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official text of the opinion.
In the Supreme Court of Georgia
Decided: April 18, 2023
S23A0314. WILLIAMS v. THE STATE
COLVIN, Justice.
Appellant Brandon Williams was convicted of malice murder
in connection with the February 2016 shooting death of Kavozia
Walker. 1 On appeal, Appellant contends that (1) insufficient
1 Walker died on February 19, 2016. On May 25, 2016, a Coffee County
grand jury indicted Appellant for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), and possession of a firearm by a
convicted felon (Count 3). The trial court bifurcated the firearm-possession
charge and held a jury trial on the murder counts from March 20 through 23,
2017. At trial, the jury found Appellant guilty of malice murder and felony
murder. The firearm-possession charge was then nolle prossed. The trial court
imposed a sentence of life in prison without the possibility of parole for malice
murder (Count 1). The trial court did not impose a sentence on the felony
murder count based on its determination that the felony murder count merged
into the malice murder conviction. But see Malcolm v. State, 263 Ga. 369, 375
(5) (434 SE2d 479) (1993) (“When valid guilty verdicts are returned on both
alternative counts of malice and felony murder, the alternative felony murder
count is vacated by operation of [law].”). On March 31, 2017, Appellant’s trial
counsel timely filed a motion for new trial, which was amended through new
counsel on November 4, 2021, and June 2, 2022. The trial court held a hearing
on the amended motion on June 3, 2022, and denied the motion on June 30,
2022. Appellant filed a timely notice of appeal. The case was docketed to the
evidence supported his conviction; (2) the trial court erred in
imposing a recidivist sentence of life imprisonment without the
possibility of parole, rather than exercising its discretion to consider
a life-with-parole sentence for murder; and (3) the trial court erred
in merging the felony-murder count into the malice-murder count
for sentencing purposes, rather than vacating the felony-murder
count by operation of law. For the reasons set forth below, we affirm.
1. Appellant first asserts that the evidence presented at trial
was insufficient to sustain his convictions because the State failed
to prove beyond a reasonable doubt that Appellant was not justified
in defending himself. We disagree.
Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial showed the following. In February of
2016, Appellant lived in a two-bedroom apartment in the Georgia
Woods Apartment complex located in Coffee County. Several other
people also lived in the apartment, including Sylvia Livingston
term of this Court beginning in December 2022 and submitted for a decision
on the briefs.
2
(“Sylvia”), Isom Livingston (“Isom”), and Uglesias English. During
the afternoon of February 19, 2016, Sylvia and English, who were
romantically involved, began arguing. Appellant offered to drive
English around in his black Mazda to let Sylvia “blow off a little
steam.” Appellant then drove English and Isom to Alma, Georgia.
When Appellant, English, and Isom returned to the apartment
around 11:30 p.m., English and Sylvia began “fist fighting” and
“tussling.” Sylvia told English to leave the apartment. English then
walked out of the apartment and, while standing in the apartment’s
breezeway, placed a phone call to his cousin, Walker. English told
Walker that he needed Walker to come over to the apartment
because Sylvia was “holding [his] clothes” and his “fire,” a term he
used to refer to his silver 9mm pistol that Sylvia had placed in her
closet.
After receiving English’s call, Walker had his girlfriend, Irene
Fussell, drive him in her truck to the apartment complex. About five
to ten minutes after English made the call, security footage, which
was viewed by the jury, showed Walker and Fussell pulling into the
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complex’s parking lot and English running over to meet them. The
footage further showed Walker exiting the vehicle, handing an
object to English, which English later identified as a black Glock 40
pistol, and then following English toward the apartment building.
English testified that, before they entered the apartment, English
gave the gun back to Walker because he felt that he “didn’t need it.”
Upon entering the apartment, English and Sylvia continued
their physical altercation, and Walker and Appellant began a heated
exchange. At trial, Isom, Sylvia, and English testified that they
heard Appellant ask Walker something to the effect of, “Who the F
are you?” and heard Walker reply something to the effect of, “Don’t
worry about who the F I am; who the F is you?” English testified
that Walker did not pull out his gun while in the apartment.
However, Isom and Sylvia testified that they saw Walker wave
around the black Glock 40 and point it at Appellant. Isom also
testified that Walker pointed the firearm in his direction as well.
