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.
SUPREME COURT OF GEORGIA
Case No. S24A0725
October 31, 2024
BRYAN OKEITH MILLER v. THE STATE.
Upon consideration, the deadline for a motion for
reconsideration in this case has been revised. It is ordered that a
motion for reconsideration, if any, must be filed no later than 4:30
pm on Wednesday, November 6, 2024.
In the Supreme Court of Georgia
Decided: October 31, 2024
S24A0725. MILLER v. THE STATE.
LAGRUA, Justice.
A jury convicted Appellant Bryan Miller of the malice murder
of his wife, Gracie Miller, and of the aggravated assault of his wife’s
adult niece, Shamone Morris, both of whom he shot multiple times.1
1 The crimes at issue occurred on May 18, 2021. On August 12, 2021, a
Gwinnett County grand jury indicted Miller on the following counts: malice
murder of Gracie (Count 1); felony murder predicated on the aggravated
assault of Gracie (Count 2); aggravated assault of Gracie (Count 3); aggravated
assault of Morris (Count 4); possession of a firearm during the commission of
a felony (Count 5); possession of a firearm during the commission of a felony
(Count 6). Miller was tried in May of 2023 and a jury convicted Miller on all
counts. As to Count 1 (malice murder), the court imposed a life sentence
without the possibility of parole. Count 2 (felony murder) was vacated by
operation of law and Count 3 (aggravated assault of Gracie) merged by
operation of law. As to Count 4 (aggravated assault of Morris), Count 5
(possession of a firearm during the commission of a felony), and Count 6
(possession of a firearm during the commission of a felony), the court imposed
an aggregate sentence of 30 years to serve concurrent with the life sentence for
Count 1. Miller timely filed a motion for new trial, which he later amended
through new counsel. On December 1, 2023, the trial court held a preliminary
hearing on the motion for new trial, during which the parties agreed to adjourn
until the State had an opportunity to respond to the amended motion, further
2
Miller’s sole enumeration of error on appeal is that the trial court
abused its discretion when it admitted evidence of two prior
incidents involving his wife pursuant to OCGA § 24-4-404 (b) (“Rule
404 (b)”). Within that enumeration, Miller raises three arguments:
(1) the admission of this evidence was erroneous because Miller
claimed self-defense, which negates the relevance of motive and
makes the other-acts evidence far more prejudicial than probative;
(2) the State only presented a plea of nolo contendere as to one of the
incidents, which by itself was insufficient to prove Miller’s
involvement therein; and (3) the trial court failed to rule on the
admissibility of the other acts with respect to the assault against
Morris, which were extrinsic and unduly prejudicial regarding that
assault. For the reasons that follow, we affirm.
According to the evidence admitted at trial, on May 15, 2021,
three days before the shooting, Morris came to Georgia to visit her
agreeing that the trial court would rule on the briefs thereafter. On January
12, 2024, the trial court denied Miller’s motion for new trial. Miller filed a
timely notice of appeal to this Court on January 12, 2024, and his case was
docketed to the April 2024 term of this Court and submitted for a decision on
the briefs.
3
family, including her aunt, Gracie, and Gracie’s husband, Miller.
Morris stayed in the guest bedroom in the Millers’ apartment during
her visit. Morris and Gracie were close and had spoken almost every
day for years, but Morris had never met Miller in person prior to this
visit.
Morris described the first day of her visit as “a very good time
. . . [e]veryone was happy . . . [i]t was all good.” She said Miller made
her feel “at home.” However, Morris testified that by the second day
of her visit, she noticed a “little shift” in Miller’s attitude; he began
ignoring everyone. According to Morris, the next day was worse,
with Miller acting “a bit standoffish.”
Morris testified that, on the morning of May 18 – the day of the
shooting – Miller was again “standoffish.” Morris and Gracie left
that morning to meet a realtor to look at houses. The two returned
to the Millers’ apartment sometime between 5:00 and 8:00 p.m.,
when it was “dark.” Once inside, Gracie sat on the couch in the living
room and Morris sat on the floor in front of her, so that Gracie could
braid Morris’s hair. They turned on the television for “background
4
noise.”
According to Morris, about this time Miller began walking in
and out of the master bedroom “mumbling things.” Gracie tried to
talk to Miller, but Morris told her, “[j]ust don’t engage.” The third
time Miller came out of the bedroom he told Morris, “[n]o smoking
weed in the house.” Morris testified that she told him that she had
not smoked marijuana in his house and that she would respect his
request.
Notwithstanding, Morris testified that Miller came in and out
of the living room “multiple times” thereafter and seemed to be
trying to get Gracie’s attention. Morris also testified that Miller
“looked very blank. The eyes were very red. He looked like he was
upset, like he wasn’t himself, not the person that I spoke on the
phone with and I met with the first day I got there on Saturday. It
was a totally different person.” Morris testified that Miller appeared
to be under the influence of alcohol, though she never saw him drink
that day.
Morris also said that Miller “lifted up his shirt and he said . . .
5
there’s no smoking;” in fact, “he kept lifting up his shirt like coming
out, like pulling it up,” which she construed as “intimidation.”
