Heade v. State

In the Supreme Court of Georgia

Decided: June 21, 2021

S21A0409. HEADE v. THE STATE.

LAGRUA, Justice.

A Gwinnett County jury found Appellant Demetrius Heade

guilty of malice murder and other crimes in connection with the

shooting death of Michael Harvey. 1 On appeal, Appellant contends

that (1) the trial court erred in ruling that evidence of Appellant’s

prior acts was admissible; (2) trial counsel provided ineffective

1 The crimes occurred on November 10, 2016. A Gwinnett County grand
jury indicted Appellant and his co-defendant, Tilisha Tate, for malice murder,
felony murder, aggravated assault, and possession of a firearm during the
commission of a felony. In May 2019, the jury found Appellant guilty of all
charges. The trial court sentenced Appellant to serve life in prison without
parole for malice murder, life in prison for felony murder, 20 years for
aggravated assault to run concurrently with malice murder, and 5 years for
the firearm possession to run concurrently with malice murder. Appellant filed
a motion for new trial on May 20, 2019, which he amended through new
counsel on October 7, 2019. Following an evidentiary hearing, on September
24, 2020, the trial court denied Appellant’s amended motion for new trial.
Appellant then timely filed a notice of appeal on September 30, 2020. This
Court docketed Appellant’s case for the term beginning in December 2020, and
the case has been submitted for a decision on the briefs.
assistance by conceding the admissibility of one of the acts; and (3)

these multiple errors cumulatively prejudiced Appellant. We

discern no reversible error on these grounds, but we have found two

sentencing errors with regard to his convictions for felony murder

and aggravated assault. For the reasons stated below, we affirm his

convictions in part and vacate in part.

1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed that on November 10, 2016, at

around 7:30 p.m., Appellant and Tilisha Tate, Appellant’s girlfriend

and co-defendant at trial, visited a Citgo gas station located in

Gwinnett County. The two were traveling in a stolen, gold 1996

Honda Odyssey minivan and were meeting with a man who had

agreed to purchase food for them because they had run out of money.

After accompanying this man into the gas station to buy food,

Appellant and Tate left the gas station in the gold minivan;

Appellant was driving, and Tate was lying down in the back seat.

As they were traveling on Button Gwinnett Drive, the victim,

Michael Harvey, attempted to pass the minivan in his truck and

2
accidentally struck the front driver side area of the minivan. The

impact startled and awoke Tate, and when she sat up, she saw

Harvey’s truck enter a ditch and hit a pole, after which Harvey

exited his truck and started running toward the minivan. According

to Tate, Appellant then picked up a rifle he had in the minivan and

shot Harvey from the driver’s seat, and Harvey “hit [] the ground.”

Appellant tried to drive away from the scene but was unable to do

so because one of the minivan’s tires was flat. Appellant and Tate

abandoned the minivan and fled toward some woods beside the road.

Tate had difficulty keeping up, having recently been shot in the leg

by Appellant.2 Appellant threw the rifle in a ditch, and the two

walked to the Las Palmas Apartments, a nearby apartment

complex. About an hour later, Appellant and Tate got a ride from

another man to the same Citgo gas station where the man replaced

the food Appellant and Tate had left in the minivan. Appellant and

Tate then stayed overnight with some friends at the apartment

complex.

2 We will address this incident in more detail in Division 2 (a) below.
3
 Officers responded to the shooting around 8:30 p.m. They

found Harvey lying in the roadway, apparently lifeless, with a bullet

wound to his chest. Officers also observed a black truck wrecked on

the opposite side of the road and an older model minivan about 80

yards away from the scene with a detached bumper and a single

bullet hole through the driver’s side window. A few yards away from

the minivan, officers recovered a loaded Winchester .30-.30 lever-

action rifle from a drainage ditch. When officers cycled the lever,

the rifle ejected an empty shell casing. 3 Harvey’s cause of death was

determined to be a gunshot wound to the torso, and a GBI ballistics

test concluded that bullet fragments recovered from Harvey’s body

were fired from the same rifle found at the scene.

