Scott v. State ( 2023 )

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: December 19, 2023
S23A0861. SCOTT v. THE STATE.
BOGGS, Chief Justice.
Appellant Milton Nathaniel Scott challenges his convictions for
felony murder and other crimes in connection with the shooting
death of Jerrica Porter. Appellant contends that the trial court erred
in admitting into evidence one of his custodial statements in which
he admitted to shooting Porter but claimed the shooting was an
accident. He also contends that the trial court abused its discretion
in overruling a hearsay objection to testimony that characterized his
initial statement that Porter shot herself as implausible and that
his trial counsel was constitutionally ineffective in failing to object
to testimony and evidence that suggested Appellant was involved in
a gang.1
Appellant’s claims fail. Regardless of whether there was error
in the admission of the custodial statement, the State introduced
into evidence a recording of a jailhouse phone call in which
Appellant repeated his claim that his shooting of Porter was an
accident, and thus Appellant has failed to show harm from the
admission of the statement. Additionally, because Appellant’s
defense was accident and because the admission of the hearsay
testimony and the evidence to which trial counsel did not object was
1 The crimes occurred on February 10, 2019. On May 9, 2019, a Greene
County grand jury indicted Appellant for malice murder; felony murder based
on aggravated assault; involuntary manslaughter; tampering with evidence;
and cruelty to children in the third degree. At a trial from April 12 to 16, 2021,
the jury acquitted Appellant of malice murder and found him guilty of felony
murder, tampering with evidence, and cruelty to children. After the jury
returned its verdict, the trial court granted the State’s pretrial motion to nolle
pros the involuntary manslaughter count. The trial court sentenced Appellant
to serve life in prison with the possibility of parole for felony murder and two
consecutive terms of twelve months each for tampering and for cruelty to
children. Appellant filed a timely motion for new trial, which he amended with
new counsel on July 20, 2022. After an evidentiary hearing on August 15, 2022,
the trial court entered an order denying the motion on February 16, 2023.
Appellant filed a timely notice of appeal, and the case was docketed in this
Court to the August 2023 term and submitted for a decision on the briefs.
2
not relevant to that defense, these enumerations do not require
reversal. Accordingly, we affirm.
1. The evidence presented at trial showed the following. 2
Appellant and Porter started dating in 2018. On the morning of
February 10, 2019, Appellant, Porter, and Porter’s five-year-old son
J.P. were at Porter’s home. Porter spoke on the phone with a friend
at 10:32 a.m. and asked her friend to come over later that day.
Shortly thereafter, Appellant fatally shot Porter in her bedroom.
After shooting Porter, Appellant ran to his mother’s home, which
was about 180 feet away, borrowed a cell phone, and ran back to
Porter’s home, where he saw J.P. standing over Porter. At 10:45
a.m., Appellant called 911 and told the operator that his girlfriend
had been playing with a gun and accidentally shot herself in the
chest. Appellant repeated that explanation to Officer Michael
2 Because of the harmless-error analysis undertaken in Divisions 2 and
3, we set out the evidence in detail and “weigh the evidence as we would expect
reasonable jurors to have done so as opposed to viewing it all in the light most
favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263, 264 n.2 (882 SE2d
227) (2022) (cleaned up).
.
3
Greeson, a Union Point police officer, who was the first officer to
arrive in response to the 911 call. Greeson saw Porter lying face
down in the bedroom and a nine-millimeter semiautomatic handgun
on the floor near her. Greeson cleared one unspent round from the
gun’s chamber and collected the gun as evidence.
Appellant also told a medical first responder and Deputy
Robert McCannon, Sr., an officer with the Greene County Sheriff’s
office, that Porter had shot herself. Video footage from Deputy
McCannon’s body camera showed Appellant making several
statements about the incident. Appellant said that Porter was
playing with his gun and waving it around; that he told her to stop;
that she then turned it toward the wall and asked if it would shoot;
then she turned it toward herself and asked if it would shoot; and
then she pulled the trigger. He also said that he and Porter often
played with the gun; that they were watching television that
morning when she picked up the gun; and that he told her it was
loaded. During the interview, Appellant demonstrated how Porter
shot herself by holding his arms straight out in front of him as if he
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had a gun pointed toward his chest and pulled the trigger using his
thumbs.
