In the Supreme Court of Georgia



                                                 Decided: October 20, 2014


                       S14A0878. MILLER v. THE STATE.


       BLACKWELL, Justice.

       Eric Miller was tried by a Fulton County jury and convicted of murder and

the unlawful possession of a firearm during the commission of a felony, both in

connection with the fatal shooting of Luther Williams. Miller appeals,

contending that the trial court erred when it admitted certain evidence, and

arguing as well that he was denied the effective assistance of counsel. Upon our

review of the record and briefs, we see no error, and we affirm.1



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         Williams was killed on July 31, 2006. Miller was indicted on March 23, 2007 and
charged with malice murder, felony murder, aggravated assault, and unlawful possession of
a firearm during the commission of a felony. His trial commenced on August 21, 2007, and
the jury returned its verdict two days later, finding him guilty on all counts. Miller was
sentenced to a term of imprisonment for life for malice murder and a consecutive term of
imprisonment for five years for unlawful possession of a firearm during the commission of
a felony. The verdict as to felony murder was vacated by operation of law, Malcolm v. State,
263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the aggravated assault merged with
the malice murder. Miller timely filed a motion for new trial on August 30, 2007, and he
amended it on April 19, 2013. The trial court denied his motion on November 5, 2013. Miller
timely filed a notice of appeal on November 15, 2013, and the case was docketed in this
Court for the April 2014 term and submitted for decision on the briefs.
      1. Viewed in the light most favorable to the verdict, the evidence shows

that Miller encountered Williams at an Atlanta apartment complex on the

evening of July 31, 2006. The two men argued about money — Miller claimed

that Williams was indebted to Miller — and in the course of that argument,

Miller pulled out a handgun, fired into the ground, and began to chase Williams,

firing additional shots at Williams as they ran. Eventually, Miller stopped, took

aim, and shot Williams in the back of his head. Williams died as a result of his

gunshot wound. Two eyewitnesses — both of whom knew Miller personally —

identified Miller as the shooter, and Miller confessed to his girlfriend that he

shot Williams after they argued about money. Miller does not dispute that the

evidence is legally sufficient to sustain his convictions, but consistent with our

usual practice in murder cases, we have independently reviewed the evidence to

assess its sufficiency. We conclude that the evidence was legally sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt that Miller

was guilty of the crimes of which he was convicted. See Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

      2. Miller contends that the trial court erred when it permitted a police

officer to testify that investigators identified someone known as “Little E” as a

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suspect in the shooting. Officer Shaun Houston, the first police officer to

respond to the scene of the shooting, testified at trial, and when he started to

mention what a civilian at the scene had said, Miller objected on hearsay

grounds, and the trial court sustained the objection. Later, Houston testified that

investigators identified a suspect in the course of their investigation. The

prosecuting attorney then asked Houston whether the investigators had “[gotten]

a name,” and Miller again objected. At that point, the trial court cautioned the

prosecuting attorney to tread carefully, and the prosecuting attorney then

rephrased his question, asking Houston about the identity of the person

suspected at that time by investigators. Houston responded: “The suspect [went

by an] alias [of] ‘Little E.’ We had nothing else to go on.” Miller did not object

to the rephrased question, nor to the testimony that Houston gave in response to

it. Miller now argues, however, that the testimony about the identification of

“Little E” as a suspect implied that witnesses at the scene had identified “Little

E” as the shooter, that it amounts to hearsay, and that its admission was

reversible error.

      Miller is wrong for several reasons. First, he did not object to the

testimony about which he now complains, and he has failed to preserve the issue

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for appeal. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012).

Second, even if Miller had objected, Officer Houston did not say or necessarily

imply that any witness had identified “Little E,” only that investigators

considered “Little E” a suspect. Cf. McKenzie v. State, 271 Ga. 47, 48 (2) (518

SE2d 404) (1999). Finally, even to the extent that Houston implied by his

testimony that a witness had identified “Little E” as the shooter, any error in the

admission of that testimony would have been harmless. Not only did Houston

never testify that any witness had identified “Little E” as the shooter, but he also

never testified that Miller was known as “Little E.” Accordingly, nothing that

Houston said “directly inculpated” Miller. See id. An eyewitness to the shooting

testified at trial that “Little E” was the shooter, and other witnesses identified

Miller as “Little E.” Moreover, eyewitnesses specifically identified Miller as the

shooter, and that testimony, as well as the testimony that Miller confessed to his

girlfriend that he shot Williams, renders it highly probable that any erroneously

admitted testimony about “Little E” having been identified as a suspect did not

contribute in any meaningful way to the verdict. See id. at 49 (2). See also

Weems v. State, 269 Ga. 577, 579 (2) (501 SE2d 806) (1998).