Officers discovered that the minivan at the scene had been

stolen from Mobile, Alabama on November 2, 2016. Officers testified

that they called the police in Mobile, who advised that they were

investigating the November 2 theft of the minivan and the murder

3 At trial, one of the officers testified that when this type of weapon is
fired, the used shell casing remains in the chamber until the lever is cycled.
4
of the minivan’s owner, Lavester Brennan. Gwinnett County

officers learned that Appellant and Tate were suspects in the

Brennan murder and had used Brennan’s credit card in and around

the Mobile area after Brennan’s murder.

Officers obtained a search warrant for the minivan, and inside

they found male and female clothing, a box of ammunition, and

multiple .30-.30 rounds. Appellant’s fingerprints were found on the

windows, as well as on items inside the minivan. Officers found

receipts from Subway and Little Caesar’s restaurants. Appellant

was seen in surveillance video from the Little Caesar’s, and both

Appellant and Tate were seen in surveillance video from the

Subway. Plastic bags and food products from a Citgo gas station

were also found in the minivan. Officers went to the Citgo gas

station near the accident site, and surveillance video from that gas

station showed that Appellant and Tate made multiple visits to the

gas station before and after the murder. In one video, the two were

depicted leaving the gas station, entering a gold minivan, and

departing toward the Las Palmas apartment complex.

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 On November 11, the day after the shooting, officers returned

to the Citgo gas station. At about 5:30 p.m., Appellant and Tate

visited the gas station, and officers apprehended them and took

them into custody. Officers then interviewed Appellant and Tate

and learned that neither had prior connections to Harvey. Tate told

police that neither she nor Appellant were at the scene of the

shooting, and that she did not know what was going on. She denied

being involved in Harvey’s death and denied that she was in the van

at the time of the shooting.

Tate was extradited back to Mobile in December 2016. On

December 5, 2016, Gwinnett County officers investigating the

murder of Harvey traveled to Mobile and interviewed Tate again.

At that time, Tate confessed to being present when Appellant shot

Brennan in Mobile on November 2, 2016, when Brennan’s minivan

was stolen, as well as on November 10 when Appellant shot Harvey

in Gwinnett County. However, Tate denied knowing that Appellant

was planning to shoot Harvey. Tate indicated that she lied in her

previous interview because she was scared of Appellant.

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 2. At a pretrial motions hearing, the trial court ruled that the

State could present evidence at trial, over Appellant’s objection,

concerning the following three prior acts of Appellant: (1) an alleged

assault on Tate in Mobile (“the Tate assault”); (2) the alleged murder

of Brennan in Mobile (“the Brennan murder”); and (3) an alleged

armed robbery of Heather Crane in Gwinnett County (“the Crane

robbery”). The trial court concluded that the probative value of this

evidence outweighed any prejudicial effect and that the evidence

was admissible to show motive, opportunity, intent, knowledge, and

identity, as well as prior difficulties between Tate and Appellant.

See OCGA §§ 24-4-403 (“Rule 403”) and 24-4-404 (b) (“Rule 404 (b)”).

At trial, the jury heard testimony relating to the Tate assault, the

Brennan murder, and the Crane robbery, which showed the

following:

(a) The Tate Assault

According to Tate, in the summer of 2016, Appellant and Tate

started a romantic relationship in Mobile. During this time period,

Tate struggled with drug and alcohol addiction, and she regularly

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engaged in prostitution in exchange for money and drugs. According

to Tate, Appellant became possessive of Tate and angry about Tate’s

prostitution, but he allowed her to perform one “trick” a day so they

would have enough money to buy food and other necessities. After

Appellant became violent with Tate, Tate ended the relationship

and went to stay with friends. Appellant was upset and angry that

Tate left him. On October 19, 2016, Appellant confronted Tate at

one of her friend’s houses saying, “[W]e can do this the easy way or

the hard way.” Tate said she did not care “which way you want to

do it,” and Appellant pulled out a handgun and shot Tate in the leg.