Morris testified that although she interpreted the behavior as
threatening, she chose to ignore it, as did Gracie. Instead, the
women chatted with each other while Gracie braided Morris’s hair,
and the two “were laughing a lot” at the television show in the
background.
As Gracie was “finishing” Morris’s hair, Miller “came out and
he had [a] weapon in his hand . . . a black gun . . . with a very long
extended clip.” Morris testified that “he just started letting it off . . .
like shooting.” Gracie cried out to Morris, asking her to tell Gracie’s
mother that Gracie loved her. Gracie also cried out to Miller “please
don’t shoot me in the face.” Morris testified that she closed her eyes
and “played as dead as possible when he started shooting after
[Gracie] said what she said.” Morris “grabbed” Gracie’s leg, slowed
her own breathing, and told herself to “relax and just lay here and
try not to move so much.”
Miller shot Gracie a total of six times: twice in the thigh, once
6
in the chest, once in the arm, once in the side, and once to the right
side of her head. The Medical Examiner testified that the head shot
was at “contact range,” killing Gracie “nearly instantaneously.”
Miller also shot Morris multiple times, hitting her neck, abdomen,
chest, both legs, and right forearm.
Miller left the room after he stopped firing. Morris testified
that she could not see where he was and could not hear whether he
was nearby because her ears were “ringing” from the gunshots.
Nevertheless, she “just took a chance” to look for her cell phone.
When she first “went to go sit up,” she was unable to, such that she
“kind of thought [she] was paralyzed.” She tried again and “sat up a
little bit.” She was able to reach her cell phone and call 911, but
could not provide the address because she did not know it. After
speaking with 911, she called other family members to tell them
what happened and to ask them to call the police as well.
Police were able to trace Morris’s call and arrived on scene in
under five minutes. They found Morris lying on the floor “in a pool
of blood” and Gracie sitting unresponsive on the couch with a pillow
7
on her face. Gracie was “deceased at the scene.” Within roughly 10
minutes, police cleared the scene and EMTs took Morris to the
hospital. Police discovered no weapons near the victims or anywhere
else in the apartment.
After the shooting, Miller called his friend and neighbor Trina
Brown. Brown testified that Miller walked over to her apartment to
get a cigarette. He did not mention the incident. According to Brown,
she and Miller drank a shot of alcohol and Miller waited there while
Brown went to pick up her partner, Deonte Boulton, and Brown’s
adult daughter, Zarelle, from where they both worked. Brown
testified that nothing appeared “out of the ordinary” with Miller, he
looked like “normal . . . [j]ust like on any other day.”
As Brown left her home, she saw police officers and helicopters
in and around the apartment complex. When Brown returned with
her family, she found Miller standing outside talking to two other
neighbors about “all the commotion” because “somebody had got [sic]
shot.” When the State asked Boulton whether, at that point, Miller’s
behavior was “different from any other day,” Boulton testified “not
8
really.”
Brown testified that Miller and Boulton went back inside
Brown’s apartment to drink and smoke, and Brown followed a few
minutes later. Miller, Boulton, and Brown all drank some more, with
Brown testifying that she consumed about “4 or 5 shots” in
approximately 30-45 minutes. Then all four of them – Miller, Brown,
Boulton, and Zarelle – walked back to the Millers’s apartment to
“see what was going on.”
As they approached the Millers’s apartment, they found that
police had “taped off” the area. Miller still said nothing to them
about the incident, but Zarelle testified that she heard him say “I
shot her” under his breath. Zarelle testified that she ignored the
comment because she thought that Miller was drunk. When the
group arrived at the scene, Miller approached Gwinnett police
officer Brian Pierson and said “something to the effect of I just want
to go home.” Pierson confirmed with other officers that they were
looking for Miller and police took him into custody on the spot.
Miller took the stand at trial. He testified that he and Morris
9
had a “good relationship” and there was “no bad energy whatsoever
when she arrived.” He likewise testified that he and Gracie “got
along extremely well,” that she was a caring person, and that their
marriage was on good terms at the time of the shooting. He said that
he and Gracie
got along at times, but there – it was – it was times that
we really got along extremely well. From the time that we
once met each other, period, we got along. It was just like
instantly, and bonding with family, instantly. But she
was kind of on the stubborn side, so it would be iffy days,
but nothing to the extreme.
He further testified that at the time of the shooting, as he
entered the master bedroom when Gracie was braiding Morris’s
hair, he heard the women laughing, and then Gracie said, “that’s
why I’m leaving his a**.” Miller responded, “that’s why I’m ready to
go back to Alabama.” Morris then said words to the effect “oh, sh*t,
let me get out the way . . . I’m not getting into sh*t.” Miller testified
that as Morris said she would leave, Miller heard what sounded like
a table sliding. He stepped back out of the bedroom. He says he saw
Gracie “reaching with her right hand toward a pillow.”
10
Miller testified that Gracie owned a gun that she would
sometimes keep “in the living room on the small brown table.” Miller
testified that he had seen Gracie’s gun that night on that table,
which was “about a foot and a half” away from where Gracie was
sitting as she said she would leave him. Miller also testified that he
believed that at least one other gun, belonging to another family
member, was somewhere in the vicinity, though he was not sure
where. He says that as he heard Gracie’s threat to leave him, he
turned and saw her “reaching out . . . under the – pillow” where he
thought a gun was hidden. He testified that he could “see something
black in [Gracie’s] hand.”
