Scott v. State

FINAL COPY

                   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


      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,
      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

not relevant to that defense, these enumerations do not require

reversal. Accordingly, we affirm.

      1.    The evidence presented at trial showed the following.2



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 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

                                        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

Greeson, a Union Point police officer, who was the first officer to

arrive in response to the 911 call. Officer Greeson saw Porter lying

face down in the bedroom and a nine-millimeter semiautomatic

handgun on the floor near her. Officer Greeson cleared one unspent



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, 

, 264 n.2 (

) (2022) (cleaned up).
      .

                                       3
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

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

                                  4
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

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

                                  5
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

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



     3 Appellant’s contention that the trial court erred in admitting this
statement is addressed in Division 2.
                                    6
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.

     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

                                  7
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 anybody [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

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

                                  8
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

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

                                  9
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 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


     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.”
                                    10
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 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

                                   11
      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

the United States Constitution.7

      We have repeatedly made “clear that, when a person in the


      6 Appellant does not challenge the admission of his other statements to

Agent Simmons or the recording of his jailhouse call to his mother.
      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.
                                       12
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, 

 (

) (2020) (cleaned

up); Mack v. State, 

 (

) (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, 

 (

, 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

an incriminating response from the suspect.” State v. Brown, 

 (

) (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, 

.

However, “a suspect will be considered to have ‘initiated’ renewed

                                  13
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.” 

.

     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, 

. 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.” 

 (cleaned up). See also Taylor v. State, 

 (

) (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

                                 14
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

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

                                 15
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.

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

                                16
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, 

;

Frazier v. State, 

 (

) (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

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

                                  17
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, 

 (

) (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

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

                                  18
harm from Agent Reese’s testimony.8 See Anglin, 

(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, 

 (

)

(1989) (holding that improper admission of hearsay testimony was

harmless where it was not inconsistent with the defense’s theory of

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




     8  Appellant makes no argument that the admission of Agent Reese’s
testimony was prejudicial because it caused him to alter his defense.
      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, 

 (

)
(2016).
                                     19
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, 

 (

, 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, 

 (

) (2016). To establish the required prejudice, Appellant must

show that but for his attorney’s unprofessional errors, there is a

reasonable probability that the result of the proceeding would have

been different. See 

. However, an appellate court “need not

address both components of the inquiry if the defendant makes an

insufficient showing on one.” 

 (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.

                                 20
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 “poxket monster,” to which Appellant

responded “I ain’t got nun [b]ut 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 “poxket monster” and “lil 9” referred to a pistol and

a nine-millimeter caliber firearm, respectively, and that certain

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

                                 21
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

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, 

 (

) (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

                                22
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

      Judgment affirmed. All the Justices concur.




      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, 

(

) (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,

 (

) (2023) (rejecting cumulative error claim
“because Appellant has not demonstrated that the prejudicial effect of the
assumed trial court errors and ineffective assistance denied him a
fundamentally fair trial”).
                                       23
                    Decided December 19, 2023.

     Murder. Greene Superior Court. Before Judge Massey.

     David J. Walker, for appellant.

     T. Wright Barksdale III, District Attorney, Allison T. Mauldin,

Jeff P. Burks, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Emily R. Polk,

Assistant Attorney General, for appellee.




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