SILLAH v. THE STATE (Two Cases) ( 2023 )

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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22A0939. SILLAH v. THE STATE.
S22A1175. MURRAY v. THE STATE.
PETERSON, Presiding Justice.
After a joint trial, Darnell Sillah and Andrew Murray were
convicted of malice murder for the shooting death of Paul
Sampleton, Jr., as well as various other crimes. 1 On appeal, Sillah,
1Sampleton was killed on December 19, 2012. In June 2014, a Gwinnett
County grand jury indicted Sillah, Murray, and Tavaughn Saylor in a 20-count
indictment charging them with: malice murder (Count 1); two counts of felony
murder, predicated on armed robbery and burglary (Counts 2-3); armed
robbery (Count 6); burglary (Count 7); false imprisonment (Count 8);
aggravated assault of Stevo Hrnjak (Count 9); criminal damage to Hrnjak’s
property (Count 10); burglary of Joyce Morris (Count 12); conspiracy to rob
Sampleton (Count 13); conspiracy to commit burglary at Sampleton’s residence
(Count 14); violation of the Racketeer Influenced and Corrupt Organizations
(RICO) Act (Count 17); and criminal gang activity (Count 18). Sillah was
separately charged with burglary of John Dugas (Count 11), while Murray and
Saylor were separately charged with felony murder predicated on possession
of a firearm by a convicted felon and possession of a firearm by a convicted
felon (Counts 4 and 15 for Murray; Counts 5 and 16 for Saylor). Murray and
Saylor also received recidivism notices (Counts 19 and 20).
After a joint trial in October 2014, the jury found all three defendants
guilty as to all counts against them except Count 12. The trial court sentenced
Sillah as follows: life in prison without parole on Count 1, with Counts 2-3
who was a juvenile when Sampleton was killed, argues that (1) the
evidence was insufficient to support his conviction for criminal gang
activity; (2) the trial court erred by admitting his custodial
statement; (3) the trial court erred by denying his motion to sever;
(4) the trial court failed to consider Sillah’s “youth and attendant
vacated by operation of law; life in prison on Count 6; 20 years in prison on
Counts 7, 9, 11, and 17; 10 years in prison on Counts 8, 10, 13 and 14; and 15
years in prison on Count 18. Each sentence after Count 1 was made consecutive
to all preceding counts, making Sillah’s total sentence life without parole,
followed by life, followed by 135 years. Murray and Saylor were sentenced to
life without parole on Count 1, life in prison for Count 6; 20 years in prison on
Counts 7, 9, and 17; ten years for Counts 8, 10, 13 and 14; 5 years for the
firearm possession count; and 15 years for Count 18. The felony murder counts
were vacated by operation of law and all counts were to run consecutively,
giving Murray and Saylor total sentences of life without parole, followed by
life, followed by 120 years.
Sillah filed a motion for new trial in October 2014, which he
subsequently amended, and that amended motion was denied on March 14,
2022. Sillah timely appealed, and his case was docketed to the August 2022
term of this Court and submitted for a decision on the briefs.
Murray also filed a motion for new trial in October 2014 and then
engaged in a series of dilatory tactics, leading the trial court to reject his
motion without addressing the merits. See Murray v. State, 312 Ga. 863, 864-
868 (1) (866 SE2d 385) (2021). We vacated the order and remanded the case
for the trial court to consider the merits of Murray’s motion for new trial. Id.
at 870 (3). Upon remand, the trial court denied Murray’s motion for new trial.
Murray appealed, his case was docketed to this Court’s August 2022 term, and
the case was submitted for a decision on the briefs.
Saylor has also appealed from his convictions, but his appeal, which was
docketed to the term beginning in December 2022, will be considered
separately.
2
characteristics” before sentencing him to life in prison without the
possibility of parole (“LWOP”); (5) this sentence violated the Eighth
Amendment of the United States Constitution; and (6) the trial court
committed other sentencing errors. We agree with Sillah that the
trial court should have merged his convictions for conspiracy to
commit armed robbery and conspiracy to commit burglary, so we
vacate those convictions. We otherwise affirm.
Murray, proceeding pro se on appeal, appears to argue that the
trial court failed to consider the merits of his motion for new trial
and that the State failed to present evidence of guilt at the motion
for new trial hearing. The record belies Murray’s first claim, and the
State had no burden of proof at the hearing, negating the second
claim. So we affirm.
Viewed in the light most favorable to the verdicts, the trial
evidence showed the following. Sillah, known as “Young,” was a
member and leader of the Young Wavy Goons (YWG), a gang
affiliated with the Bloods gang and whose members were mostly
high school students. The gang committed several robberies,
3
burglaries, and car thefts.
In September 2012, Sillah and fellow YWG member Romaine
Stewart broke into the house of John Dugas, whose son attended
high school with Sillah and Stewart. Sillah and Stewart stole
electronics and several firearms from Dugas, including a .45-caliber
Sig Sauer.
In December 2012, Sillah was 15 years old and was living with
his grandmother and co-defendants Andrew Murray, who is his
uncle, and Tavaughn Saylor, who had relocated to Georgia from New
York with Murray. Murray was a gang member affiliated with the
Bloods street gang. In late November or early December, Sillah and
fellow YWG gang members Stewart and Achiel Morgan discussed
robbing Sampleton, a high school classmate, and taking shoes from
him. Sampleton had a collection of high-priced sneakers that he
would sometimes trade or sell. Murray sent Sillah text messages in
mid-December asking “what time son got off the bus?” and “Do son
have football practice?” Sampleton was on his high school football
team.