Tate was transported by emergency personnel to a hospital for

treatment, where her leg was placed in a splint and, later, a red cast.

While Tate was in the hospital, she reported the shooting to law

enforcement officers. After Tate’s release from the hospital, she

stayed briefly with a friend, but she soon resumed her relationship

with Appellant.

(b) The Brennan Murder

According to Tate, on November 2, 2016, Tate and Appellant

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were at a house in Mobile when Lavester Brennan drove by in his

gold minivan. According to Tate, she regularly had sex with

Brennan in exchange for money and drugs, and she stopped him and

asked him to take her to get something to eat. Brennan then drove

Tate to get some food. When Tate returned, Appellant was angry

because he did not know why Tate left with Brennan. Tate met with

Brennan again later the same day to use drugs at Brennan’s house.

After Brennan and Tate got into an argument, Brennan began to

give Tate a ride back to where she was staying. While they were

stopped at a corner by Brennan’s house, Appellant pulled up beside

Brennan’s minivan in a truck. Appellant got out of the truck and

entered the minivan behind Tate, who was seated in the front

passenger seat. Tate got out of the minivan and heard a gunshot.

Appellant grabbed Tate’s collar and forced her back into the front

passenger seat of the minivan. Appellant then dragged Brennan out

of the driver’s seat and onto the street and drove away in the

minivan. Tate testified that she did not run or scream for help out

of fear of Appellant. Brennan died several days later from a gunshot

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wound to the chest.

According to Tate, Appellant and Tate drove to Appellant’s

cousin’s house, where Appellant picked up a .30-30 “shotgun.” While

they were at the cousin’s house, Appellant cut the red cast off Tate’s

leg with a knife. Tate testified that she needed the cast and could

not put any pressure on her foot, but Appellant demanded they

remove it, stating, “[T]hey was going to be looking for somebody with

a red cast.” Appellant and Tate then drove around the Mobile area

in the minivan and made purchases, including shoes, televisions,

cell phones, and beauty products, at several stores using Brennan’s

credit card, which had been left in the minivan. 4 When they tried to

purchase another television at Walmart, the card was declined. At

that point, Appellant and Tate had very little money left, and they

left the area and drove to Gwinnett County in Brennan’s minivan.

Around this time, Tate used a cell phone she had purchased to find

news articles about what happened to Brennan in Mobile, but could

4The activity on Brennan’s credit card assisted authorities in identifying
Appellant and Tate as the suspects in Brennan’s murder.
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not find anything. The two arrived at the Peachtree Inn and Suites

in Gwinnett County on or about November 7, 2016, and slept in the

minivan for a couple of days. They also visited and stayed at the Las

Palmas Apartments between November 9 and 11. At some point

before Harvey’s murder, Appellant and Tate tried to pawn

Brennan’s minivan in Gwinnett County because they were out of

money, but they could not do so because they did not have the title

to the vehicle.

(c) The Crane Robbery

According to Tate, Appellant robbed Heather Crane before

noon on November 10, the day of Harvey’s murder. Appellant

threatened Crane, a guest of the Peachtree Inn and Suites, by

pointing the rifle at her and taking her purse. After removing the

little money found inside Crane’s purse, Appellant abandoned the

purse at a Subway.

Dominique Upshaw, Crane’s boyfriend at the time, testified

that after the robbery, 5 Crane entered their shared hotel room and

5 Crane passed away prior to trial.
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was “frantic.” Crane said a man in a vehicle approached her outside

the hotel, pointed a gun at her, and robbed her. Crane then reported

the theft to hotel staff. Rana Jawanda, the owner of the hotel,

retrieved surveillance video of the robbery and showed Crane the

video of the theft. During their subsequent conversation, Crane

gave Jawanda a more detailed description of the events, including

that the perpetrator was traveling in a Japanese model van with a

female occupant. Crane stated that the man exited the van and held

Crane at gunpoint with an old, rusted, double-barrel gun. At trial,

Jawanda identified Brennan’s minivan as the one shown in the hotel

surveillance video depicting the robbery of Crane.

