Simmons v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: October 25, 2022
S22A0620. SIMMONS v. THE STATE.
MCMILLIAN, Justice.
After a jury trial in 2017, Troy Simmons was convicted of felony
murder and other crimes arising out of the shooting death of
Wendell Lee and the aggravated assault of April Tongol.1 On appeal,
1The crimes occurred on December 23, 2013, and in May 2016, a Wayne
County grand jury indicted Simmons for conspiracy to commit aggravated
assault (Count 1), conspiracy to commit kidnapping (Count 2), conspiracy to
commit false imprisonment (Count 3), aggravated assault of Lee with a deadly
weapon (Count 4), aggravated assault of Tongol with a deadly weapon (Count
5), armed robbery (Count 6), felony murder of Lee while in the commission of
conspiracy to commit aggravated assault (Count 7), felony murder of Lee while
in the commission of conspiracy to commit kidnapping (Count 8), felony murder
of Lee while in the commission of conspiracy to commit false imprisonment
(Count 9), felony murder of Lee while in the commission of aggravated assault
(Count 10), and two violations of the Georgia Street Gang Terrorism and
Prevention Act, OCGA § 16-15-4 (a) & (d) (Counts 11 and 12).
At a trial conducted from January 24 through January 27, 2017, a jury
found Simmons guilty of Counts 1, 4, 5, 7, 10, 11, and 12 and not guilty of the
remaining counts. On January 27, 2017, the trial court sentenced Simmons to
life in prison without the possibility of parole for felony murder while in the
commission of aggravated assault (Count 10), 20 years in prison for the
aggravated assault of Tongol (Count 5), 15 years in prison for one count of
Simmons claims that: (1) the evidence was insufficient to sustain his
convictions; (2) the trial court erred in failing to instruct the jury
completely on corroboration for confessions as required by OCGA §
24-8-823; (3) the trial court erred in instructing the jury as to
Simmons’s flight; and (4) trial counsel rendered constitutionally
ineffective assistance. Because Simmons has not shown reversible
error, we affirm his convictions.
The evidence presented at trial showed that both Lee and
Simmons were members of the “Bloods”2 gang and involved in
violation of the Georgia Street Gang Terrorism and Prevention Act (Count 11),
and 10 years in prison for the other count of violation of the Georgia Street
Gang Terrorism and Prevention Act (Count 12), with each sentence to run
consecutively. The trial court purported to merge Counts 1, 4, and 7 with Count
10 (felony murder predicated on aggravated assault), although Count 7 (felony
murder while in the commission of conspiracy to commit aggravated assault)
was actually vacated by operation of law. See Noel v. State, 297 Ga. 698, 700
(2) (777 SE2d 449) (2015) (explaining that a “defendant found guilty of the
felony murder of the same victim through the commission of more than one
felony may only be sentenced on one felony murder charge, and the remaining
felony murder charges stand vacated by operation of law”).
Simmons filed a timely motion for new trial on February 1, 2017, which
was amended through new counsel on February 15, 2021. After a hearing, the
trial court denied the motion as amended on December 13, 2021. Simmons filed
a timely notice of appeal on January 3, 2022; the case was docketed to the April
2022 term of this Court and submitted for a decision on the briefs.
2 Simmons uses both “Blood” and “Bloods” to describe the gang he is in.
2
trafficking methamphetamine.3 On December 23, 2013, Lee was
driving with his girlfriend, Tongol, to Wayne County to drop off his
children at their mother’s home. Tongol testified that after dropping
off the children, Lee said he had to make a stop and was on the phone
with another person who gave him directions to an abandoned
house. When Lee and Tongol arrived, two armed men approached
either side of the car “asking for money.” Tongol said her purse was
“snatched” from her after she got out of the car. Lee ran in one
direction, and the two men followed him. Tongol ran in the opposite
direction until she found people and asked to use their phone to call
911.4 Tongol told the 911 operator that the men were armed; that
she heard gunshots; and that Lee was likely shot, as she believed
Lee to be unarmed.
3 Simmons admitted to and was consistently open about his membership
in the “Bloods” gang. At trial, Luis Bowden, Lee’s brother, testified that Lee
and Simmons were members of the “Bloods” gang and that the three of them
had trafficked methamphetamine in Jesup. Also, a criminal street gang expert
testified that based on the evidence, he considered Simmons to be a member of
the “Bloods” gang and considered the activities in this case to be consistent
with criminal street gang activity.