4
On December 17, Stewart, Morgan, and Sillah were heading
home on the school bus when they decided to carry out their plan to
rob Sampleton after Stewart gave Sampleton a haircut. After
Stewart finished cutting Sampleton’s hair, he and Sampleton
walked to Sampleton’s house so that Stewart could get paid. As they
got close to Sampleton’s neighborhood, Sillah, who had called
Stewart repeatedly for updates, told Stewart, “you’re supposed to let
him walk by hisself [sic] . . . . you’re messing up the move, you’re
messing it up[.]” Meanwhile, Murray’s car drove by. Stewart, Sillah,
and Morgan did not carry out the robbery that day.
Two days later, Sampleton had an early release from school.
Sampleton’s mother began calling her son at home around 11:45
a.m. to check on him, but when he did not answer after numerous
calls, she asked his father to go to her residence in Grayson to check
on Sampleton. Sampleton’s father, who arrived at the house around
1:45 p.m., found Sampleton face-down on the kitchen floor, with duct
tape over his mouth and his hands bound behind his back.
Sampleton was dead and had been shot three times in the head with
5
a .45-caliber gun, possibly a Sig Sauer. A mail carrier in Sampleton’s
area testified that she heard three gunshots between 12:45 p.m. and
1:15 p.m.
Sampleton was shoeless, the house and garage had been
ransacked, and “Home Rep 5CK” was written on a bathroom mirror.
A gang expert testified that that “Rep 5” signified that the
perpetrator was representing “People Nation,” which was comprised
of several gangs including the Bloods gang, and that “CK” stood for
“Crip Killer.” Electronics, Sampleton’s Billionaire Boys Club
sweatshirt, several pairs of his Nike shoes, other clothing, and a
bottle of liquor were missing.
Around 2:30 p.m. on the day of Sampleton’s death someone
fired a gun at Stevo Hrnjak while he was driving south on Interstate
85. Hrnjak stated that he and a silver BMW had been traveling for
some time before they both got off at the same exit in Norcross, and
when he tried to pass the BMW following a turn, a man in the BMW
pulled out a gun and fired two shots at him. Hrnjack said there were
at least two men riding in the front of the car but could not tell if
6
there was a passenger in the rear because of the vehicle’s dark-
tinted windows. After speaking to police, Hrnjak went searching for
the silver BMW, finding it at an apartment complex where Anthony
English lived.
English frequently bought goods from Murray and re-sold
them. English testified that Murray, Sillah, and a man he did not
recognize came to his apartment on December 19. They arrived in a
silver BMW and Sillah and Murray were carrying handguns.
Murray asked if English could sell some items for him. English sold
many of the items that were stolen from the Sampleton residence,
but he kept the Billionaire Boys Club sweatshirt for himself. Sillah
also sold some of the stolen electronics himself and tried to sell a .45-
caliber gun.
The defendants were ultimately arrested. At the time of their
arrest, Sillah and Saylor were in a silver BMW that matched the
description given by Hrnjak. Sillah was interviewed by the police
and a recording of the interview was played at trial. He admitted
that he and Stewart discussed robbing Sampleton, but denied
7
participating in the crime. Sillah claimed that on the day of
Sampleton’s murder, Murray and Saylor picked him up from school
and took him back to his neighborhood in a silver BMW. Sillah said
he got out of the car just outside his neighborhood and went to meet
“Samantha,” but Sillah refused to provide any other identifying
information because he claimed “Samantha” would allege that he
raped her. He said the two of them traveled in her car, which he
could not describe other than as “brown,” to a park, where he smoked
marijuana and they had sex. Cell phone records contradicted Sillah’s
account of where he claimed to have been.
Timothy Johnson, who was an inmate with Sillah, testified at
trial that Sillah admitted to participating in Sampleton’s killing.
Sillah told Johnson that he, Murray, and Saylor entered
Sampleton’s home, Saylor tied up Sampleton, and Murray shot
Sampleton. Sillah said that he went “back and forth from searching
the home to checking the front of the home, being more of a lookout.”
Sillah told Johnson that Murray “didn’t have to shoot [Sampleton]
in the head.” Sillah asked Johnson whether he could still be found
8
guilty of murder even if it could not be proven that he was in
Sampleton’s house.
Case No. S22A0939
1. Sillah argues that the evidence was insufficient to support
his conviction for criminal street gang activity. We disagree.
When evaluating the sufficiency of evidence, 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 (99 SCt 2781, 61 LE2d 560) (1979). We
do not resolve conflicts in the evidence or determine the credibility
of witnesses; instead, we view the evidence in the “light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” Hayes v. State, 292 Ga.
506, 506 (739 SE2d 313) (2013) (citation and punctuation omitted).
The jury’s resolution of these issues “adversely to the defendant does
not render the evidence insufficient.” Graham v. State, 301 Ga. 675,
677 (1) (804 SE2d 113) (2017) (citation and punctuation omitted).
Sillah was charged with violating the Street Gang Act on the
9
basis that, while associated with a criminal street gang, he
participated in criminal gang activity through the commission of at
least one of several crimes, including murder, felony murder, armed
robbery, and burglary. To convict Sillah, the State had to prove
beyond a reasonable doubt the existence of a “criminal street gang,”
that Sillah was associated with the gang, that he committed one of
the offenses listed in OCGA § 16-15-3 (1), and that the commission
of the predicate offense was intended to further the interests of the
gang. See McGruder v. State, 303 Ga. 588, 591-592 (II) (814 SE2d
293) (2018). A “criminal street gang” is defined as “any organization,
association, or group of three or more persons associated in fact,
whether formal or informal, which engages in criminal street gang
activity[.]” OCGA § 16-15-3 (3).