3. Turning to Appellant’s specific contentions with respect to

the trial court’s admission of these prior acts, Appellant contends

that the trial court erred (a) by ruling in its order denying

Appellant’s motion for new trial that these acts were intrinsic

evidence, and (b) by admitting these acts at trial as extrinsic

evidence. We conclude that the evidence was properly admitted as

intrinsic evidence, so we need not address its potential admission as

12
extrinsic evidence under Rule 404 (b). See Smith v. State, 307 Ga.

263, 272 (2) (c) (834 SE2d 1) (2019) (“[B]ecause the evidence was

intrinsic, it was outside the reach of Rule 404 (b).” (citation and

punctuation omitted)).

Evidence is admissible as intrinsic evidence when it is (1)
an uncharged offense which arose out of the same
transaction or series of transactions as the charged
offense, (2) necessary to complete the story of the crime,
or (3) inextricably intertwined with the evidence
regarding the charged offense . . . . [E]vidence pertaining
to the chain of events explaining the context, motive, and
set-up of the crime is properly admitted if it is linked in
time and circumstances with the charged crime, or forms
an integral and natural part of an account of the crime, or
is necessary to complete the story of the crime for the
jury . . . . [E]vidence of other acts is inextricably
intertwined with the evidence regarding the charged
offense if it forms an integral and natural part of the
witness’s accounts of the circumstances surrounding the
offenses for which the defendant was indicted. And this
sort of intrinsic evidence remains admissible even if it
incidentally places the defendant’s character at issue.

Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350)

(2017) (citations and punctuation omitted). “[T]here is no bright-

line rule regarding how close in time evidence must be to the

charged offenses, or requiring evidence to pertain directly to the

13
victims of the charged offenses, for that evidence to be admitted

properly as intrinsic evidence.” Harris v. State, 310 Ga. 372, 381 (2)

(b) (850 SE2d 77) (2020). “[W]e review a trial court’s ruling

admitting evidence as intrinsic for an abuse of . . . discretion.” Id. at

377.

Here, all three acts were part of the chain of events leading to

the charged crimes. The Tate assault illustrated Tate’s tumultuous

relationship with Appellant and explained why she was afraid of

Appellant. It demonstrated why she stayed with Appellant until

and after Harvey’s murder, even initially denying their involvement

because she feared Appellant. See McCammon v. State, 306 Ga. 516,

522 (2) (832 SE2d 396) (2019) (co-defendant’s testimony that he and

appellant smoked marijuana together six months before the murder,

“[w]hile . . . further afield from the charged crimes, . . . was a

natural part of [the co-defendant’s] account of his relationship with

[a]ppellant”); see also Williams, 302 Ga. at 486 (prior act helped

explain to jury, among other things, why a victim refused the

defendant’s advances and the motive for the victim to end her

14
relationship with the defendant). The evidence also explained why

Tate had a red cast on her leg, which Appellant later sought to

remove to avoid detection by authorities. When considered in light

of the other evidence in this case, evidence of the Tate assault was

reasonably necessary to complete the story for the jury and was

therefore intrinsic evidence. See Harris, 310 Ga. at 378 (2) (b)

(evidence was necessary to complete story for the jury, and therefore

intrinsic, where it explained motivation and offered context to other

witnesses’ accounts).