In response to the alleged threat, Miller testified that he was
able to “reach” into his bedroom and retrieve his gun with its
extended ammunition clip. He opened fire as he entered the living
room where Morris and Gracie were. After he killed Gracie, Miller
testified that he fired on Morris because she was “making movement
too,” and there was a “pillow right there, so [he] didn’t know what
she was reaching for.”
11
Prior to trial, the State filed a motion to admit evidence of two
prior incidents between Miller and Gracie, occurring on November
15, 2017 (the “November 2017 incident”), and May 31,2 2018 (the
“May 2018 incident”),3 respectively. At the pretrial hearing on the
motion, the State argued that these incidents demonstrated prior
difficulties between Gracie and Miller, and were extrinsic bad acts
as to Morris, and were thus admissible pursuant to Rule 404 (b).
The prosecutor explained that “no one knows” why Miller
opened fire on his family that day, and further argued that
I know that I don’t have to prove motive in any murder
proceeding. However, for me to be able to explain a way
to the jury[,] a clear reason why a married man of X
number of years with his wife[,] and both man and woman
presumably old enough to act in a mature manner[,] how
something like this could come, I wanted to make sure
that I am able to paint the background, the circumstances
of their marriage, as well as what happened relatively
recently prior to show the state of their marriage, as well
as the prior difficulty between the two.
2 The State indicated at the pretrial hearing that the incident occurred
on May 30, but at trial the testifying officer and the prosecutor referred to the
date as May 31, pursuant to the relevant amended accusation.
3 The State also sought admission of evidence regarding an April 8, 2018,
incident, but abandoned that request at trial.
12
The State suggested that “if the Court’s concerned about” how
the prior difficulties would relate to the aggravated assault of
Morris, “the Court can always give a limiting instruction or curative
instruction” limiting the jury’s consideration of those incidents to
the context of Miller’s attack on Gracie.
Miller’s only objection was that the State could not prove that
he committed the alleged acts because the only competent witness
was Gracie, and her alleged statements in the prior incidents would
be inadmissible hearsay. Counsel “concede[d] the point that if the
State can get competent evidence that they can introduce this as a .
. . prior difficulty.”
The Court orally granted the State’s motion, finding that “the
evidence is being tendered for a purpose other than character, a
proper motive – or a proper means for motive, nature of the
relationship between the parties. The probative value is not
substantially outweighed by the danger of unfair prejudice.” A
written order followed admitting the evidence of the prior incidents
13
to show “the circumstances immediately surrounding the charged
crime, motive, and/or prior difficulties between the accused and the
alleged victim under [Rule 404 (b)].”
At trial, before presentation of the State’s evidence regarding
the November 2017 incident, the trial court gave a limiting
instruction to the jury, without objection.4 Gwinnett County Police
4 The court instructed as follows:
Ladies and gentlemen, with respect to the following testimony,
sometimes evidence is admitted for a limited purpose. Such
evidence may be considered by the jury for the sole issue or purpose
for which the evidence is limited and not for any other purpose. In
order to prove its case, the State may prove motive. To do so, the
State has offered evidence of other acts allegedly committed by the
accused. You are permitted to consider that evidence only insofar as
it may relate to that issue and not for any other purpose. You may
not infer from such evidence that the defendant is of a character
that would commit such crimes. The evidence may be considered
only to the extent that it may show the issues that the State is
authorized to prove, in the crimes charged in this case now on trial.
Such evidence, if any, may not be considered by you for any other
purpose. The defendant is on trial for the offenses charged in this
bill of indictment only and not for any other acts, even though such
acts may incidentally be criminal. Before you may consider any
other alleged acts for the limited purposes stated, you must first
determine whether it is more likely than not that the accused
committed the other alleged acts. If so, then you must determine
whether the acts shed any light on the issues for which the act was
admitted in the crimes charged and the indictment in this trial.
Remember to keep in mind the limited use and the prohibited use
of this evidence about other acts of the defendant. By giving this
14
Detective Steven Casey then testified that on November 15, 2017,
when he was a patrol officer, he responded to a call about a domestic
dispute involving Miller and Gracie at their apartment. He met
Gracie and observed that “her lips were busted, and were also split
open as well.” The wounds appeared “freshly done.” Detective Casey
made contact with Miller “shortly afterwards” elsewhere in the
apartment complex. The jury heard that Miller ultimately pleaded
guilty to misdemeanor family violence battery pursuant to OCGA §
16-5-23.1 (f), 5 and that he was sentenced to serve 30 days in jail.
Regarding this incident, Miller testified at trial that he and
Gracie had been “having an argument” and “kind of fussing,” and
that ultimately his wife threw a cup of bleach in his face. He testified
that a friend of his called the police on his behalf, over his objection,
to report the bleach attack. But when police arrived, they took Miller
instruction, the Court in no way suggests to you that the defendant
has or has not committed any other acts, nor whether such acts, if
committed, prove anything. This is solely a matter for your
determination.