Sillah does not argue that the evidence was insufficient to show
that he committed one of the enumerated offenses. Nor does he
argue that the evidence failed to show the existence of a criminal
street gang or that he was associated with it. Indeed, the evidence
set forth above was sufficient to establish these elements. Instead,
10
Sillah argues that the evidence was insufficient to show that the
predicate acts furthered the interest of a particular gang when the
evidence did not show that the defendants were in the same gang or
that the defendants had a common interest.
A criminal street gang expert testified that YWG, the gang of
which Sillah was the leader, was a subset of the United Blood
Nation, otherwise known as the “Bloods.” There was also evidence
showing that YWG had committed several felonies, and that
criminal street gangs generally committed such crimes in order to
obtain money and to gain status or reputation. Although there was
no evidence that Murray or Saylor were in YWG, the evidence did
show that Murray was a member of a Bloods gang, and there was
evidence that the crimes enhanced the Bloods gang’s status when
gang graffiti representing the Bloods gang — “Home Rep 5CK” —
was left at the scene of the crime. Although Sillah argues that there
was no evidence introduced that he was aware of the graffiti, the
jury was authorized to conclude otherwise based on evidence that,
at a minimum, Sillah helped ransack the house. This evidence was
11
sufficient to support Sillah’s conviction. See Hayes v. State, 298 Ga.
339, 342-343 (a) (781 SE2d 777) (2016) (defendant’s association with
a gang and his participation in the gang’s activities before and
during the crimes charged provide the required nexus between his
criminal acts and the intent to further the gang’s interests to obtain
money, power and respect); Morey v. State, 312 Ga. App. 678, 686-
687 (2) (b) (719 SE2d 504) (2011) (affirming conviction under OCGA
§ 16-15-4 where there was testimony that defendant was “repping
his gang” while committing crimes).
2. Sillah argues that the trial court erred in admitting his
custodial statement because, during his interview, he invoked his
right to remain silent by repeatedly saying he did not want to talk
to the detective and that his right was not honored. We disagree.
A video recording of the interview shows that Sillah was
interviewed by Sergeant Atwater of the Gwinnett County Police
Department. Early in the interview, Sillah said he did not want to
talk without his grandmother present. Sergeant Atwater responded
that he would read Sillah certain warnings anyway and then Sillah
12
could decide what he wanted to do. After receiving Miranda
warnings tailored to juvenile defendants, Sillah declined to sign a
waiver form and said he would not talk until his grandmother
arrived. More than an hour later, Sillah’s grandmother arrived at
the police station, was brought into the interview room, and talked
privately with Sillah, with certain files being left on the table. When
Sergeant Atwater returned to the room, he explained that he left the
files on the table so Sillah’s grandmother could understand Sillah’s
involvement in criminal activity. Sergeant Atwater told Sillah that
he wanted answers, leading to an argument about whether Sillah
said he would cooperate. Sillah maintained that he never agreed to
provide information to the police, and said he was not personally
involved, “that’s all I’m going to tell y’all,” and “that’s the only thing
I can really say” before explaining that he might know some things
in general.
Sergeant Atwater said that he would not mind knowing what
Sillah “knew in general” and explained that it was in Sillah’s
interest to talk since he knew Sillah had information about
13
Sampleton’s murder. Sergeant Atwater asked Sillah if he wanted to
talk, and Sillah responded, “I ain’t got nothing to say.” Sillah
repeated that he did not do anything and had nothing to say. After
a brief pause, Sillah said he did not have anything to say because he
did not know anything, then asked what Sergeant Atwater wanted
Sillah to tell him. Sergeant Atwater replied that he wanted Sillah to
say everything he knew and told Sillah that he should worry about
himself when Sillah said he did not want to tell on anyone. Sillah
questioned how Sergeant Atwater knew he had information about
Sampleton’s death, challenged aspects of Sergeant Atwater’s
information, suggested that he look at other suspects like Murray,
and again denied participating in any murder. Sillah then said, “I
don’t want to talk no more.” After indicating his disappointment
with Sillah, Sergeant Atwater left the room.
Sergeant Atwater reentered the room sometime later, and
Sillah’s grandmother began to engage with Sergeant Atwater.
Sergeant Atwater refused to talk to her about the case in Sillah’s
presence on the basis that Sillah said he did not want to talk.
14
Sergeant Atwater informed Sillah that he would not be going home
and was going to be charged with murder. Sergeant Atwater exited
again, leaving Sillah and his grandmother in the room.
While Sergeant Atwater was out of the room, Sillah’s
grandmother asked Sillah several times to tell police anything he
knew, left the room repeatedly, and then relayed to Sillah
information she was learning from the police. When Sillah heard
that Stewart was providing information to the police, Sillah said he
wanted Stewart to sit in front of him so he could confirm what
Stewart had reported. Sergeant Atwater brought Stewart into the
room and told Sillah to be quiet while Stewart was talking. Sergeant
Atwater recounted what Stewart told him when Stewart began to
equivocate, and Stewart ultimately confirmed Sergeant Atwater’s
report. Stewart left the room and Morgan was brought in next. When
Morgan began to say what he told police, Sillah challenged him,
prompting Sergeant Atwater to yell at Sillah at length, telling him
to “be quiet.” When Sergeant Atwater finished yelling, Sillah briefly
attempted to tell a version of what happened. Morgan and Sergeant
15
Atwater then left the room.
Sillah and his grandmother spoke for a few minutes before
Sillah asked his grandmother to “tell the man to come back in.”