Similarly, the Brennan murder explained why Appellant and

Tate were driving Brennan’s gold minivan and why they had fled

from Mobile, Alabama to Gwinnett County. Through the minivan,

Appellant was tied not only to Brennan’s murder, but also to the

credit card transactions in Mobile, the Crane robbery, and

ultimately to Harvey’s murder. Perhaps most importantly, the

Brennan murder explained Appellant’s motive to evade authorities.

Appellant went so far as to remove the red cast from Tate’s leg

immediately after the Brennan murder because he believed “they

15
was going to be looking for somebody with a red cast.” This motive

explained why he shot Harvey; killing Harvey after the car crash

would delay the police response to the crash and eliminate the only

witness. Indeed, Appellant continued to evade capture after

murdering Harvey, as Tate testified that, as they were fleeing the

scene, Appellant said, “[S]ee what you made me do?” He also talked

about how he was going to make Tate engage in more prostitution

to get money for a bus ticket. Therefore, the Brennan murder was

also an important part of the story and admissible as intrinsic

evidence.

The Crane robbery was the next link in Appellant and Tate’s

crime spree. After stealing Brennan’s minivan and exhausting the

credit cards they found in the minivan, Appellant and Tate were in

need of money. The armed robbery, in which Appellant used the

stolen minivan and the rifle, was how he obtained money.

Surveillance video indicated that the perpetrator of the robbery was

in a gold minivan identical to the one Appellant had stolen from

Brennan. Appellant later abandoned the purse he stole from Crane

16
at the same Subway restaurant for which a receipt was found in the

van after the Harvey murder. And the robbery added another

reason for Appellant to avoid capture by the police. Therefore, the

Crane robbery, while not strictly necessary to the prosecutor’s case,

was nonetheless reasonably necessary to complete the story for the

jury. See Harris, 310 Ga. at 379 (2) (b) (“[A]lthough evidence of the

uncharged criminal conduct may not be necessary to prove the

charged offense, there is no requirement that the government

proffer only enough evidence to allow the jury to convict, and no

more, and this evidence helped the jury understand the sequence of

events that led to the discovery of the firearm, and to [the

appellant’s] arrest.” (citation and punctuation omitted)).

Accordingly, evidence of the Crane robbery was relevant as intrinsic

evidence.

“Relevant [intrinsic] evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations

of undue delay, waste of time, or needless presentation of cumulative

17
evidence.” OCGA § 24-4-403. “There is no mechanical solution for

this balancing test,” and “a trial court must undertake in each case

a considered evaluation of the proffered justification for the

admission of such evidence and make an independent

determination.” Jones, 297 Ga. at 163 (3). We have explained that

this balance should be struck in favor of admissibility. See Carston

v. State, 310 Ga. 797, 803 (3) (b) (854 SE2d 684) (2021); see also Hood

v. State, 309 Ga. 493, 500-501 (2) (847 SE2d 172) (2020) (“[O]ther

acts evidence should be excluded if it constitutes [a] matter of scant

or cumulative probative force, dragged in by the heels for the sake

of its prejudicial effect.” (citation and punctuation omitted)). “[I]n

reviewing issues under Rule 403, we look at the evidence in a light

most favorable to its admission, maximizing its probative value and

minimizing its undue prejudicial impact.” Anglin v. State, 302 Ga.

333, 337 (3) (806 SE2d 573) (2017) (citation omitted).

As explained above, the three prior acts here were probative to

explaining the context of the charged crimes, the relationship

between Appellant and Tate, why Appellant and Tate were in a

18
stolen gold minivan with a rifle, why Tate was reluctant to leave

Appellant, and why Appellant and Tate were in Gwinnett County in

the first place. Most importantly, the Brennan murder and the

Crane robbery were highly probative of Appellant’s motive for

killing Harvey after Harvey caused an accident – Appellant was

fleeing authorities and evading apprehension for Brennan’s murder

and Crane’s robbery, as the prosecutor argued at trial.

