 493 (6) (722 SE2d 708)
(2012) (same). Additionally, the only evidence presented about the prior
convictions were certified copies of the final dispositions, which included only
the name of the crimes and the sentences received. Thus, we conclude that the
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trial court did not abuse its discretion in refusing to accept the stipulation.
3. Finally, Morris argues that the trial court improperly imposed a
recidivist sentence based on his prior convictions because those convictions had
been “used up” in connection with the counts involving possession of a firearm
by a convicted felon, citing King v. State, 169 Ga. App. 444 (313 SE2d 144)
(1984). However, the King rule has “no application to crimes that do not have
as an element the defendant’s prior conviction of a felony.” Hillman v. Johnson,
297 Ga. ___ (2) (a) (___ SE2d ___) (2015). Therefore, the only sentence
possibly impacted by this rule is Morris’ sentence on Count 12 for possession
of a firearm by a convicted felon. However, the record makes clear that the trial
court did not rely on Morris’ prior convictions and OCGA § 17-10-7 (a), but
rather exercised its discretion, in imposing all of the sentences. Compare
Hillman, 297 Ga. at ___ (record showed a reasonable probability that trial court
would not have imposed maximum sentence for felon-in-possession count but
for counsel’s deficient performance in failing to raise objection based on King).
Therefore, this enumeration is without merit.
Judgment affirmed. All the Justices concur.
Decided June 29, 2015.
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Murder. Bartow Superior Court. Before Judge Smith.
Steven A. Miller, for appellant.
Rosemary M. Greene, District Attorney, Sharon M. Fox, Assistant District
Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
Clint C. Malcolm, Assistant Attorney General, for appellee.
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