Isom testified that, in an effort to defuse the situation, he told
Sylvia to get English’s gun, and when she retrieved the gun from her
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closet, Isom grabbed the gun and handed it back to English. Walker
and English then began exiting the apartment. Isom, Sylvia, and
English all testified that, as Walker and English were leaving,
Appellant said something to the effect of, “You should have killed
me when you had a chance.”
The security camera captured Walker and English leaving the
apartment building and showed Appellant exiting the building a few
seconds later. Appellant walked past English and Walker to his car,
which was parked between the apartment complex and Fussell’s
truck. Sylvia then walked out of the apartment building and began
physically fighting with English again. English proceeded to pin
Sylvia to the ground and Walker, who was close by, stepped in to
pull English off of Sylvia. At some point during this altercation,
Walker gained possession of the silver 9mm pistol from English and
dropped the black Glock 40 on the ground. 2 Meanwhile, Appellant
retrieved a gun from his car and placed an item, which officers later
identified as a box of bullets, on top of the vehicle. Walker then led
2 Isom retrieved the Glock 40 and placed it in his pocket.
5
English through the parking lot in the direction of Fussell’s truck.
As Walker pulled English past Appellant’s car, Appellant
approached Walker from Walker’s left, taking a few steps before
quickly raising his gun and firing at Walker’s neck. Appellant then
turned his back to Walker and started walking away. Walker pulled
out the silver 9mm pistol and fired a shot in Appellant’s general
direction, missing him. After Walker returned fire, Appellant ran
back to the apartment complex, went through the apartment, and
fled into a wooded area behind the apartment complex. Meanwhile,
Walker and English got into Fussell’s truck, and they drove off.
Following the shooting, Fussell drove Walker to a hospital,
where he died as a result of a “gunshot wound to the left front of his
neck.” Officers with the Douglas Police Department were then
dispatched to the hospital and the apartment complex. When
officers arrived at the apartment complex’s parking lot, they found
a box of .380-caliber bullets on top of Appellant’s car and observed
blood splatter in the surrounding area. After interviewing Fussell
at the hospital and watching the security footage at the apartment
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complex, officers identified Appellant as the person who shot
Walker. Two months later, on April 21, 2016, Appellant was located
and arrested in Hollywood, Florida.
Taking the stand in his own defense, Appellant testified that
he shot Walker in self-defense. According to Appellant, Walker
aimed his gun at Appellant twice while he was inside the apartment,
which “spooked” Appellant and “made him mad at the same time.”
Appellant claimed that he decided to leave the apartment because
he was “fed up with the whole . . . situation,” and walked to his car
to leave. However, upon reaching his car, Appellant did not
immediately get in and drive away because he realized he had left
his cell phone inside the apartment. Appellant claimed that, shortly
after realizing his cell phone was still inside, he heard the
commotion between English and Sylvia and saw Walker and English
walking toward his car. According to Appellant, he then decided to
retrieve his “weapon” from his car, and he “shot first” because he
was afraid Walker may try to shoot him.
During cross-examination, Appellant admitted that he did not
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see a gun in Walker’s hands when he pulled the trigger. Appellant
also explained that he fled after the shooting because he was a felon
who was not supposed to have a gun, and he was afraid that
Walker’s family would retaliate. When Appellant was asked
whether he told Walker that Walker should have shot him when he
had the chance, Appellant claimed that he never said that and that
the previous witnesses had made that up.
On appeal, Appellant contends that the trial evidence
established that he acted in self-defense under OCGA § 16-3-21 (a),
which provides in relevant part that a person is justified in using
deadly force “if he or she reasonably believes that such force is
necessary to prevent death or great bodily injury to himself . . . or to
prevent the commission of a forcible felony.” According to Appellant,
the trial evidence showed that he reasonably employed deadly force
against Walker because he believed Walker was armed and Walker
had twice committed aggravated assault against him while in the
apartment. Therefore, Appellant argues, the State failed to prove
beyond a reasonable doubt that Appellant was not justified in
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defending himself.
When evaluating the sufficiency of evidence as a matter of
constitutional due process, the proper standard of review is whether
a rational trier of fact could have found the defendant guilty beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979). This Court will uphold the
jury’s verdict “[a]s long as there is some competent evidence, even if
contradicted, to support each fact necessary to make out the State’s
case.” Davis v. State, 312 Ga. 870, 873 (1) (866 SE2d 390) (2021)
(citation and punctuation omitted). “When a defendant presents
evidence that he was justified in using deadly force, the State bears
the burden of disproving the defense beyond a reasonable doubt.”