Furthermore, the trial court gave a limiting instruction to the jury,

directing it to consider the evidence only on the issues of intent,

identity, knowledge, motive, and opportunity, which reduced the

prejudicial impact to Appellant. Thus, the trial court could

determine, in its discretion, that the prejudicial impact of the three

acts, while significant, was not unfair and did not substantially

outweigh the probative value of this evidence. See Mosley v. State,

307 Ga. 711, 715 (2) (838 SE2d 289) (2020) (evidence suggested that

appellant engaged in a crime spree, and “though the intrinsic

evidence indirectly implicated [the appellant] in additional criminal

acts and had only minimal evidentiary value, we cannot say that the

19
trial court abused its discretion in concluding that the probative

value of this evidence was not substantially outweighed by the

danger of unfair prejudice”); see also Anglin, 302 Ga. at 337 (3) (“[I]n

a criminal trial, inculpatory evidence is inherently prejudicial; it is

only when unfair prejudice substantially outweighs probative value

that [Rule 403] permits exclusion.” (Citation and punctuation

omitted)). Accordingly, we hold that the trial court did not abuse its

discretion in finding that the three prior acts were admissible as

intrinsic evidence.

Appellant further argues that these three acts were

inadmissible as extrinsic evidence under Rule 404 (b).6 However,

the trial court provided a limiting instruction to the jury, which

narrowed the scope for which the jury could consider the evidence

and thus minimized any potential harm. Because the evidence was

properly admitted as intrinsic evidence, however, we need not

address its admission as extrinsic evidence under Rule 404 (b). See

6 As discussed above, the acts would have been admissible under Rule
404 (b) at least for the purpose of motive.
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Smith, 307 Ga. at 272 (2) (c). See also Williams v. State, 302 Ga.

474, 485 (IV) (d) (807 SE2d 350) (2017) (“The limitations and

prohibition on other acts evidence set out in OCGA § 24-4-404 (b) do

not apply to intrinsic evidence.” (citation and punctuation omitted));

United States v. Rolett, 151 F3d 787, 790 (8th Cir. 1998) (“Although

both parties treated the evidence of other acts as [federal] Rule 404

(b) evidence, this court finds that such evidence is intrinsic evidence

which is inextricably intertwined as an integral part of the

immediate context of the crime charged.” (citation and punctuation

omitted)). Accordingly, Appellant’s enumerations regarding the

admissibility of the three prior acts fails.

4. Appellant next raises two related enumerations of error

regarding the admission of the Tate assault evidence: that (a) the

trial court erred in ruling that the Tate assault was admissible as a

“prior difficulty” and (b) trial counsel provided constitutionally

deficient performance by conceding that the Tate assault was

admissible as a prior difficulty.

(a) At the pretrial motions hearing, the State proffered the Tate

21
assault evidence as a prior difficulty between Appellant and Tate,

arguing that it was admissible to show the state of their

relationship. Appellant’s counsel conceded that this particular

incident was admissible as a prior difficulty and did not object to its

admission.

Because Appellant did not object to the admission of the Tate

assault, we review this claim only for plain error. See Brewner v.

State, 302 Ga. 6, 12 (III) (804 SE2d 94) (2017) (plain error review

where appellant did not assert any objection when other acts

evidence was first introduced at trial). To prove plain error, among

other things, “there must be an error or defect – some sort of

deviation from a legal rule – that has not been intentionally

relinquished or abandoned, i.e., affirmatively waived, by the

appellant.” Id. Appellant conceded that the Tate assault evidence

was admissible. Thus, Appellant affirmatively waived this error

and cannot show plain error. Accordingly, this enumeration of error

fails.

(b) Appellant contends that his trial counsel was

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constitutionally ineffective for conceding the admissibility of the

Tate assault evidence. We disagree.

To succeed on a claim of ineffective assistance of counsel,

Appellant “must prove both that his lawyer’s performance was

professionally deficient and that he was prejudiced as a result.”

Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

and punctuation omitted); see also Strickland v. Washington, 466

U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “[I]f [Appellant]

fails to establish one prong, we need not examine the other.”