Appellant was subsequently interviewed by GBI Agent Niki
Simmons. Portions of the video-recordings of two interviews and an
audio-recording of a third interview were played at trial. During the
first interview, which took place the day of the shooting, Appellant
repeated the same story and gave the same demonstration that he
had provided to Deputy McCannon. However, he also suggested that
on the day of the shooting, Porter was upset about not being hired
for a job she wanted and stated that he and Porter had previously
play-acted killing themselves with the gun. He also stated that after
Porter shot herself, he picked up the gun and wiped it off with his
shirt because he was scared and he knew “how it gonna would look.”
In the second interview, which occurred the following day and
after Appellant had been arrested on a tampering-with-evidence
charge based on his admission that he wiped off the gun, he repeated
the story that Porter had been playing with the gun, held it out in
front of her, and pulled the trigger with her thumb, shooting herself
5
in the chest. However, he also said he tried to grab the gun as Porter
was pointing it at herself, and, without touching the gun, he bumped
her hand before the gun discharged.
About a week later, on February 18, 2019, Appellant was
questioned by Agent Simmons and GBI Special Agent Mike Maybin;
this interview was audio-recorded only. 3 In this interview, Appellant
told the agents that he took the gun from Porter after she had
pointed it at herself; he began waving the gun around; he pointed it
at her and pulled the trigger but did not know the gun was loaded.
Agent Simmons testified that during this statement, Appellant
demonstrated pointing the gun at Porter from a distance of about
five feet. At the conclusion of the interview, Appellant asked the
agents if, “in the courtroom, could y’all please make it look like I did
not just straight up shoot her or nothing like that — it was a straight
accident.”
Porter’s parents and several friends and neighbors testified
3 Appellant’s contention that the trial court erred in admitting this
statement is addressed in Division 2.
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about Porter’s psychological state, including in the days leading up
to the shooting. According to the testimony of these witnesses,
Porter was excited about starting a new job with the United States
Postal Service and being able to return to college to complete her
degree and that she gave no indication of being suicidal. Other
witnesses testified about the relationship between Appellant and
Porter. According to several witnesses, Appellant and Porter argued
occasionally and Appellant punched holes in the walls of Porter’s
home during these arguments. One of Porter’s close friends testified
that on more than one occasion, she heard Appellant tell Porter he
would kill her and then laugh and say he was only joking. However,
one friend testified that Appellant and Porter seemed like a happy
couple. The State also introduced into evidence an undated note
found in Porter’s car, in which Appellant wrote that he was leaving
Porter and moving to Athens; that he loved her but could not remain
with her; that he was sorry “for what I did to you”; and that he could
not understand why she had made posts on Facebook that were
hurtful to him.
7
J.P., who was seven years old at the time of trial, testified as
follows. Appellant and Porter argued sometimes, and on the
morning of the shooting, Appellant was “mad”; Appellant left the
home and returned with “a gun in his pocket” and entered Porter’s
bedroom; Appellant and Porter began arguing; Appellant said he
“was tired of this”; and Appellant “was mad and he shot my mom.”
J.P. explained that after he heard a gunshot and the sound of the
door being opened, he saw Porter and a gun on the floor, and he
began to shake her, but she did not wake up. Appellant told him to
go to his room and said, “[I]f anyone [asks] you where you was, you
tell them you were outside.” Appellant then left the room but came
back in with a cell phone and called the police.