5 The statute provides in pertinent part that “[i]f the offense of battery is
committed between household members, it shall constitute the offense of
family violence battery[.]” OCGA § 16-5-23.1 (f) (2).
15
into custody, despite him telling them about the bleach incident,
because they were “looking for [him] anyway.” Miller denied having
anything to do with Gracie’s “busted” lip, and said that he did not
know how she received that injury. He contended that his guilty plea
was the result of coercive circumstances, his attorney’s
unhelpfulness, and an unnamed witness’s advice to plead guilty; in
retrospect, it “bothered me to the point [sic] that I pled guilty to
something I never did, and that was put my hands on my wife.”
Prior to the State’s submission of evidence regarding the May
2018 incident, the trial court reiterated its limiting instruction,
again without objection.6 The State then called City of Duluth Police
Officer Rolf Seiferheld, who testified that on the day of the May 2018
incident, he responded twice to domestic calls involving Miller and
Gracie. Officer Seiferheld testified that, the first time, officers came
and went without incident. The second time, Officer Seiferheld
encountered Gracie with “fresh” lacerations on her arms and saw
6 The trial court initially told the jury that its limiting instruction applied
to all “succeeding witnesses,” but later clarified that the instruction only
applied to the two officers testifying about the two prior incidents at issue here.
16
pieces of a shattered wine glass both in the living room and kitchen
areas. Officer Seiferheld questioned Miller, who claimed that Gracie
thought he was on the phone with another woman and that, in a fit
of jealous rage, she broke the wine glass and cut herself to frame
him for assault. Officer Seiferheld arrested Miller for simple battery
domestic violence. The jury heard that Miller subsequently pleaded
guilty to disorderly conduct pursuant to OCGA § 16-11-39 (a) (1)7
and was sentenced to two days to serve.
Regarding this incident, Miller testified at trial that his wife
heard him on the phone and was “irate.” He said that she was “just
picking, picking” at him so much that he called the police the first
time. Miller testified that police spoke to him and Gracie and left
with their dispute “resolved.”
Miller testified that police came back for the second time that
7 This statute provides in pertinent part that “(a) A person commits the
offense of disorderly conduct when such person commits any of the following:
(1) Acts in a violent or tumultuous manner toward another person whereby
such person is placed in reasonable fear of the safety of such person’s life, limb, or health[.]” OCGA § 16-11-39 (a) (1).
17
day because either Gracie or a neighbor called them. Miller testified
that he was on the phone in the bedroom when he heard glass
shattering. He says he came out of the room to find his wife
“standing in the middle of the living room with a piece of glass in
her hand. And she had cut herself from – close up here around the
palm of her hand” to her right inner arm. By then police were
already at the front door. He testified that police decided to arrest
him as a “favor” to help keep him out of trouble.
During closing arguments, Miller’s counsel argued that Miller
acted in self-defense during the incident for which he was on trial
and attempted to distinguish the two prior incidents. Counsel
further argued that the May 2018 incident was “relatively minor”
but that it gave the jury “some sort of glimpse into the relationship
between the two parties and the nature of Gracie Miller.” Counsel
characterized that relationship as “tumultuous.”
He also argued that “although the State is not required to prove
motive, motive is always a relevant consideration.” In that vein,
counsel criticized the State’s theory that Miller “for no reason
18
whatsoever or [that] for some unstated, unclear inarticulated [sic]
reason decided, for whatever reason, on that day, to simply pull out
a gun and start shooting.” He further argued to the jury that the
State’s theory that Miller “comes out . . . does not say anything . . .
offers no explanation or rationale . . . does not become upset . . .
simply has a gun and starts shooting . . . does not make any damn
sense” in the context of, among other things, Miller’s “relationship”
with Gracie.
In its charge to the jury, the trial court reiterated the limiting
instruction it gave prior to introduction of the State’s evidence of the
two prior incidents. The trial court also charged the jury that
[e]vidence of prior difficulties between the defendant and
the alleged victim has been admitted for the sole purpose
of illustrating, if it does, the state of feeling between the
defendant and the alleged victim and witness. Whether
this evidence illustrates such matters is a matter solely
for you, the jury, to determine, but you are not to consider
such evidence for any other purpose.
Finally, the court charged that “[t]he State does not have to
prove motive to prove murder. Any evidence of motive has been
19
admitted for your use in determining the defendant’s state of mind
at the time of the killing.”
Miller only objected to the court’s failure to charge Miller’s
preferred definition of “aforethought.”
1. Miller argues that the prior incidents were inadmissible
because he claimed self-defense. We disagree. The trial court did not
err in admitting the evidence pursuant to Rule 404 (b), which says
that
[e]vidence of other crimes, wrongs, or acts shall not be
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, including, but not limited
to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Id.
Proper admission of other-acts evidence pursuant to Rule 404
(b) requires the trial court to employ a three-part test, that
(1) the other acts evidence is relevant to an issue other
than the defendant’s character, (2) the probative value is
not substantially outweighed by undue prejudice
under OCGA § 24-4-403 (“Rule 403”), and (3) there is
sufficient proof that a jury could find by a preponderance
of the evidence that the defendant committed the acts.