Birdow v. State, 305 Ga. 48, 50 (1) (823 SE2d 736) (2019). It is the
role of the jury to evaluate the evidence and, when doing so, “[t]he
jury is free to reject any evidence in support of a justification defense
and to accept the evidence that the shooting was not done in selfdefense.” Anthony v. State, 298 Ga. 827, 829 (1) (785 SE2d 277)
(2016).
9
Here, the trial evidence was sufficient to authorize the jury to
reject Appellant’s self-defense claim and conclude that Appellant did
not reasonably believe that deadly force was necessary to defend
himself against Walker. Specifically, the video recording of the
incident authorized a jury to find that Appellant did not reasonably
fear that Walker posed a threat of death or great bodily injury when
Appellant shot him, as Walker was leading English to Fussell’s
truck to leave the apartment complex when Appellant approached
Walker from the side, fired his gun, and then walked away. See,
e.g., Huff v. State, __ Ga. __, __ (1) (__ SE2d __) (2023) (jury
authorized to reject self-defense claim where the jury could have
concluded from a video recording of the shooting that the victim’s
conduct “did not give rise to a reasonable belief that [the victim] was
threatening to physically harm [the defendant]”); Jackson v. State,
__ Ga. __, __ (1) (b) (__ SE2d __) (2023) (jury authorized to reject
defendant’s self-defense claim in part because “[the] victim was not
threatening Appellant in any way at the time he shot her”); Gobert
v. State, 311 Ga. 305, 309 (1) (a) (857 SE2d 647) (2021) (jury
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authorized to reject defendant’s self-defense theory where defendant
shot at the victims as they fled and no one was in danger or in any
imminent threat of harm at that time).
Moreover, a rational jury could have disbelieved Appellant’s
claim of self-defense based on the testimony of the witnesses to the
shooting and his own trial testimony. Multiple witnesses testified
that, as Walker was leaving the apartment, Appellant threatened
Walker by telling him something to the effect of “you should have
killed me when you had the chance,” which could have led the jury
to conclude that Appellant shot Walker out of retaliation rather than
in self-defense. See Manning v. State, 303 Ga. 723, 724 (1) (814
SE2d 730) (2018) (jury authorized to reject self-defense claim in part
because “one witness heard appellant make threatening remarks to
the victim just prior to seeing appellant pull a gun and commence
shooting”). Although Appellant testified that he never threatened
Walker, it is the jury’s role “to determine the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the
evidence.” Moss v. State, 298 Ga. 613, 614 (1) (b) (783 SE2d 652)
11
(2016) (citation and punctuation omitted). Additionally, Appellant
admitted that, at the time he shot Walker, he did not see a firearm
in Walker’s possession. Therefore, even if the jury believed that
Walker had previously aimed a gun at Appellant while inside the
apartment, the jury was authorized to find that Appellant did not
reasonably believe that Walker posed any imminent threat of harm
to him when he shot Walker. See Davis, 312 Ga. at 873 (1) (jury
authorized to reject self-defense claim in part because “[defendant]
admitted that he did not see [the victim] pull a gun during the
incident”). Thus, given the evidence presented, the jury was
authorized to reject Appellant’s claim that he shot Walker in selfdefense and to find him guilty beyond a reasonable doubt of malice
murder.
2. Appellant next contends that the trial court erred in
sentencing him to life in prison without the possibility of parole.
According to Appellant, although OCGA § 16-5-1 (e) (1)3 gave the
3 OCGA § 16-5-1 (e) (1) provides that “[a] person convicted of the offense
of murder shall be punished by death, by imprisonment for life without parole,
or by imprisonment for life.”