A forensic interviewer who conducted a video-taped interview
with J.P. about a week after the shooting testified that children
J.P.’s age are not able to tell a story chronologically, and when
interviewing J.P., she was not always able to tell whether he was
talking about one event or more than one event. During the
interview, which was played for the jury, J.P. said his mother was
8
dead, and in response to the interviewer’s request to say more about
that, he said that Porter was playing with a gun, but he also
repeatedly said that Appellant was holding the gun or that
Appellant fired the gun. After the shooting, Appellant went outside
to get a phone and called police. After Appellant called the police,
J.P. went outside with Appellant; Appellant told another man who
had come over that Porter “had blasted herself.” J.P. told the
interviewer he thought his “Momma blasted her own self” and that
happened because she was arguing with Appellant about Appellant
leaving and Porter not wanting him to go. J.P. described being in
various places in the home when the shooting occurred, including
under the bed in Porter’s room, outside Porter’s room, and in his own
room.
The medical examiner who performed Porter’s autopsy
determined that Porter died as a result of a single gunshot wound to
the torso; that the bullet moved in a downward direction at a 45-
degree angle and from left to right, not “straight”; that Porter was
likely leaning forward when she was shot; and that based on the
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presence of stippling and the absence of soot around the wound, the
gun was approximately two to four feet away from Porter when it
was fired.
A GBI firearms examiner determined that, based on his
analysis of the shirt Porter was wearing, the bullet hit Porter at an
angle rather than straight on, and that the muzzle of the gun was
approximately two feet from Porter when it was fired. Additionally,
the nine-millimeter gun collected as evidence from the scene4 would
not discharge if dropped; a person would have to pull the trigger in
order for the gun to discharge; and it would take at least four-and-
a-half pounds of pressure to fire the gun.
The State introduced into evidence a recording of a phone call
that Appellant made from jail to his mother during the trial. In that
call, Appellant told his mother that he did shoot Porter, but it was
an accident.5 He further explained that Porter had been playing
4 The firearms examiner testified that he was unable to determine if the
fatal bullet was fired from the gun found at the scene.
5 In opening statements, Appellant’s trial counsel told the jury that
Appellant “doesn’t deny having the gun” and that the shooting was “a tragic,
tragic accident.”
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with the gun; he took the gun from her so she would stop playing
with it; he then started playing with it; and the gun “went off.” He
also told his mother that when he gave his first statements to law
enforcement, he was “traumatized” and could not “get it that she
was gone because of me.”
At trial, Appellant testified that he and Porter argued
occasionally and that he sometimes punched holes in the walls
during their arguments but that he never hit Porter. He
acknowledged that about three to four weeks before Porter’s death,
he wrote the note that was found in her car, but he testified he never
actually left her, and their relationship continued. According to
Appellant, he had purchased the gun from Porter about one month
before for $20. On the morning of the shooting, Porter started
playing with the gun; he told her to stop playing with it; and he told
her it was loaded. He continued:
But the only reason why I really said that, was because I
didn’t want to play with the gun that morning. So, I’m
figuring she - - if I told her there’s one in the head, she’ll
put it down. So I went to go get the gun from her. So, out
of nowhere, I started playing with the gun, too. And I was
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waiving [sic] it around. And I was, like, if somebody kick
your door and they tell you; get on the ground, get your
ass on the ground. What would you do? And she was, like,
[“]I ain’t - - I ain’t gonna run.[”] I mean, I’m gonna run. I
was, like, so if you tell me somebody come in here and tell
you; get your ass on the ground - - pow, then the gun go
off. And then when the gun goes off, like, everything
happened so fast. Like, I knew the gun go went off, but I
didn’t know it hit her. But, so I’m thinking she was
playing when she grabbed her chest[.]
He further testified that he did not keep the gun loaded and believed
the gun was unloaded at the time of the shooting and had the safety
on. Appellant also testified that he “hang[s] around gang members”
but is not in a gang.
2. Appellant contends that the trial court erred in admitting
his February 18 statement in which he admitted to firing the fatal
shot but claimed he did so accidentally. 6 He asserts that the agents
continued to interrogate him after he had invoked his right not to
speak with the agents and that the statement was obtained in
violation of his right to remain silent under the Fifth Amendment to
6 Appellant does not challenge the admission of his other statements to
Agent Simmons or the recording of his jailhouse call to his mother.