20
Flowers v. State, 307 Ga. 618, 621 (2) (837 SE2d 824) (2020) (citation
omitted).
As the State points out, Miller did not object below to
introduction of the prior acts based on either relevance or the
balance between probative value and undue prejudice. Thus, while
he argues abuse of discretion, this Court reviews for plain error. See
Payne v. State, 313 Ga. 218, 222 (1) (869 SE2d 395) (2022) (holding
that failure to preserve an evidentiary objection for “ordinary
appellate review” leaves the objection subject to review on appeal for
plain error). See also McKinney v. State, 307 Ga. 129, 133 (2) (834
SE2d 741) (2019) (holding that failure to object on grounds of
hearsay and a Confrontation Clause violation only preserves those
two grounds for review for plain error).
To show plain error, [Appellant] must point to an error
that was not affirmatively waived, the error must have
been clear and not open to reasonable dispute, the error
must have affected his substantial rights, and the error
must have seriously affected the fairness, integrity or
public reputation of judicial proceedings.
Payne, 313 Ga. at 222 (1) (citation omitted).
21
This Court need not analyze all the elements of plain error
should Miller fail to prove any one of them. Id. (citation omitted).
(a) Evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” OCGA § 24-4-401. Miller argues that his claim of selfdefense eliminated the need for evidence of motive, which rendered
the other-acts evidence irrelevant. We disagree.
Evidence of a defendant’s prior acts toward another
person may be admissible when the defendant is accused
of a criminal act against that person, where the nature of
the relationship between the defendant and the victim
sheds light on the defendant’s motive in committing the
offense charged in the prosecution at issue.
Flowers, 307 Ga. at 621 (2) (citations and quotes omitted). See also
Lowe v. State, 314 Ga. 788, 793 (2) (a) (879 SE2d 492) (2022) (same).
The two prior incidents were directly relevant to motive 8 in the
context of Miller’s relationship with Gracie, notwithstanding
8 Miller argues both “motive” and “intent” in his appeal brief. However,
the State did not offer, and the trial court did not admit, the prior incidents as evidence of intent, so we do not consider intent here.
22
Miller’s claim of self-defense. See Lowe, 314 Ga.at 793 (2) (a) (“We
have held that evidence of motive may be relevant to counter claims
of . . . self-defense.”) (citation omitted). Indeed, at the pretrial
hearing defense counsel candidly “concede[d] the point that if the
State can get competent evidence . . . they can introduce this as a . .
. prior difficulty.” The two incidents 9 give context to the question of
why, based on the simple fact that Gracie said she was leaving
Miller and he heard a table sliding, he says he instantly thought
that she was reaching for a gun to kill him and, purportedly fearing
for his life, he reached for his own gun, entered the room, fired
repeatedly on his wife, and ultimately shot her in the head at close
range. As he described it,
when she came around – came around and she was
getting up and she was already reaching, there was no
doubt to me that she was – she was going to pull the gun
and she was going to fire . . . there was no doubt that this
9 At trial, Miller volunteered information about another incident not at
issue in this appeal. He testified that he and Gracie had an argument wherein
he threatened to leave Gracie and go back home to Alabama. He testified that
she refused to let him leave and picked up a gun, firing it accidentally. Miller
said Gracie then told her mom that he fired the shot. He could not give an
approximate date for this incident. Trial counsel discussed this incident in
opening statement as part of the basis for Miller’s self-defense claim.
23
was the end of my life. I’m dead. I’m dead.
Presumably this is why defense counsel argued in closing that
the May 2018 incident gave the jury “some sort of glimpse” into the
Millers’ relationship, and criticized what he characterized as the
State’s theory that Miller shot Gracie “for no reason whatsoever or
[that] for some unstated, unclear inarticulated [sic] reason decided,
for whatever reason, on that day, to simply pull out a gun and start
shooting.” Likewise, defense counsel told the jury that the idea that
Miller just “comes out . . . does not say anything . . . offers no
explanation or rationale . . . does not become upset . . . simply has a
gun and starts shooting . . . does not make any damn sense” in the
context of, among other things, Miller’s previous relationship with
Gracie. In that same vein, the State sought admission of these
difficulties to help explain to the jury “how something like this could
come” between a married couple, to “paint the background, the
circumstances of their marriage . . . to show the state of their
marriage,” and to show “the prior difficulty between the two.”
24
Thus, Miller fails to persuade us that admission of the prior
incidents was error which was “clear and not open to reasonable
dispute.” Payne, 313 Ga. at 222 (1) (citation omitted). See Flowers,
307 Ga. at 621 (2) (holding that evidence that the appellant “beat[]”
his wife eight days prior to shooting her “sheds light on the nature
of the parties’ relationship and on the appellant’s potential motive
in shooting [his wife] eight days later”). See also Lowe, 314 Ga. at
793 (2) (a) (concluding that where a husband was charged with
murdering his wife, the trial court would have been within its
discretion to admit evidence of the husband’s prior abuse of his wife,
which “would have been relevant as a prior difficulty to show
motive”). 10
Finally, Miller relies on Brown v. State, 303 Ga. 158 (810 SE2d
10 The concurrence argues that the State did not present any “logical
connection” between the prior difficulties and Miller’s motive. But the question
is whether the prior difficulties were relevant to motive. See Flowers, 307 Ga.
at 621 (2). “The test for relevance is generally a liberal one, and relevance is a binary concept -- evidence is relevant or it is not.” Harris v. State, 314 Ga. 238, 262 (875 SE2d 659) (2022) (cleaned up). Here, as shown above, the State
demonstrated that the prior difficulties evidence made it more likely that
Miller shot Gracie because he thought that Gracie may have been attempting
to commit violence on him as she had done in the past.