4 Audio of Tongol’s 911 call was admitted into evidence and played for
the jury.
3
Wayne County dispatch received a call at 11:49 p.m. on
December 23, 2013, and officers responded to an area known as “the
Hill.” One investigator made contact with Tongol and then at 11:53
p.m. arrived at the abandoned house where Tongol told him she had
left her car. There, the investigator found Lee unresponsive. The
responding paramedic testified that Lee showed no signs of life. A
Georgia Bureau of Investigation (“GBI”) forensic pathologist
performed Lee’s autopsy and testified that there were five bullet
wounds in Lee’s body and that the cause of death was multiple
gunshot wounds.
A GBI special agent who responded to the crime scene around
1:00 a.m. on December 24 testified at trial that Lee’s body was
located on the ground behind the house. The special agent also
testified that he observed items that the coroner removed from Lee’s
pockets, including a bag of green leafy material consistent with
marijuana, a bag of white powder consistent with cocaine, and about
$2,930 in cash. Crime scene photos were admitted into evidence,
including photos of Tongol’s car, her purse and its contents on the
4
ground, and an iPhone found near Lee’s body. A semi-automatic .40-
caliber pistol was found in the car’s glove box. A GBI crime lab
examiner testified that the bullet recovered from Lee’s body was a
.30-caliber metal-jacketed bullet, consistent with being fired from a
.38 Special or .357 Magnum revolver or pistol, but not consistent
with being fired from a .40-caliber semi-automatic weapon.
GBI Investigator Lawrence Kelly was also involved in the
investigation into Lee’s death. During that investigation,
Investigator Kelly talked to Lee’s brother, Luis Bowden, who said
that he was involved in drug distribution in Wayne County with
both Simmons and Lee. Investigator Kelly then turned his
investigation to and began communicating with Simmons. In
January 2014, Investigator Kelly tried to arrest Simmons, but
Simmons fled from his parole officer who was attempting to execute
the arrest warrant. Eventually, Simmons was located in Virginia,
where Investigator Kelly interviewed him on March 1, 2014. This
interview lasted over five hours and the audio was played for the
5
jury at trial almost in its entirety.5
In his recorded interview, Simmons said that he was given
instructions from a higher-ranking Bloods gang member known as
“Bishop,” who was involved with a Mexican drug cartel.6 Bishop
instructed Simmons to contact Lee because Lee owed $41,000 in
relation to the methamphetamine trafficking. Simmons admitted to
being at the crime scene, saying that he traveled alone to meet Lee
in Jesup while Dominique Brown, Simmons’s brother, and Gabe
Frazier drove separately to the same location. At the crime scene,
Simmons instructed Brown and Fraizer to “dog pil[e]” or beat up Lee
and then put Lee on the phone with Bishop. Simmons was supposed
to take Lee to Atlanta to face members of a Mexican cartel who
provided the methamphetamine that Lee was selling and to whom
Lee owed the money. According to Simmons, he instructed Brown
5 Investigator Kelly advised Simmons of his rights under Miranda, and
Simmons signed a waiver of those rights before beginning the interview. See
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
6 Bowden also testified that Bishop was a member of the “Bloods” gang,
was involved in methamphetamine trafficking, and was incarcerated at the
time of the shooting.
6
and Fraizer not to cause permanent physical damage and not to kill
Lee. Simmons also said that if he had known Fraizer and Brown
were going to shoot Lee, he would have stopped it. Simmons further
admitted that, after Brown shot Lee, Simmons disposed of the
firearm by giving it to someone behind a gas station near Atlanta.
Other evidence also supported Simmons’s statement that he
had been at the crime scene. Investigator Kelly testified that a cell
phone from Tongol’s purse was dumped outside of her car. The cell
phone’s number matched the phone number that family members
said belonged to Lee; investigators were unable to determine the cell
phone owner for the last call made on the phone. Simmons told
Investigator Kelly during his interview that on December 23, he was
at “the Beehive” in Liberty County – a gathering place for “Bloods”
members. Then, Simmons drove to his apartment in Wayne County
before driving to “the Hill,” where Lee was shot. Investigator Kelly
retrieved records for cell phones belonging to Simmons and Lee, as
well as from the unknown number from Lee’s recent calls. Then, he
used the times, dates, and cell phone tower locations of each device
7
to create a map of the cell phones’ locations on the night of the
shooting. Simmons’s location, based on the cell phone records, was
consistent with Simmons’s interview statements. Additionally, the
unknown number recovered from Lee’s cell phone was in the area of
the Beehive at the same time as Simmons’s device and then was in
Wayne County around the same time as Simmons’s device. Lee’s
phone and Simmons’s phone were shown to be in the area where Lee
was killed around the same time. Simmons testified that gang
members often share or exchange phones and frequently change
phone numbers.