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the United States Constitution. 7
We have repeatedly made “clear that, when a person in the
custody of law enforcement officers unambiguously and
unequivocally invokes his right to remain silent in connection with
their interrogation, the interrogation must cease immediately.”
Ensslin v. State, 308 Ga. 462, 470 (841 SE2d 676) (2020) (cleaned
up); Mack v. State, 296 Ga. 239, 242 (765 SE2d 896) (2014) (“[W]hen
an individual in custody “‘indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease.’” (quoting Miranda v. Arizona, 384 U.S.
436, 473-474 (86 SCt 1602, 16 LE2d 694) (1966)). “Interrogation”
means express questioning as well as “any words or actions on the
part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit
7 In a pretrial ruling denying Appellant’s motion to suppress his
February 18 statement, the trial court ruled that Appellant did not make a
clear or unequivocal invocation of his right to remain silent. In its order
denying the motion for new trial, the trial court relied on a different rationale,
ruling that Appellant invoked his right to remain silent but reinitiated the
interview such that his statements were admissible.
13
an incriminating response from the suspect.” State v. Brown, 287
Ga. 473, 476-477 (697 SE2d 192) (2010) (cleaned up). If, after officers
scrupulously honor a suspect’s invocation of his right to silence, the
suspect initiates further conversation with law enforcement officers,
the latter statement is admissible. See Mack, 296 Ga. at 244.
However, “a suspect will be considered to have ‘initiated’ renewed
contact with law enforcement authorities, so as to permit further
interrogation, only if the renewed contact by the suspect was not the
product of past police interrogation conducted in violation of the
suspect’s previously-invoked rights.” Id. at 248.
A trial court commits an error of constitutional magnitude
when it admits into evidence over the defendant’s objection a
statement taken in violation of his right to silence. See Ensslin, 308
Ga. at 470. But the error in the admission of such a statement may
be deemed harmless “if the State can prove beyond a reasonable
doubt that the error did not contribute to the verdict, such as when
the evidence at issue is cumulative of other properly admitted
evidence.” Id. at 471 (cleaned up). See also Taylor v. State, 312 Ga.
141, 10-11 (860 SE2d 470) (2021) (presumed erroneous admission of
statement taken after invocation of defendant’s right to counsel was
harmless beyond a reasonable doubt where statement was
cumulative of statements made after defendant had been advised of
Miranda rights and had not invoked right to counsel).
With these principles in mind, we turn to the relevant facts of
Appellant’s February 18 interview with Agents Simmons and
Maybin. At the beginning of the interview, Appellant said he did not
want to talk to the agents again. After Agent Maybin advised
Appellant of his Miranda rights and asked Appellant if he was
willing to speak with the agents, Appellant again said, “No.” Agent
Maybin acknowledged that it was Appellant’s right not to talk to
them; Agent Simmons told Appellant that she would “document that
you refused to talk today”; and Agent Simmons wrote “refused” on
the waiver of rights form. Thereafter, the agents continued to speak
to Appellant for several minutes, with Agent Simmons repeatedly
telling Appellant that she knew he was lying and Agent Maybin
telling Appellant that “we’re trying to help you help yourself” and
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that unless he told the truth “all these people in this community are
gonna think you’re a coldblooded damn killer.” Ultimately,
Appellant agreed to talk to the agents and signed a written waiver
of his rights and provided the statement detailed above.
Assuming without deciding that the agents violated
Appellant’s constitutional rights by continuing to speak to him after
he had invoked his right to silence and that Appellant did not
reinitiate the conversation, we conclude that any error in the
admission of the statement was harmless beyond a reasonable
doubt. Although Appellant asserts that the admission of the
statement was harmful because the February 18 statement was the
first one in which he admitted he was holding the gun and pulled
the trigger, he does not explain how the fact that the February 18
statement was the first time he admitted holding the gun renders
the admission of the statement prejudicial beyond a reasonable
doubt.