25
145) (2018) and Strong v. State, 309 Ga. 295 (845 SE2d 653) (2020)
to support his argument that prior difficulties are irrelevant because
he established his motive via his claim of self-defense. Those cases,
however, are inapposite, because they address prior acts between a
defendant and people other than their respective victims; they are
not “prior difficulties” as here. See Brown, 303 Ga. at 160-161 (four
counts of aggravated assault not involving the victim). See also
Strong, 309 Ga. at 318 n.22 (holding that the admission of nine prior
acts not involving the defendant and the victim was error, but noting
that two other incidents involving the defendant and the victim
“may have been admissible to show [the defendant] and [the
victim’s] relationship”) (citing to Flowers, 307 Ga. at 621).
(b) Miller’s argument that the undue prejudicial impact of the
prior difficulties substantially outweighs their probative value
likewise fails.
Rule 403 controls this analysis. See Kirby v. State, 304 Ga. 472,
480 (4) (819 SE2d 468) (2018) (holding that the second part of the
test to admit evidence pursuant to Rule 404 (b) “is governed by” Rule
26
403). Rule 403 provides in pertinent part that “[r]elevant evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.”
The application of the Rule 403 test is a matter
committed principally to the discretion of the trial courts,
but as we have explained before, the exclusion of evidence
under Rule 403 is an extraordinary remedy which should
be used only sparingly. The major function of Rule 403 is
to exclude matter of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial
effect.
Flowers, 307 Ga. at 622-623 (citation omitted).
Again, while Miller argues abuse of discretion on appeal, his
failure to object on this ground at trial subjects the issue to review
for plain error. See Huff v. State, 315 Ga. 558, 566 (3) (883 SE2d 773)
(2023) (reviewing for plain error because lack of objection pursuant
to Rule 403 fails to “preserve for ordinary appellate review . . . that
the testimony was improper character evidence, irrelevant, and
inadmissible under [Rule 403]”) (citation omitted).
Miller argues that the two other acts’ probative value was so
low that their undue prejudicial impact necessarily outweighed
27
their probative value. We disagree. First, the other acts at issue had
significant probative value, as we just articulated. Second, Miller
has not shown that the other acts give rise to undue prejudice. To
the contrary, both other incidents were fairly minor, at least as
compared to the deadly crimes at issue here. Thus, Miller has not
shown that the other acts’ prejudicial impact outweighs their
probative value at all, much less substantially. See Flowers, 307 Ga.
at 623 (citation omitted) (concluding that, where defendant was
accused of murdering his wife, the prejudicial impact of evidence of
his previously “beating” her did not outweigh its probative value
because the prior abuse would not “shock the average juror or
otherwise render the jury incapable of weighing the evidence in a
disinterested manner”) (citation omitted). This means that Miller
has not shown plain error in the trial court’s admission of this
evidence pursuant to Rule 403, and, by extension, Rule 404 (b).
(c) Miller contends that the State failed to produce “sufficient
proof for a jury to find by a preponderance of the evidence” that he
caused the lacerations to Gracie’s arm in the May 2018 incident, as
28
required to admit the evidence pursuant to Rule 404 (b). See
Flowers, 307 Ga. at 621.11 Specifically, Miller contends that the State
only introduced his nolo contendere plea to the offense, but Georgia
law generally prohibits the use of a nolo plea as evidence of a prior
similar crime. See OCGA § 17-7-95 (c) (“Except as otherwise
provided by law, a plea of nolo contendere shall not be used against
the defendant in any other court or proceedings as an admission of
guilt or otherwise or for any purpose.”). Moreover, a nolo plea is
explicitly hearsay without exception pursuant to OCGA § 24-8-803
(22) (granting a hearsay exception for “[e]vidence of a final
judgment, entered after a trial or upon a plea of guilty but not upon
a plea of nolo contendere”) (emphasis supplied). Thus, argues Miller,
a nolo plea by itself fails to establish that Miller committed the prior
act at issue.
Miller’s argument fails because of the simple fact that,
although the State referred to the plea as a nolo at the pretrial
11 Miller does not raise this argument regarding the November 2017
incident.
29
hearing, the certified plea of record specifies that it was a “guilty”
plea. Miller admitted at trial that he pleaded guilty to the charge
associated with the May 2018 incident. Miller raised no
contradictory evidence or argument at trial, and points to no
contradictory evidence now, which means this argument fails.