Tongol testified that she had never met Simmons before. She
further testified that the person who approached the passenger side
of the car, where she sat on the night of the shooting, was masked,
and that she did not “see anybody directly” that night. When asked
if it was Simmons who had a gun on her, she responded that she did
not think Simmons was on her side of the car but that, at the time
of the shooting, she suspected Simmons to be the person on the
driver’s side of the car. However, Tongol did not give an explanation
8
as to why she thought that.
Simmons testified at trial in his own defense and stated that
he lied during his interview with Investigator Kelly and that, when
he asked to call his wife during the interview, he actually called
another member of the “Brims” (a subset of the “Bloods”) known as
“Tee Tee” and was set up on a three-way call with Steven Cortez.
Simmons was following gang protocol when he called Cortez, who
ranked above Bishop in the “Bloods” gang hierarchy. Simmons
testified that, after the phone call with Cortez, he lied to
Investigator Kelly about being at the scene when Lee was killed,
about giving away the gun, and about the whole story he told law
enforcement during his interview. He said that he was supposed to
be the “fall guy” because his “name was already out there,” given
that Lee’s family had posted on Facebook the morning after the
shooting that Simmons killed Lee. He was also supposed to take his
brother, Brown, down with him.
Simmons testified that, unlike what he said in his interview
with Investigator Kelly, he was not present when Lee was shot and
9
was actually at the “Beehive” all night. Simmons also claimed at
trial that, on the night of the shooting, Lee was supposed to bring
Simmons marijuana, but Lee was not answering his phone.7
Simmons testified that Fraizer was notified that Lee was on the way
to Wayne County, and Fraizer, Brown, Cortez, and others left to go
meet with Lee. Simmons claimed that Brown and Fraizer were
present at the shooting, but could not say who the shooter was
because he was not there. Simmons said that he found out about the
shooting later that night. Fraizer, who was not on trial in this case,
was called by the defense as a witness but invoked his Fifth
Amendment right against self-incrimination and did not testify.
1. Simmons asserts that the evidence was insufficient to
sustain his convictions as a matter of constitutional due process. In
reviewing sufficiency, we must determine whether “any rational
7 Bowden testified at trial that in December 2013, he talked to Simmons
who told him he would be meeting with Lee when he was in Wayne County.
Bowden further testified that when he called Simmons the morning after Lee
was shot, Simmons told Bowden that he did not meet up with Lee the previous
night.
10
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 SCt 2781, 61 LE2d 560) (1979) (emphasis in original).
In doing so, “[w]e construe the evidence presented in the light most
favorable to the verdict, and neither reweigh it nor determine
witness credibility.” Terrell v. State, 300 Ga. 81, 84 (1) (793 SE2d
411) (2016).
Simmons was convicted of and sentenced on the following:
felony murder while in the commission of aggravated assault,8
aggravated assault of Tongol by pointing a handgun at her, and two
violations of the Street Gang Terrorism and Prevention Act, OCGA
§ 16-15-4 (a) and (d).9
8 OCGA § 16-5-1(c) provides that a person commits “the offense of murder
when, in the commission of a felony, he or she causes the death of another
human being irrespective of malice.” OCGA § 16-5-21 (2), in turn, sets out that
“[a] person commits the offense of aggravated assault when he or she assaults
. . . [w]ith a deadly weapon . . . .”
9 OCGA § 16-15-4 (a) provides that “[i]t shall be unlawful for any person
employed by or associated with a criminal street gang to conduct or participate
in criminal gang activity through the commission of any offense enumerated
in paragraph (1) of Code Section 16-15-3.” Count 11 of the indictment charged
Simmons with criminal street gang activity by conspiring to commit a criminal
offense that involves violence by committing a simple battery on Lee. See
11
Here, Simmons admitted to and testified about being a member
of the “Bloods” gang, and Bowden testified that he, Lee, and
Simmons trafficked methamphetamine. Although he later recanted,
Simmons further admitted in a statement to Investigator Kelly that
he ordered gang members to beat up Lee, he was present at the
scene when Lee was shot and Tongol was assaulted, and he disposed
of the firearm used in the shooting. Further, a mapping of pertinent
cell phone records corroborated Simmons’s admissions, and Tongol
placed Simmons at the scene of the shooting. This evidence was
more than sufficient for a rational jury to determine that Simmons
was “guilty beyond a reasonable doubt of the crimes of which he was
convicted either as a direct participant or as a party to the crimes
OCGA § 16-15-3 (1) (J) (defining “criminal gang activity” as including the
“conspiracy to commit . . . [a]ny criminal offense in the State of Georgia . . .
that involves violence . . . whether designated as a felony or not, and regardless
of the maximum sentence that could be imposed or actually was imposed”).