As detailed above, the February 18 statement was consistent
with the admissions Appellant made in the phone call to his mother.
16
In the February 18 statement, Appellant admitted that he was
holding the gun when it discharged but claimed it was an accident.
In the jailhouse call to his mother, the recording of which was
admitted into evidence without objection, he also admitted that he
shot Porter but claimed that his firing of the gun was accidental.
The statements were consistent with one another, were not
inconsistent in any material respect, and were consistent with
Appellant’s defense at trial. Moreover, the properly admitted
evidence of Appellant’s guilt, as described in Division 1, was very
strong, and there was no forensic evidence or other witnesses’
testimony supporting Appellant’s defense of accident. Thus, we
conclude that the admission of the February 18 statement was
harmless beyond a reasonable doubt. See Ensslin, 308 Ga. at 472;
Frazier v. State, 278 Ga. 297, 298 (602 SE2d 588) (2004) (holding
that even if there was constitutional error in admission of custodial
statement, admission was harmless beyond a reasonable doubt
where custodial statement merely repeated non-custodial
admissions to first officer on the scene). Accordingly, the admission
17
of the February 18 statement does not require reversal.
3. Appellant also contends the trial court abused its
discretion in allowing GBI Special Agent Skylar Reese to testify,
over a hearsay objection, to a statement made by the medical
examiner during the autopsy. Agent Reese was present when the
autopsy was conducted, and when he explained to the medical
examiner that Appellant had said Porter shot herself with her arms
held straight out, the medical examiner responded, “[I]t couldn’t
have happened that way.” Assuming without deciding that the trial
court abused its discretion in admitting the medical examiner’s
statement through Agent Reese, any error was harmless. A non-
constitutional error is harmless if “it is highly probable that the
error did not contribute to the verdict.” Anglin v. State, 302 Ga. 333,
341 (806 SE2d 573) (2017). Here, Agent Reese’s recounting of the
medical examiner’s comment was cumulative of direct testimony
from the medical examiner and the firearms examiner that
contradicted Appellant’s assertion in his initial statements that
Porter had shot herself by holding the gun with her arms straight
18
out and pointed directly at her chest. Specifically, both the medical
examiner and the firearm examiner testified that the gun was
pointed at an angle when it discharged. That meant that Porter
could not have held the gun “straight out,” as Appellant originally
told law enforcement—which was the crux of the medical examiner’s
statement during the autopsy. Accordingly, there was no harm from
Agent Reese’s testimony. 8 See Anglin, 302 Ga. at 336 (holding that
“erroneous admission of hearsay is harmless where substantial,
cumulative, legally admissible evidence of the same fact is
introduced”). Moreover, Appellant’s defense at trial was that he shot
Porter accidentally, not that Porter shot herself. So the medical
examiner’s statement that the shooting “couldn’t have happened” in
the manner Appellant initially claimed was not inconsistent with
that defense . See Allen v. State, 259 Ga. 303, 304 (379 SE2d 513)
(1989) (holding that improper admission of hearsay testimony was
harmless where it was not inconsistent with the defense’s theory of
8 Appellant makes no argument that the admission of Agent Reese’s
testimony was prejudicial because it caused him to alter his defense.
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justification). 9 Accordingly, this enumeration of error is without
merit.
4. Finally, Appellant contends that his trial counsel was
constitutionally ineffective for failing to object to evidence and
testimony that potentially raised an inference that Appellant was a
member of a gang. To establish that his trial counsel was
constitutionally ineffective, Appellant must prove both deficient
performance by his counsel and resulting prejudice. See Strickland
v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984). To establish deficient performance, Appellant must show
that his attorney’s acts or omissions were “objectively unreasonable
. . . considering all the circumstances and in the light of prevailing
professional norms.” Davis v. State, 299 Ga. 180, 182-183 (787 SE2d
221) (2016). To establish the required prejudice, Appellant must
show that but for his attorney’s unprofessional errors, there is a
9 Although Allen was decided under the old Evidence Code, and this case
was tried under the new Evidence Code, the harmless error doctrine applicable
remains the same. See Smith v. State, 299 Ga. 424, 431-432 (788 SE2d 433)
(2016).