Moreover, the plea was not the State’s only evidence that
Miller committed the act in question. Officer Seiferheld and Miller
both testified that Miller and Gracie were involved in a domestic
dispute on the day in question, with police responding to two calls
at their residence. The evidence presented at trial indicates that
either Miller or Gracie caused Gracie’s wounds. A jury could
conclude by a preponderance of the evidence that Miller did,
particularly if it considered his explanation of the events as
substantive evidence of his guilt. See, e.g., Daughtie v. State, 297 Ga.
261, 263-264 (2) (773 SE2d 263) (2015) (noting that in combination
with other evidence, “a statement by a defendant, if disbelieved by
the jury[,] may be considered as substantive evidence of the
defendant’s guilt) (citing United States v. McCarrick, 294 F3d 1286,
30
1293 (11th Cir. 2002) (emphasis in original)).
Thus, the plea itself was not the State’s only evidence that
Miller caused the lacerations at issue, and the State satisfied its
obligation to produce “sufficient proof for a jury to find by a
preponderance of the evidence” that Miller caused the lacerations to
Gracie’s arm in the May 2018 incident. This contention fails.
2. Miller next contends that admission of the other-acts
evidence was error with respect to the assault against Morris
because the court never explicitly ruled on the issue as to that crime.
This means, argues Miller, that the court conducted no Rule 403
balancing test concerning those charges, as the law requires.
However, at the pretrial motion hearing, the State suggested
that the trial court could give a limiting instruction to the jury if the
court were “concerned” about how the prior acts might relate to the
aggravated assault charge concerning Morris. The trial court
immediately admitted the evidence to show motive and the “nature
of the relationship between the parties,” and found that “[t]he
31
probative value [wa]s not substantially outweighed by the danger of
unfair prejudice.”
Thus, the trial court implicitly considered the admissibility of
the evidence of the other acts, including pursuant to the Rule 403
balancing test, regarding the assault against Morris. This defeats
Miller’s contention of error on this point. See White v. State, 319 Ga.
367, 380 (b) (i) (903 SE2d 891) (2024) (noting the trial court’s
“implicit conclusion that the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence”
pursuant to Rule 403). See also Johnson v. State, 312 Ga. 481, 494
(4) (863 SE2d 137) (2021) (concluding no error “in the trial court’s
implicit conclusion that the probative value of the . . . evidence was
not substantially outweighed by its prejudicial effect”). See also
Brewner v. State, 302 Ga. 6, 10 (II) (804 SE2d 94) (2017) (holding
that while “[t]he trial court never did issue any express ruling on
the 404 (b) motion,” it “implicitly granted the motion by allowing
[the evidence] at trial”).
32
Miller also argues that the trial court abused its discretion by
admitting the other acts pursuant to Rule 404 (b) as to the assault
against Morris, because the acts were extrinsic as to her, and were
too dissimilar from the shooting at hand to warrant their admission.
Again, Miller did not raise this objection below, so this Court reviews
for plain error. Assuming without deciding that admission of the
prior incidents was error with respect to the assault against Morris,
to be reversible, any such error must have also “affected [Miller’s]
substantial rights.” Payne, 313 Ga. at 222 (citation omitted). Proving
that admission of the evidence affected Miller’s substantial rights
requires him “to make an affirmative showing that the error
probably did affect the outcome below.” Lupoe v. State, 300 Ga. 233,
243 (4) (794 SE2d 67) (2016) (citation omitted).
Miller makes no such showing. To the contrary, Miller’s
justification for attacking Morris was exceedingly weak. Morris, an
eyewitness to the murder, described the shooting in detail, and
established the utter lack of provocation for Miller’s opening fire
that night. In addition, the record is devoid of evidence that Morris
33
and Miller had any problems prior to her visit. Indeed, Morris had
never met Miller in person before the shooting. Morris testified that
once she arrived, the visit began as “a very good time . . . [e]veryone
was happy . . . [i]t was all good.” Miller likewise testified that he and
Morris had a “good relationship” and there was “no bad energy
whatsoever when she arrived.” The record only reflects tension
between the two over whether Morris smoked marijuana inside the
Miller residence despite his demand not to do so, which, even if true,
does not justify shooting Morris. The only reason Miller offered for
attacking Morris was that, after he shot Gracie, Morris was “making
movement too,” and there was a “pillow right there, so [he] didn’t
know what she was reaching for.” Police, however, found no weapon
near the victims or anywhere else in the apartment. Miller never
claimed to see any more than something “black” in Gracie’s hand,
and never testified that he saw anything at all in Morris’s hand.
After the killing, Miller admittedly sought no medical aid for
the women and made no mention of the incident to his friends with
whom he subsequently drank and smoked, despite all the
34
“commotion” in the complex as police, including in helicopters,
investigated the murder. Thus, the State’s case with respect to
Miller’s unjustified killing of Morris was very strong and,
conversely, Miller’s evidence of justification was so weak it was
virtually non-existent.
Compared to that evidence, the two relatively minor incidents
from several years earlier, which did not involve deadly force or even
serious injury, were unlikely to sway the jury against Miller. This is
particularly so because Miller testified about the other incidents
himself and cast Gracie as the one at fault, just as he did in this case.
Moreover, the trial court’s reiterated limiting instructions reminded
the jury that it was not to consider Miller’s character, and that
Miller was only on trial for the crimes under indictment. “We
ordinarily presume that jurors follow their instructions.” Howell v.