OCGA § 16-15-4 (d) provides that “[i]t shall be unlawful for any person
who occupies a position of organizer, supervisory position, or any other position
of management or leadership with regard to a criminal street gang to engage
in, directly or indirectly, or conspire to engage in criminal gang activity.” Count
12 of the indictment charged Simmons with being in a leadership position with
the “Bloods,” a criminal street gang, and conspiring to commit a criminal
offense that involves violence by committing a simple battery on Lee.
12
charged pursuant to OCGA § 16-2-20 (a).”10 Terrell, 300 Ga. at 84(1). See also Thomas v. State, 311 Ga. 573, 575 (1) (858 SE2d 504)
(2021) (“As long as there is some competent evidence, even if
contradicted, to support each fact necessary to make out the State’s
case, the jury’s verdict will be upheld.”); Cash v. State, 297 Ga. 859,
864 (3) (778 SE2d 785) (2015) (“A defendant who lacks knowledge
that his co-defendant possessed the gun that was used to commit an
aggravated assault may nevertheless be party to the aggravated
assault.”). As such, this enumeration fails.
2. Simmons next asserts that the trial court committed two
errors in its instructions to the jury by failing to completely instruct
the jury that a confession must be corroborated as required by
OCGA § 24-8-823 and in instructing the jury on Simmons’s flight.
Because Simmons did not preserve either claim for ordinary
appellate review by objecting at trial, we review only for plain error.
See Rawls v. State, 310 Ga. 209, 218 (4) (850 SE2d 90) (2020). The
10 OCGA § 16-2-20 (a) provides: “Every person concerned in the
commission of a crime is a party thereto and may be charged with and
convicted of the crime.”
13
four prongs of the plain error analysis are set out in State v. Kelly,
290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011), as follows:
First, 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. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error – discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
(Punctuation omitted; emphasis in original.) “The Court need not
analyze all of the elements of the plain error test when the appellant
fails to establish one of them.” Hill v. State, 310 Ga. 180, 194 (11) (a)
(850 SE2d 110) (2020).
(a) Simmons first asserts that the trial court failed to instruct
the jury completely on the principles codified in OCGA § 24-8-823 by
not telling the jury that corroboration of the statements was
“absolutely required” for conviction. We disagree.
14
OCGA § 24-8-823 provides that all admissions “shall be
scanned with care,” and a “confession alone, uncorroborated by other
evidence, shall not justify a conviction.” Simmons argues that the
trial court did not adequately instruct the jury as to these principles
and did not make it clear enough that a confession must be
corroborated.
Simmons cannot show error, much less plain error. The trial
court advised the jury that “a defendant’s out-of-court statement
that is not supported by any other evidence is not sufficient to justify
conviction, even if you believe the unsupported statement” and that
“if you find that there was a statement made by the defendant that
was supported by other evidence, the degree of proof necessary to
convict is that you be satisfied of the guilt of the defendant beyond
any reasonable doubt.” This instruction came directly from Georgia’s
pattern jury instructions in effect at the time of Simmons’s trial. See
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2017),
§ 1.32.70. Because Simmons has not pointed to any authority that
these instructions did not adequately cover the principles that
15
Simmons claims the trial court should have charged even if the
corroboration requirement of OCGA § 24-8-823 were to apply to
Simmons’s statements,11 Simmons has failed to show that the trial
court committed error that is clear or obvious under current law. See
Ash v. State, 312 Ga. 771, 794-95 (5) (a) (865 SE2d 150) (2021) (Trial
court’s failure to give portion of pattern charge on confession-
corroboration was not plain error because Ash “has pointed to no
precedent holding that the omission of this sentence from the
pattern instruction constitutes error under these circumstances.”).