Armstrong v. State, 310 Ga. 598, 607 (5) (852 SE2d 824) (2020)

(citation and punctuation omitted).

We have explained that “[t]here is no deficient performance

when an attorney fails to object to admissible evidence.” Perera v.

State, 295 Ga. 880, 884-885 (3) (b) (763 SE2d 687) (2014). As

discussed above, the Tate assault was admissible as intrinsic

evidence, and therefore trial counsel did not perform deficiently.

Appellant’s ineffective assistance claim accordingly fails.

5. In his final enumeration of error, Appellant contends that

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the cumulative effect of the alleged errors warrants a new trial. See

State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020) (“We hold

that the proper approach [to assessing multiple trial court

errors] . . . is to consider collectively the prejudicial effect, if any, of

trial court errors, along with the prejudice caused by any deficient

performance of counsel). Here, Appellant has shown no error with

respect to the admission of the three prior acts, as they were

admissible as intrinsic evidence. Accordingly, there was no error,

much less any cumulative error, and Appellant’s enumeration fails.

6. Although Appellant does not raise any sentencing issues on

appeal, we have identified two errors in his sentencing. See Dixon

v. State, 302 Ga. 691, 696-97 (4) (808 SE2d 696) (2017) (“We have

the discretion to correct merger errors sua sponte . . . because a

merger error results in an illegal and void judgment of conviction

and sentence.”). Appellant was charged with and found guilty of

malice murder, felony murder predicated on aggravated assault,

aggravated assault, and possession of a firearm during the

commission of a felony. The trial court sentenced Appellant to serve

24
life in prison without the possibility of parole for malice murder; life

in prison concurrent for felony murder; 20 years concurrent for the

predicate felony of aggravated assault; and five years consecutive

for the firearm possession charge.

The trial court’s sentencing with regard to the felony murder

was error, as the felony murder count should have been vacated by

operation of law. “[W]hen a valid guilty verdict is returned on both

malice murder and felony murder of the same victim, the defendant

should be sentenced for the malice murder, and the alternative

felony murder count stands vacated by operation of law as simply

surplusage.” Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d 1) (2014)

(citation and punctuation omitted; emphasis in original). Here,

there was only one victim in relation to both the malice murder and

felony murder counts. “It follows that the trial court erred in failing

to sentence [Appellant] only on the malice murder count and that

the separate sentence[] on the [alternative] felony murder [count]

must be vacated,” because the felony murder conviction was “simply

surplusage.” Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479)

25
(1993). Accordingly, we vacate Appellant’s conviction and sentence

for felony murder.

The trial court’s sentencing with regard to the aggravated

assault count was also error. “When the same conduct of an accused

may establish the commission of more than one crime, the accused

may be prosecuted for each crime. He may not, however, be

convicted of more than one crime if . . . [o]ne crime is included in the

other.” OCGA § 16-1-7 (a) (1). Separate convictions for the malice

murder and aggravated assault of a single victim may be permitted

where there is a deliberate interval between the infliction of a non-

fatal injury and a subsequent fatal injury. See Johnson v. State, 300

Ga. 665, 666-667 (2) (797 SE2d 903) (2017). Here, however,

Appellant fired a single bullet that killed Harvey, and the single shot

was the basis for both the aggravated assault and the malice murder

charges; there was no evidence of a deliberate interval. Therefore,

the trial court should have merged the aggravated assault charge

with the malice murder conviction. Accordingly, we vacate

Appellant’s conviction and sentence for aggravated assault. See id.

26
at 667 (“In the absence of some evidence of a ‘deliberate interval’

between the infliction of any of the wounds the victim suffered, we

must vacate [the appellant’s] aggravated assault conviction.”).

Judgment affirmed in part and vacated in part. All the Justices
concur, except McMillian, J., who concurs in judgment only in
Division 3.

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