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      3. Miller also contends that the trial court erred when it admitted

testimony that Williams was working two jobs to help support his family, with

whom he had relocated to Atlanta in the aftermath of Hurricane Katrina.

According to Miller, this testimony amounts to “victim impact” evidence that

was unfairly prejudicial. But at trial, Miller did not object to the testimony on

the grounds that it was impermissible “victim impact” evidence or unfairly

prejudicial. Accordingly, Miller failed to preserve for appellate review the claim

of error that he now urges. See Colon v. State, 275 Ga. App. 73, 75 (2) (619

SE2d 773) (2005); Holmes v. State, 271 Ga. App. 122, 124-125 (4) (608 SE2d

726) (2004); Shelton v. State, 251 Ga. App. 34, 38-39 (4) (553 SE2d 358)

(2001).

      4. Miller also claims that he was denied the effective assistance of counsel

at trial. To prevail on a claim of ineffective assistance, Miller must prove both

that the performance of his lawyer was deficient and that he was prejudiced by

this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III)

(104 SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his

lawyer was deficient, Miller must show that she performed her duties at trial in

an objectively unreasonable way, considering all the circumstances, and in the

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light of prevailing professional norms. Id. at 687-688 (III) (A). See also

Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d

305) (1986). And to prove that he was prejudiced by the performance of his

lawyer, Miller must show “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). See also Williams v. Taylor,

529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389) (2000). This burden is

a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C). We conclude that Miller

has failed to carry his burden.

      (a) Miller contends that his trial lawyer was ineffective because she failed

to call his mother as a witness at trial. His mother could have testified, he

contends, that Miller cut off his “dreadlocks” four days before the murder,

which would have contradicted eyewitness testimony that Miller had dreadlocks

at the time of the shooting. But decisions about which witnesses to call at trial

“are matters of trial strategy and tactics, and such strategic and tactical decisions

do not amount to deficient performance unless they are so unreasonable that no

competent attorney would have made them under similar circumstances.”

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Washington v. State, 294 Ga. 560, 566 (3) (755 SE2d 160) (2014) (citations

omitted). See also Gibson v. State, 290 Ga. 6, 12 (6) (b) (717 SE2d 447) (2011).

At the hearing on the motion for new trial, Miller’s trial lawyer explained that,

although she did not recall exactly why his mother was not called as a witness,

the lawyer thought that there were some issues about precisely when Miller cut

off his dreadlocks. Another lawyer who represented Miller before trial (but was

on medical leave during the trial) testified that there was, in fact, some

discrepancy as to exactly when the dreadlocks were removed, and Miller’s

lawyers did not want the State to be able to argue that Miller cut off his

dreadlocks right after the crime in an attempt to “change his identity.” The trial

court credited the testimony of the lawyers, and in light of that testimony, we

cannot say that their concerns about evidence that Miller cut off his dreadlocks

around the time of the shooting were unreasonable. That trial counsel did not

call the mother and thereby open the door to argument about Miller having

sought to change his appearance does not amount to ineffective assistance. See

Carey v. State, 281 Ga. App. 816, 818-819 (2) (637 SE2d 757) (2006).

      (b) Miller also argues that his trial lawyer was ineffective because she

failed to object to the admission of triple hearsay or move for a mistrial when

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Detective Danny Agan testified that Officer Houston told Agan at the scene that

a local resident said he had heard that “Little E” did it. Assuming that this

evidence was inadmissible under former OCGA § 24-3-2, Miller has not shown

how he was prejudiced. See Whitaker v. State, 269 Ga. 462, 465 (4) (b) (499

SE2d 888) (1998). The evidence of which Miller complains was cumulative of

the eyewitness testimony, including the eyewitness identification of “Little E”

as the shooter, as well as Miller’s confession to his girlfriend and the

identification of Miller as “Little E” by other witnesses. See Division 2, supra.

Accordingly, the evidence supports the trial court’s conclusion that there is no

reasonable probability that the failure of Miller’s lawyer to object to Detective

Agan’s testimony affected the outcome of the trial. See Maurer v. State, 320 Ga.

App. 585, 592 (6) (b) (740 SE2d 318) (2013). See also Morris v. State, 284 Ga.

1, 4 (3) (662 SE2d 110) (2008).

      Judgment affirmed. All the Justices concur.




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