Sergeant Atwater came back in and asked Sillah if he wanted to
talk. Sillah indicated that he did and signed a waiver form after
again receiving Miranda warnings.
On appeal, Sillah argues that he made several assertions of his
right to remain silent in the above exchange and that his invocation
was not scrupulously honored. His claim fails.
The law is clear that, when a person in the custody of law
enforcement officers unambiguously and unequivocally
invokes his right to remain silent in connection with their
interrogation, the interrogation must cease immediately.
Whether an invocation is unambiguous and unequivocal
depends on whether the accused articulated a desire to
cut off questioning with sufficient clarity that a
reasonable police officer in the circumstances would
understand the statement to be an assertion of the right
to remain silent.
Davidson v. State, 304 Ga. 460, 468-469 (4) (819 SE2d 452) (2018)
(citations and punctuation omitted). If a defendant invokes his right
to remain silent, his subsequent statements are admissible only if
16
he “initiates the communications with law enforcement authorities,”
which requires “not only that the defendant speak up first but also
that his words reflect a desire to discuss the investigation at hand.”
State v. Pauldo, 309 Ga. 130, 135 (2) (844 SE2d 829) (2020) (citations
and punctuation omitted).
Despite Sillah’s claims that he made repeated assertions of his
right to remain silent, he does not identify precisely in his brief what
statements constituted assertions of his right to remain silent.
Nevertheless, our review of the recording shows that out of several
possible statements indicating a desire to stop speaking, only one
statement — “I don’t want to talk no more” — was an unambiguous
invocation of his right to remain silent. But as explained further
below, Sillah later re-initiated communications with the police.
Sillah’s statement that he would not speak to the police until
his grandmother was present was not an unequivocal statement
that he did not want to talk at all. When the grandmother did arrive,
Sillah denied personal involvement and again indicated that he did
not want to talk by saying that “that’s all I’m going to tell y’all” and
17
“that’s the only thing I can really say.” But these statements were
not unequivocal assertions of the right to remain silent because,
after making these statements, he continued to speak unprompted,
saying that he might know some things in general. See Goodman v.
State, 313 Ga. 762, 769 (2) (b) (873 SE2d 150) (2022) (defendant’s
statements that he did not want to talk were not unambiguous
assertions of right to remain silent because context showed that,
despite his statements, the defendant continued talking without any
prompting from the police).
After Sillah said he might know some things in general,
Sergeant Atwater responded that he would like to know those things
and that it was in Sillah’s interest to talk. Although Sillah repeated
that he had nothing to say, he also asked what Sergeant Atwater
wanted him to say, asked how Sergeant Atwater knew Sillah had
information about the murder, and then challenged that
information. These statements also do not reflect an unambiguous
assertion of the right to remain silent. See Pauldo, 309 Ga. at 143-
144 (5) (defendant’s “continued efforts to discuss the case made it
18
unclear whether he wished to talk to the detective or not”).
Until this point, Sillah had not made an unequivocal assertion
of his right to remain silent. But he did so when he clearly said, “I
don’t want to talk no more,” after Sergeant Atwater advised Sillah
not to worry about telling on others and that he should reveal
everything he knew. At this point, Sergeant Atwater expressed his
disappointment in Sillah and left the room, honoring Sillah’s right.
Although Sergeant Atwater returned to the room a few times
thereafter, he continued to honor Sillah’s right to remain silent,
declining to engage with Sillah’s grandmother in Sillah’s presence.
When Sergeant Atwater was in the room with Stewart and Morgan,
who were brought in at Sillah’s request, Sergeant Atwater told
Sillah to be quiet, and even yelled at him to do so, but he did not ask
Sillah any questions. Thereafter, Sillah clearly initiated contact
with the police by asking his grandmother to have Sergeant Atwater
return to the room so they could speak, at which time Sillah was
read Miranda warnings for a second time and signed the waiver
form. Sillah makes no claim that his waiver was not knowingly,
19
intelligently, or voluntarily made. Therefore, the trial court did not
err in admitting his custodial statements.
3. Sillah argues that the trial court erred in denying his motion
to sever his trial. We disagree.
When two or more defendants are jointly indicted for a capital
offense where the State does not seek the death penalty, “such
defendants may be tried jointly or separately in the discretion of the
trial court.” OCGA § 17-8-4 (a). A trial court has broad discretion to
grant or deny a motion to sever in such cases, and when ruling on
such a motion, a court should consider: “(1) the likelihood of
confusion of the evidence and law; (2) the possibility that evidence
against one defendant may be considered against the other
defendant; and (3) the presence or absence of antagonistic defenses.”
Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011).
When claiming on appeal that a trial court abused its
discretion in denying a severance motion, a defendant must do more
than show the “presence of antagonistic defenses or possibility that
a separate trial would give a defendant a better chance of acquittal.”
20
Smith v. State, 308 Ga. 81, 85 (2) (839 SE2d 630) (2020) (citation and
punctuation omitted). The defendant must make a clear showing
that the joint trial was “so prejudicial as to amount to a denial of his
right to due process.” Palmer v. State, 303 Ga. 810, 814-815 (III) (814
SE2d 718) (2018) (citation and punctuation omitted).