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reasonable probability that the result of the proceeding would have
been different. See id. at 183. However, an appellate court “need not
address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. (cleaned up).
Appellant asserts trial counsel should have objected to portions
of Agent Reese’s testimony and to documents from Appellant’s
Facebook account admitted into evidence during that testimony.
The documents from Appellant’s Facebook account showed that
Appellant’s “screen name” was “SlimeBall Scott” and contained
comments posted by two individuals, Jalyric Wright and “Hothead
Ru.” The comments from these individuals included a statement
that one of them needed a “poxhet monster,” to which Appellant
responded “I ain’t got nun But one.” In a similar comment, one of
the individuals said he heard that Appellant had a “lil 9” and asked
if Appellant was looking to get rid of it, to which Appellant
responded he was going to keep it. Agent Reese testified that the
references to a “poxhet monster” and “lil 9” referred to a pistol and
a nine-millimeter caliber firearm, respectively, and that certain
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terminology used by the other individuals in the Facebook posts
referred to a “blood subset.”
Trial counsel testified at the motion for new trial hearing that
he did not believe that the comments by the other individuals on
Appellant’s Facebook page “had anything to do with any of the facts
concerning this case,” that the gang references were not made by
Appellant, and that there was no other evidence that Appellant was
in a gang.
Assuming without deciding that trial counsel was deficient, we
agree with the trial court that Appellant failed to establish
prejudice. The Facebook posts and testimony about Appellant
owning a gun are cumulative of Appellant’s testimony that he owned
the nine-millimeter gun. And, as noted above, Appellant’s defense
was accident, and the brief references in Agent Reese’s testimony
and the Facebook posts to gang-related terminology had a tenuous-
at-best connection to proving or disproving the shooting was
accidental. Additionally, Appellant admitted in his testimony that
he knew gang members, and the prosecutor made no reference in
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the opening or closing argument to Appellant’s alleged gang
affiliation. Accordingly, Appellant has failed to meet his burden of
establishing prejudice. See Turner v. State, 308 Ga. 537, 541 (842
SE2d 40) (2020) (determining that appellant failed to show prejudice
stemming from counsel’s failure to ensure that reference to
defendant’s membership in a gang was redacted from letter
admitted into evidence where there was no evidence that the crime
was gang-related, the State’s theory of the case did not relate to gang
activity, and the prosecutor did not rely on gang activity in
arguments to the jury). For these reasons, Appellant’s claims of
ineffective assistance of trial counsel are without merit.10
10 In our analysis, we have assumed two trial court errors of an
evidentiary nature and determined that each error was harmless. And we have
assumed deficient performance by trial counsel but determined that Appellant
failed to demonstrate prejudice. Appellant has made no argument that we
should conduct a cumulative error review. See State v. Lane, 308 Ga. 10, 18
(838 SE2d 808) (2020) (“a defendant who wishes to take advantage of the
[cumulative error rule] should explain to the reviewing court just how he was
prejudiced by the cumulative effect of multiple errors”). Nevertheless, we
conclude that Appellant has failed to establish that the combined prejudicial
effect of these assumed trial court errors and assumed deficient performance
of trial counsel denied him a fundamentally fair trial. See, e.g., Huff v. State,
315 Ga. 558, 568 (883 SE2d 773) (2023) (rejecting cumulative error claim
“because Appellant has not demonstrated that the prejudicial effect of the
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Judgment affirmed. All the Justices concur.
assumed trial court errors and ineffective assistance denied him a
fundamentally fair trial”).
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