MOORE v. THE STATE (Two Cases)

M
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

                                  5
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

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