Here, Sillah was tried only with Murray and Saylor, they were
tried for almost the same offenses relating to the same incident, the
law and evidence were substantially the same for all of them, and
the State argued that they acted in concert in committing the
crimes. Despite these circumstances, Sillah attempts to show
prejudice by arguing that the evidence of Murray’s membership in a
Bloods gang would have been considered against him. But this
evidence would have been admissible even if his severance motion
had been granted, because the State’s theory underlying the
criminal street gang count was that Sillah and Murray acted in
concert with each other, as gang members, to commit the crimes. See
Nicholson v. State, 307 Ga. 466, 474 (4) (837 SE2d 362) (2019)
(defendant pointed to no evidence admitted at joint trial with the co-
21
defendant “that would not have been admitted had his severance
motion been granted, because the State’s evidence was that they
acted in concert with each other and other gang members to commit
the crimes”).
Sillah next argues that evidence that Murray and Saylor were
convicted felons prejudiced him, but Murray and Saylor stipulated
to their status as convicted felons. Records of their convictions were
admitted into evidence, but the documents did not go out with the
jury and no details about the underlying crimes were disclosed at
trial. Accordingly, Sillah was not prejudiced by being tried with
convicted felons. See Guffie v. State, 304 Ga. 352, 355 (3) (818 SE2d
608) (2018) (no abuse of discretion in denial of motion to sever where
co-defendant stipulated to his prior conviction and, therefore, jury
did not hear any details about that crime).
Sillah finally argues that the “inartful” cross-examination of a
particular witness by Murray, who initially proceeded pro se but
then agreed to allow a lawyer to represent him for the remainder of
the trial, was highly prejudicial. But Sillah points to no specific
22
testimony that was elicited or explains how such testimony was
damaging to his case. See Suggs v. State, 310 Ga. 762, 767 (5) (854
SE2d 674) (2021) (“It is well established that the burden is on the
party alleging error to show it by the record.” (citation and
punctuation omitted)). This speculative argument falls short of the
clear showing necessary to establish that the trial court erred in
denying his motion to sever. His claim therefore fails.
4. Sillah argues that the trial court did not adequately consider
his “youth and attendant circumstances” before sentencing him to
LWOP on the malice murder count. Sillah argues that because no
evidence about his history, prior behavior, or attendant
circumstances was presented at sentencing, the trial court could not
have taken such factors into account. But there is no affirmative
evidence that the trial court misapplied the law in imposing an
LWOP sentence on a juvenile offender, and his claim cannot prevail
in the absence of such evidence.
With Sillah’s consent, sentencing took place immediately after
the verdict was returned. Sampleton’s father observed that Sillah
23
lacked a father figure. Sillah’s mother said that Sillah was innocent.
Murray said that he wanted Sillah, his nephew, to go to college and
that he beat Sillah up when he found Sillah was smoking marijuana
and getting into trouble. Sillah’s counsel argued that “given
[Sillah’s] age and what was alleged to be his involvement,” he should
be sentenced to “something less than life without parole.” Sillah
maintained his innocence, saying he had plenty of shoes and did not
need to rob Sampleton for a pair. Sillah admitted to having “a little
crew” and had some handshakes that looked similar to gang signs.
He stated that he “wasn’t but 15,” although he also acknowledged
that he was a “different type of breed of 15-year-old” and may have
committed other crimes. But he maintained that he would not have
killed someone over a pair of shoes.
Sillah argues that, given this limited presentation to the court,
the trial court could not have adequately considered his “youth and
attendant circumstances” as required by United States Supreme
Court precedent. But there is no evidence the trial court ignored or
misapplied the law in imposing the LWOP sentence.
24
By the time of Sillah’s sentencing in 2014, the United States
Supreme Court had struck down mandatory LWOP sentences for
juvenile homicide offenders as unconstitutional under the Eighth
Amendment to the United States Constitution. See Miller v.
Alabama, 567 U.S. 460 (132 SCt 2455, 183 LE2d 407) (2012). That
Court reasoned that mandatory LWOP sentences made irrelevant
“youth (and all that accompanies it)” and “preclude[d] a sentencer
from taking account of an offender’s age and the wealth of
characteristics and circumstances attendant to it,” as well as the
“circumstances of the homicide offense, including the extent of his
participation in the conduct,” thereby “pos[ing] too great a risk of
disproportionate punishment.” Id. at 476-479. The Court made clear
that it was not ruling that the Eighth Amendment categorically
barred LWOP sentences for juvenile defendants, and that its
decision “mandate[d] only that a sentencer follow a certain process
— considering an offender’s youth and attendant circumstances —
before imposing a particular penalty.” Id. at 483; see also id. at 479.
After Sillah’s sentencing, the United States Supreme Court
25
held in Montgomery v. Louisiana, 577 U.S. 190 (136 SCt 718, 193
LE2d 599) (2016), that Miller was a substantive rule of
constitutional law that must be given retroactive effect in state
collateral review proceedings. See id. at 212. In concluding that
Miller must be applied retroactively, the Court reasoned that
although Miller had a procedural component (a hearing), it also had
a substantive one and noted that the hearing requirement “gives
effect to Miller’s substantive holding that [LWOP] is an excessive
sentence for children whose crimes reflect transient immaturity.” Id.
at 208-210.
Based on statements in Miller and Montgomery that LWOP
sentences are not permitted for the “vast majority of juvenile
offenders” and are allowed only for the “rarest of juvenile offenders
. . . whose crimes reflect permanent incorrigibility,” this Court
concluded that a sentencing court must do more than simply
consider generally a juvenile offender’s “youth and attendant
characteristics”; it also had to make a “distinct determination on the
record” that the juvenile offender is “irreparably corrupt or
26
permanently incorrigible[.]” Veal v. State, 298 Ga. 691, 702-703 (5)
(d) (784 SE2d 403) (2016).