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court discretion to consider sentencing him to life with the
possibility of parole, the court failed to exercise that discretion
because it incorrectly concluded that he was a recidivist who was
ineligible for parole under OCGA § 17-10-7.4 Appellant further
argues that OCGA § 17-10-7 is inapplicable because he was not
previously convicted of a serious violent felony, as required under
section 17-10-7 (b) (2), and because section 17-10-7 (c) does not apply
to murder convictions. 5 However, we need not decide whether
sentencing Appellant as a recidivist would have been improper
4OCGA § 17-10-7 governs the punishment and parole eligibility of repeat
offenders. Pursuant to OCGA § 17-10-7 (b) (2), any person who has previously
been convicted of a serious violent felony and is convicted of another serious
violent felony for which he is not sentenced to death, “shall be sentenced to
imprisonment for life without parole.” The legislature has defined the
following as serious violent felonies: murder or felony murder, armed robbery,
kidnapping, rape, aggravated child molestation, aggravated sodomy, and
aggravated sexual battery. See OCGA § 17-10-6.1 (a). Pursuant to OCGA §
17-10-7 (c), any person with three prior felony convictions who is subsequently
convicted of a fourth felony offense shall “serve the maximum time provided in
the sentence of the judge based upon such conviction and shall not be eligible
for parole until the maximum sentence has been served.”
5We note that, although OCGA § 17-10-7 (c) previously stated that it did
not apply to fourth-time felony offenders being sentenced for a capital felony,
“in 2010 the General Assembly amended OCGA § 17-10-7 (c) to remove the
exception for capital felonies.” Kimbrough v. State, 300 Ga. 516, 517 n.2 (2)
(796 SE2d 694) (2017).
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because Appellant has not shown he was sentenced as a recidivist.
The record shows that prior to trial, the State filed a notice of
intent to seek recidivist punishment of Appellant based on his 2013
convictions for possession of cocaine and various traffic offenses,
2016 conviction for possession of a firearm by a convicted felon, and
2019 convictions for aggravated assault and burglary. At the
sentencing hearing, the State argued that the court was required to
impose a sentence of life in prison without the possibility of parole
because of Appellant’s prior convictions, and defense counsel did not
object. The trial court then orally pronounced it was sentencing
Appellant “[to] serve the balance of [his] natural life in prison
without the possibility of parole,” without further explanation.
Subsequently, the trial court entered its final written sentence,
which did not reflect that Appellant was sentenced as a recidivist.
Appellant’s claim that the trial court failed to exercise its
sentencing discretion because it incorrectly concluded that
Appellant was a recidivist is without merit. A trial court has
discretion to impose a sentence of life without parole for murder
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regardless of whether the defendant is a recidivist. See OCGA § 16-5-1 (e) (1). Here, the record does not show that the trial court’s
sentence was anything other than an exercise of that discretion.
Although there was some discussion of recidivism at the sentencing
hearing, neither the trial court’s oral sentence nor its final
sentencing order indicated that Appellant was sentenced as a
recidivist. Accordingly, because Appellant has not shown that the
trial court failed to exercise its discretion in imposing a life-withoutparole sentence for Appellant’s malice murder conviction, Appellant
has not shown that the sentence was improper. See Boyd v.
Washington, 293 Ga. 823, 824 (293 SE2d 823) (2013) (concluding
that the trial court did not sentence the defendant as a recidivist,
despite indicating at one of the sentencing hearings that it would
impose a recidivist sentence, because the court did not mention that
the defendant was being sentenced as a recidivist at the final
sentencing hearing, the final written sentence did not state that the
defendant was being sentenced as a recidivist, and the sentence
imposed was appropriate).
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3. Finally, Appellant claims that the trial court erred in
merging Appellant’s felony-murder count into the malice-murder
count, rather than vacating the felony-murder count by operation of
law. The State concedes this point, and we agree. See Favors v.
State, 296 Ga. 842, 847-848 (5) (770 SE2d 855) (2015) (“When [a]
valid guilty verdict is returned on both malice murder and felony
murder of the same victim, [a] defendant should be sentenced for
malice murder, and [the] alternative felony murder verdict[]
stand[s] vacated by operation of law.”). Nevertheless, the trial
court’s incorrect nomenclature did not affect Appellant’s sentence
because the trial court only imposed a sentence for the malicemurder count. “As there is no sentencing error to correct, we simply
note that the felony murder verdict [was] vacated by operation of
law, rather than ‘merged’ as the trial court stated,” Manner v. State,
302 Ga. 877, 891 (IV) (808 SE2d 681) (2017), and we affirm
Appellant’s sentence.
Judgment affirmed. All the Justices concur.
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