Moreover, even assuming error in failing to provide more
complete instructions on confession-corroboration, there was ample
evidence at trial to corroborate Simmons’s statements, including the
cell phone records and testimony from Tongol, Bowden, and
Investigator Kelly such that it is unlikely that the failure to instruct
more on confession-corroboration affected the outcome of the
proceedings. Thus, we conclude that there was no plain error
11 We do not express any opinion on whether Simmons’s statements are
considered confessions, which must be corroborated under OCGA § 24-8-823,
rather than admissions.
16
because Simmons has failed to show clear and obvious error and that
any purported error affected his substantial rights. See Hooper v.
State, 313 Ga. 451, 457 (2) (870 SE2d 391) (2022) (no plain error
where appellant failed to demonstrate that trial court’s alleged error
in giving “incomplete” confession-corroboration jury charge likely
affected outcome of the trial in light of “ample corroborating
evidence” of his statements); English v. State, 300 Ga. 471, 474 (2)
(796 SE2d 258) (2017) (no plain error where corroboration was not
required for admissions and even if the statements were confessions,
appellant failed to show that the failure to instruct on corroboration
likely affected the outcome of the proceedings because there was
ample evidence to corroborate the statements).
(b) Simmons next asserts that the trial court plainly erred in
instructing the jury that evidence of flight had been introduced and
that the evidence could only be considered if the jury found it more
likely than not that Simmons fled to avoid arrest. See Renner v.
State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990) (It is “error for
a trial court in a criminal case to charge the jury on flight.”).
17
We agree that this instruction was a clear and obvious error.
See Rawls, 310 Ga. at 219 (4) (a) (“Accordingly, the trial court
committed a clear and obvious error by instructing the jury on flight
in disregard of Renner.”). However, Simmons has not shown how the
instruction “affected his substantial rights, meaning that it probably
affected the outcome of the trial.” Id. at 213 (3). There was ample
evidence other than evidence of Simmons’s flight to establish his
guilt, including Simmons’s own admissions and contradicting
testimony, testimony from Tongol, Bowden, Investigator Kelly, and
a criminal street gang expert, and cell phone records mapping out
Simmons’s phone location on the night of the shooting. Therefore,
“[t]here is no reason to believe that this particular instruction
caused the jury to give undue weight to the flight evidence,
particularly given the other strong evidence against Appellant.” Id.
at 219 (4) (a). For these reasons, this enumeration fails.
3. Simmons also asserts that his trial counsel rendered
ineffective assistance on three grounds. To prevail on these claims,
Simmons must prove both that his counsel’s performance was
18
deficient and that he was prejudiced by the deficient performance.
See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052,
80 LE2d 674) (1984). Deficient performance by trial counsel requires
a showing that “counsel’s acts or omissions were objectively
unreasonable, considering all the circumstances at the time and in
the light of prevailing professional norms.” Neal v. State, 313 Ga.
746, 751 (3) (873 SE2d 209) (2022). To show prejudice, “[t]he
defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694 (III) (B).
a. Simmons asserts that his trial counsel rendered ineffective
assistance in failing to object to the jury instruction on confession-
corroboration.
At the motion for new trial hearing, Simmons’s trial counsel
testified that she believed the pattern instruction, as given, was
required and that it was in Simmons’s best interest for the jury to
19
hear that his admissions alone could not be used to convict him.
Moreover, as discussed in Division 2 (a) above, the trial court did not
err in giving this jury instruction. Thus, trial counsel was not
deficient in failing to object. See Durrence v. State, 287 Ga. 213, 218
(2) (a) (695 SE2d 227) (2010) (“Counsel’s failure to make a meritless
objection does not constitute deficient performance.”).
b. Simmons further asserts that trial counsel rendered
ineffective assistance by failing to object to the jury charge regarding
Simmons’s flight.
Although we explained in Division 2 (b) that the trial court
erred in instructing the jury on Simmons’s flight, we also concluded
that Simmons failed to show how this instruction “affected the
outcome of the trial court proceedings.” Kelly, 290 Ga. at 33 (2) (a).
Accordingly, this enumeration also fails. See State v. Newman, 305
Ga. 792, 798 (2) (b) (827 SE2d 678) (2019) (explaining that where
“no harm has come from trial court’s error to give a specific charge,
trial counsel could not have been ineffective for failing to request
such a charge”); Hampton v. State, 302 Ga. 166, 168-69 (2) (805 SE2d
20902) (2017) (equating the prejudice prong of the plain error test with
the prejudice prong for an ineffective assistance claim).
c. Simmons next contends that trial counsel rendered
ineffective assistance in failing to adequately investigate his case.