But the United State Supreme Court’s subsequent decision in
Jones v. Mississippi, ___ U.S. ___ (141 SCt 1307, 209 LE2d 390)
(2021), clarified that such an explicit factual finding of permanent
incorrigibility is not required before imposing a discretionary LWOP
sentence and that a sentencing court also need not explain its
reasons for imposing an LWOP sentence. Jones concluded that both
Miller and Montgomery “squarely rejected” a formal fact finding
requirement, and explained that youth was akin to a mitigating
circumstance and that sentencing courts “have wide discretion in
determining the weight to” give relevant mitigating evidence
without having to make particular factual findings about those
mitigating circumstances. 141 SCt at 1314-1316 (citation and
punctuation omitted). The Court also explained that an on-the-
record explanation is not necessary to ensure that a sentencing court
considers a defendant’s youth, because if that court has discretion to
consider youth in imposing a sentence, it “necessarily will consider
27
the defendant’s youth, especially if defense counsel advances an
argument based on the defendant’s youth.” Id. at 1319 (emphasis in
original); see also Holmes v. State, 311 Ga. 698, 705 (3) (859 SE2d
475) (2021) (“Therefore, to the extent that that Veal suggested a
requirement that sentencers provide explicit, on-the-record
explanations regarding determinations of permanent incorrigibility
and the characteristics of children, Jones has explained that we were
mistaken.”).
In this framework, Sillah’s claim cannot succeed. Sillah argues
that because of the limited presentation of evidence at sentencing,
the trial court could not have adequately considered his youth and
attendant circumstances. There is no evidence that the trial court
was unaware it had the discretion not to impose an LWOP sentence.
And Sillah’s youth was made plain throughout the entirety of his
trial. His youth was also cited at sentencing — both by Sillah
directly and through counsel — as a reason for imposing something
less than an LWOP sentence. As Jones explains, these arguments
made it “all but impossible for a sentencer to avoid considering”
28
youth. 141 SCt at 1319.
Sillah argues that the trial court “received the bare minimum
of evidence” of his circumstances. It is true that there was limited
discussion at the sentencing hearing about Sillah’s background, but
his complaint that not enough mitigating evidence was submitted
about his background cannot be blamed on the trial court. There is
no indication that the trial court limited Sillah from presenting
mitigating evidence, and Sillah points to nothing in the record to
suggest the court did. By arguing that the court “should look at . . .
attendant characteristics,” Sillah suggests the trial court was
required to do more than it did, but he points to no precedent
imposing an affirmative duty on the trial court to, on its own, seek
out and review mitigating evidence before exercising its discretion.
Nor does he cite any authority requiring a court to receive a certain
quantum of evidence or spend a certain amount of time reflecting
upon that evidence before imposing a discretionary LWOP sentence.
Under Jones, “[u]nless the record affirmatively reflects otherwise,
the trial court will be deemed to have considered the relevant
29
criteria, such as mitigating circumstances, enumerated in the
sentencing rules.” 141 SCt at 1321 (citation and punctuation
omitted). There is no evidence that the trial court failed to
understand its discretion or failed to consider the evidence
presented to it. Therefore, Sillah’s claim fails.
5. Sillah next argues that his total sentence violates the Eighth
Amendment’s ban on cruel and unusual punishments. First, Sillah
argues that he is not within the category of offenders for whom an
LWOP sentence is appropriate, pointing to a psychiatric evaluation
that concluded that Sillah was not permanently incorrigible.
Second, Sillah argues that his total sentence is constitutionally
disproportionate based on his level of participation in the crimes. We
disagree.
(a) As to whether the LWOP sentence was appropriate in this
case, the psychiatric evaluation that Sillah points to was completed
after Sillah’s sentencing and was authorized by the motion-for-new
30
trial judge as part of his motion for new trial. 2 Although such an
evaluation may have proved helpful to a trial court in considering
the appropriate sentence, Sillah did not present such evidence at his
sentencing hearing. In any case, such a report would not have been
dispositive; it was the trial court’s responsibility, not a
psychiatrist’s, to determine the appropriate sentence, based not just
on Sillah’s background, but also on the seriousness of the offense.
See State v. Riggs, 301 Ga. 63, 68-69 (2) (a) (799 SE2d 770) (2017)
(explaining that it is for the trial courts exercise the discretion to
“fashion sentences that fit the crimes for which the defendant is
convicted, so long as the sentences fall within the statutory ranges”).
As discussed below, Sillah has failed to show that his sentence was
cruel and unusual.
(b) The Eighth Amendment of the United States Constitution
bans “cruel and unusual punishments,” including those that are
grossly disproportionate to the crime committed. See Bradshaw v.
2 The judge who considered the motion for new trial was not the same
judge who presided over the trial.
31
State, 284 Ga. 675, 676-677 (2) (671 SE2d 485) (2008); see also
Ewing v. California, 538 U.S. 11, 20 (123 SCt 1179, 155 LE2d 108)
(2003) (the Eighth Amendment “contains a narrow proportionality
principle that applies to noncapital sentences” (citation and
punctuation omitted)). To determine whether a sentence is grossly
disproportionate, a court first compares “the gravity of the offense
and the severity of the sentence.” Adams v. State, 288 Ga. 695, 701
(4) (707 SE2d 359) (2011) (citation and punctuation omitted). When
evaluating the “gravity of the offense” as part of the threshold
comparison, courts look not only at the statutory elements of the
offense, but also the particular circumstances of the crime
committed as shown by the record. See Conley v. Pate, 305 Ga. 333,
336 (3) (825 SE2d 135) (2019). Moreover, “courts must defer to the
legislature in determinations of sentencing parameters unless a
sentence is so overly severe or excessive in proportion to the offense
as to shock the conscience.” Winslow v. State, 315 Ga. 133, 143 (3)
(880 SE2d 530) (2022) (citation and punctuation omitted).