State, 307 Ga. 865, 875 (3) (838 SE2d 839) (2020). And the jury heard
that Miller had already served time in jail for the two prior
incidents. This “reduces the risk that the jury convicted [Miller] to
punish him for his other crimes,” because the jury heard that Miller,
35
by his own testimony, “had already been punished for those crimes.”
Nundra v. State, 316 Ga. 1, 8 (2) 885 SE2d 790 (2023). Finally, the
State only presented two brief other-acts witnesses and made only
limited reference to the prior acts in its closing argument, which
further mitigates any undue prejudice on the jury. 12
Thus, Miller makes no “affirmative showing” that any
presumed error in the admission of the prior incidents “probably did
affect the outcome below,” Lupoe, 300 Ga. at 244, and this argument
fails. See, e.g., Ruthenberg v. State, 317 Ga. 227, 231 (2) (892 SE2d
728) (2023) (holding that admission of three prior misdemeanor
convictions pursuant to OCGA § 24-4-418 was not plain error given
overwhelming evidence of defendant’s guilt).
Based on the foregoing, we affirm.
Judgment affirmed. All the Justices concur, except Boggs, C.J.,
Peterson, P.J., Warren and Pinson, JJ., who concur specially, and
Bethel, J., who concurs in judgment only.
12 Defense counsel argued to the jury that the May 2018 incident was “a
relatively minor fact in this case, because who’s fooling who? That’s not what
Mr. Miller is on trial for.”
36
PINSON, Justice, concurring specially.
I agree with much of the majority opinion, but I would reject
Miller’s claim of plain error related to the evidence of “prior
difficulties” because any error in admitting that evidence did not
affect Miller’s substantial rights.
In my view, reasonable minds can differ about whether the
evidence of prior difficulties was properly admitted. “Prior
difficulties” evidence was broadly admissible under our old Evidence
Code, to make vague showings like “course of conduct” and the
defendant’s “bent of mind.” See, e.g., State v. Burke, 287 Ga. 377,
377-378 (695 SE2d 649) (2010). But such evidence is properly
excluded under our new Evidence Code if it merely shows the
“nature of the relationship” (for example) without some logical
connection to the crime through motive or some other nonpropensity purpose under Rule 404 (b). See Payne v. State, 313 Ga.
218, 222 (1) (869 SE2d 395) (2022) (evidence of prior difficulties may
be admissible “where the nature of the relationship between the
defendant and the victim sheds light on the defendant’s motive in
37
committing the offense charged” (quoting Flowers v. State, 307 Ga.
618, 621 (2) (837 SE2d 824) (2020)) (emphasis added))).13 That seems
like a fair description of the “prior difficulties” evidence here.
Motive, we have said, is “the reason that nudges the will and prods
the mind to indulge the criminal intent.” Harris v. State, 314 Ga.
238, 270 (3) (e) (875 SE2d 659) (2022) (citation and punctuation
omitted). But here the State described the prior difficulties evidence
merely as “paint[ing] the background” and “show[ing] the state of
their marriage,” and did not tie it to a specific motive or reason for
the charged crime of murder. See id. at 270-271 (3) (e). We have
cautioned that improper arguments focusing on a defendant’s
propensity and bad character may “masquerad[e]” as purported
motives that lack the necessary “specific, logical link” to the charged
crime, see id., and I am concerned that the evidence of prior
difficulties here might have made it into the trial in just that
13 A couple of our decisions might be read to suggest that prior difficulties
evidence is admissible without some logical connection to motive or some other
non-propensity purpose under Rule 404 (b). I disagree that such a reading is
the appropriate interpretation of Rule 404 (b).
38
fashion.
But we need not decide whether the trial court made a clear
and obvious error in not excluding that evidence, because it is quite
clear that any error did not affect Miller’s substantial rights. There
was only one eyewitness, Morris, who described in detail how Miller
had shot her and Gracie. Morris knew Miller well and had no reason
to lie. On the other side was only Miller’s self-serving claim that he
thought Gracie had a gun. Compared to that evidence, the two
incidents from years earlier, which did not involve deadly force or
even any serious injuries, were highly unlikely to sway the jury
against him. That is particularly so because Miller testified about
the incidents himself and cast Gracie as partly to blame — and
indeed, Miller’s counsel alluded to the prior incidents in his closing
argument, to the effect that they showed Miller and Gracie had a
tumultuous relationship and that it might have been reasonable for
Miller to think he needed to defend himself. In that sense, the prior
incidents may have helped Miller more than hurt him. So admitting
the prior difficulties evidence was highly unlikely to have changed
39
the outcome of Miller’s trial.
Because the decisions of this Court are precedent that is
binding on every one of the hundreds of courts across our State, we
have generally favored reaching consensus over issuing a split
decision on a closer question. Because we would almost certainly
reach consensus on the conclusion that any error in admitting the
evidence of prior difficulties did not affect Miller’s substantial rights,
I would do that here. As a result, I concur in the judgment and join
the Court’s opinion except for Division 1.
I am authorized to state that Chief Justice Boggs, Presiding
Justice Peterson, and Justice Warren join this concurrence.
40