At the motion for new trial hearing, Simmons claimed that he
gave counsel names of potential witnesses and that trial counsel did
not pursue those leads. However, trial counsel also testified at the
hearing and explained that Simmons did not provide contact
information for these potential witnesses, which Simmons admitted,
arguing that it was the investigator’s job to locate these people and
not his. Trial counsel further testified that the potential witnesses
were mostly gang members who lived a “transient lifestyle” and that
she received threatening phone calls from some of these people,
which the GBI took seriously. The trial court, as finder of fact in a
motion for new trial hearing, was entitled to credit trial counsel’s
testimony as to her efforts to investigate Simmons’s case. See Gray
v. State, 309 Ga. 850, 855 (2) (b) (848 SE2d 870) (2020) (“[T]he
credibility of the witnesses at the motion for new trial hearing was
21
for the trial court to determine[.]”). Also, Simmons failed to make a
proffer as to what an additional investigation would have uncovered
or what the testimony of the uncalled witnesses would have been
and therefore has failed to establish that the trial outcome would
have likely been different with the additional information. See
Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014)
(explaining that appellant cannot prevail on the prejudice prong of
his ineffective assistance claim where he “did not proffer any
uncalled witness or otherwise proffer a legally recognized substitute
for such testimony” at the motion for new trial hearing). Therefore,
to the extent that trial counsel was deficient, Simmons has failed to
show prejudice.
4. Finally, Simmons argues that the count of aggravated
assault of Tongol should have been factually merged into the count
for felony murder of Lee.12
12 Simmons raised this and other additional arguments in his reply brief:
that his sentence was overly burdensome, that trial counsel rendered
ineffective assistance in failing to object to the stacking of charges, and that
there was a lack of accomplice corroboration. Although we consider Simmons’s
22
As recounted in footnote 1, Simmons was convicted of a number
of charges, but several of the charges merged for sentencing
purposes or were vacated by operation of law. The trial court
properly merged the counts alleging conspiracy to commit
aggravated assault of Lee (Count 1) and aggravated assault of Lee
(Count 4) into the felony murder conviction predicated on
aggravated assault (Count 10). See OCGA § 16-4-8.1 (A person “may
not be convicted of both conspiracy to commit a crime and the
completed crime.”); Hinton v. State, 304 Ga. 605, 609 (3) (820 SE2d
712) (2018) (determining that the trial court properly merged the
underlying aggravated assault count into the felony murder
conviction predicated on aggravated assault). And the other felony
murder count (Count 7) was vacated by operation of law. See Noel v.
claim of merger error, these other issues have been waived because they were
not timely raised in his initial appellate brief. See Williams v. State, 307 Ga.
689, 696 n.2 (838 SE2d 314) (2020)(“An appellant who raises an argument for
the first time in a reply brief is not entitled to have that argument
considered.”); Nazario v. State, 293 Ga. 480, 485 (745 SE2d 109) (2013) (“We
held that this customary waiver rule does not apply to merger claims, because
merger as a matter of law or fact renders the conviction void and the resulting
sentence illegal and requires the reviewing court to vacate the conviction and
sentence even if the error was not raised in the trial court and indeed even if
it is not enumerated as error on appeal.”).
23
State, 297 Ga. 698, 700 (2) (777 SE2d 449) (2015) (defendant may
only be sentenced on one felony murder charge when found guilty of
the felony murder of the same victim through the commission of
more than one felony, and the remaining felony murder charges are
vacated by operation of law).
Therefore, the trial court did not err in not merging the
aggravated assault of Tongol (Count 5), a separate victim, into the
conviction for the felony murder of Lee. See Hulett v. State, 296 Ga.
49, 56 (2) (c) (766 SE2d 1) (2014) (“Where two victims are robbed,
the defendant may be charged with, convicted of, and sentenced for
the robbery of each victim.”); Henderson v. State, 285 Ga. 240, 244
(3) (675 SE2d 28) (2009) (“When the underlying felony is committed
upon one victim and the felony murder charged in another count in
the same indictment is committed upon another victim, the
underlying felony does not merge with the felony murder conviction”
and determining that trial court did not err in entering separate
convictions and sentences where defendant was charged with felony
murder of one victim based on armed robbery and armed robberies
24
of other victims); George v. State, 276 Ga. 564, 565 (2) (580 SE2d
238) (2003) (malice murder and aggravated assault counts do not
merge where murder was committed upon one victim and the
aggravated assault was committed upon a different victim).
Judgment affirmed. All the Justices concur.
25