In the rare case that this threshold comparison “leads to an
32
inference of gross disproportionality,” a court next compares “the
defendant’s sentence with the sentences received by other offenders
in the same jurisdiction and with the sentences imposed for the
same crime in other jurisdictions.” Conley, 305 Ga. at 336 (3)
(citation and punctuation omitted). “[I]t is the rare case in which the
threshold inference of gross disproportionality will be met and a
rarer case still in which that threshold inference stands after further
scrutiny.” Adams, 288 Ga. at 701 (4) (cleaned up); see also United
States v. Smith, 967 F3d 1196, 1214 (11th Cir. 2020) (“Outside the
context of capital punishment, successful challenges to the
proportionality of sentences are rare.”).
Here, comparing the gravity of Sillah’s offenses with the
severity of his sentence does not even raise an inference of gross
disproportionality. There is no doubt that Sillah’s sentence is severe,
but his total sentence reflected the seriousness of his crimes. Sillah
was convicted of murder and other major felonies, including for
conduct that reflected his participation in ongoing criminal gang
activity. The bulk of Sillah’s total sentence came from his convictions
33
related to that killing, Sillah having received the LWOP sentence
for the malice murder of Sampleton and a consecutive life sentence
for the armed robbery of Sampleton.
Sillah argues that the sentences were grossly disproportionate
to the gravity of his offenses for a number of reasons, primarily that
he did not intend for Sampleton to be killed and that he was not a
direct participant in the crime. He argues that, although he
conspired to rob Sampleton, his plan was simply to push Sampleton
down and take what he had, and that it was Murray’s plan to
burglarize Sampleton’s home. In support of his argument, Sillah
relies on testimony by a fellow inmate of Saylor regarding
statements that Saylor allegedly made to the inmate about the
planning of the robbery of Sampleton. But in citing this testimony,
Sillah does not mention that Saylor also allegedly said that Sillah
offered Sampleton as a possible target when Murray said they
wanted to break into someone’s house in order to make money to
return to New York. Even if armed robbery was not Sillah’s original
plan, he helped Murray and Saylor target Sampleton and
34
participated in the more dangerous plan.
Sillah next argues that the sentence was grossly
disproportionate because the evidence shows that he merely acted
as a lookout during the robbery and there was “scant evidence” that
he was even in the house at the time of the murder. But even Sillah’s
own statements show that he was more than merely a lookout.
Timothy Johnson testified that Sillah confessed that he, Murray,
and Saylor entered Sampleton’s home and that the other co-
defendants tied up and shot Sampleton. Sillah also said that he went
“back and forth from searching the home to checking the front of the
home.” Although the evidence does not show that Sillah shot and
killed Sampleton, the record supports the conclusion that Sillah was
an active participant in planning the crime and covering it up.
Sillah next argues that he did not intend for Sampleton to be
killed, pointing to his statement to a fellow inmate that Murray did
not have to shoot Sampleton. Sillah argues in his brief that this
showed his remorse. Sillah did not make these arguments to the
trial court during sentencing, but even if he did, the trial court would
35
have been authorized to reject that statement as showing remorse
when Sillah insisted at sentencing that he was innocent and failed
to make any statement accepting responsibility for his actions. See
Height v. State, 278 Ga. 592, 595 (1) (604 SE2d 796) (2004) (in
considering mitigating evidence, trial court must exercise its
discretion to determine whether the evidence is sufficiently reliable
to be admitted).
Sampleton’s tragic death was not the only offense at issue.
After leaving Sampleton’s house, Sillah or one of his co-defendants
shot at another motorist. And Sillah committed at least one other
robbery, taking several firearms in the process and reselling some of
them. Therefore, despite Sillah’s young age, his sentences do not
meet the threshold inference of gross disproportionality given the
number and severity of the offenses at issue, in particular the
shooting of Sampleton. Therefore, Sillah’s claim fails.
6. Sillah next argues that the trial court erred in sentencing
him for conspiracy to commit armed robbery (Count 13) and
conspiracy to commit burglary (Count 14) when he was also
36
sentenced on the completed offenses (Counts 6 and 7, respectively).
He argues that the conspiracy counts were lesser-included offenses
because the offenses involved the same victim and same co-
conspirators. We agree.
Under Georgia law, “[a] person commits the offense of
conspiracy to commit a crime when he together with one or more
persons conspires to commit any crime and any one or more of such
persons does any overt act to effect the object of the conspiracy.”
OCGA § 16-4-8. A conspiracy count “is merged into the greater crime
where the evidence shows without dispute that the crime charged
was actually committed, or that all of the essential acts constituting
the crime were committed.” Crosby v. State, 232 Ga. 599, 602 (3) (207
SE2d 515) (1974).
Here, the conspiracy counts charged that, on or about
December 17, 2012, Sillah conspired with Murray and Saylor to rob
(Count 13) and burglarize (Count 14) Sampleton. There is no dispute
that the burglary or robbery was not carried out on December 17,
but those offenses were completed two days later, as reflected by his
37
convictions in Counts 6 and 7.
The State argues that because the December 17 agreement was
not carried out that day, the conspiracy counts were separate
offenses not subject to merger. In support, the State relies on Roberts
v. State, 242 Ga. 634 (250 SE2d 482) (1978), wherein this Court
stated that a conspiracy is “a separate crime only in cases where the
crime conspired to be committed had not in fact been committed,
that is, where the conspiracy had been, so to speak, ‘nipped in the
bud.’” Id. at 635 (2) (citation and punctuation omitted).
Contrary to the State’s argument, the conspiracy was not
“nipped in the bud.” A new conspiracy did not arise simply because
the object of the conspiracy — to rob and burglarize Sampleton —
was not carried out on December 17. See Waldrip v. State, 267 Ga.
739, 747 (10) (b) (482 SE2d 299) (1997) (“[T]he character and effect
of a conspiracy are not to be judged by dismembering it and viewing
separate parts but by looking at it as a whole. Thus, even if one
conspirator acts separately from the others to achieve a common
goal, his acts will be imputed to the others, without a new agreement
38
directed to that particular act.”), abrogated in part on other grounds
as recognized in Booth v. State, 301 Ga. 678, 681 (2) (804 SE2d 104)
(2001). Because the December 17 conspiracy continued through the
completion of the substantive offenses,3 the conspiracy counts —
Counts 13 and 14 — should have merged with the completed
offenses — Counts 6 and 7, respectively. We therefore vacate the
sentences on Counts 13 and 14.4
7. Sillah also argues that, under OCGA § 16-1-7 (a), the trial
court erred in entering a sentence on Count 17, which charged a
violation of the RICO Act, based on several predicate acts for which
he was separately convicted in this case. Sillah’s claim fails.
OCGA § 16-1-7 (a) provides:
When the same conduct of an accused may establish the
commission of more than one crime, the accused may be
3 The exact date Sillah, Murray, and Saylor formed the conspiracy is not
clear from the record, but the record shows Murray and Sillah exchanging texts
a few days before December 17 that would support a conclusion that there was
an agreement between these individuals to rob Sampleton at least by
December 17. In any case, there is no evidence that there were two separate
conspiracies between Sillah, Murray, and Saylor; instead, the evidence
supports the conclusion that there was one continuing agreement that
culminated in Sampleton’s death.
4 Because the trial court’s sentence was proper in all other respects, we
need not remand for resentencing. See Booth, 301 Ga. at 688 (5).
39
prosecuted for each crime. He may not, however, be
convicted of more than one crime if: (1) One crime is
included in the other; or (2) The crimes differ only in that
one is defined to prohibit a designated kind of conduct
generally and the other to prohibit a specific instance of
such conduct.
Sillah argues that the RICO conviction was barred because it
was included in another crime, but he relies on cases applying the
“actual evidence” test that we have overruled. See Johnson v. State,
313 Ga. 155, 158 (3) (868 SE2d 226) (2022) (noting that actual-
evidence test has been long-overruled). He makes no argument that
applying the correct test — the “required evidence” test — compels
merger. Even so, Sillah has not shown that the RICO count was
included in any of the other charged offenses.
By its terms, OCGA § 16-1-7 (a) (1) applies only when the “same
conduct” is at issue. See Johnson v. State, 313 Ga. 155, 157 (3) (868
SE2d 226) (2022) (“Substantive double jeopardy law protects a
defendant from multiple punishments when his crimes arise from
the same conduct.” (citing OCGA § 16-1-7 (a) (1); emphasis added)).
Typically, the “same conduct” refers to acts committed against the
40
same victim at the same time. If crimes are committed against
different victims or are separated by some time interval, they do not
merge. See, e.g., Jones v. State, 290 Ga. 670, 672 (2) (725 SE2d 236)
(2012) (providing that the merger doctrine under OCGA § 16-1-7 (a)
“does not apply if each of the charged crimes was committed against
a different victim” (citation and punctuation omitted)); Culpepper v.
State, 289 Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011) (concluding
that aggravated assault based on multiple stab wounds merged with
malice murder under OCGA § 16-1-7 (a) because there was no
evidence that non-fatal stab wounds were separated by a deliberate
interval from fatal stab wounds).
Here, the RICO predicate acts for which Sillah was convicted
did not solely involve the same conduct or the same victim. Sillah’s
convictions that also served as RICO predicate acts were based on
conduct related to Sampleton’s death, offenses against Hrnjack, and
the burglary of the Dugas residence. The jury also found that Sillah
committed another predicate offense (robbery) that was not
separately charged, that involved a different victim, and that was
41
committed more than three months before Sampleton’s murder.5
Although the RICO conviction was based in part on conduct that
supported other convictions, the predicate acts involved different
conduct and different victims, so it was not all the “same conduct.”
Thus, the RICO conviction did not merge under OCGA § 16-1-7 (a).
Case No. S22A1175
8. In his six-page brief, Murray, proceeding pro se on appeal,
raises two enumerations of error. In one of his enumerations of
error, Murray appears to argue that the trial court failed to consider
the merits of his amended motion for new trial after we remanded
the case following Murray’s first appeal. But the trial court’s order
stated that it considered “the specific errors alleged” by Murray, and
at the hearing following remand, the court indicated that it had
received all of Murray’s post-conviction filings and considered all of
his claims raised in those pleadings, noting that many of them were
duplicative. Although the trial court’s order did not address each
5 Kerwin Kirkland testified that, in June 2012, Sillah and others
attacked and “stomp[ed]” him, trying to steal his hat, which they ultimately
did.
42
claim in detail, it was not required to. See Lynn v. State, 310 Ga.
608, 611 (2), (852 SE2d 843) (2020) (“It is well settled that a trial
court is not required to issue written findings of fact and conclusions
of law when deciding a motion for new trial.”).
In his second enumeration of error, Murray argues that the
State failed to present any evidence to support his conviction at the
motion for new trial hearing. But the State was not required to
present any evidence of guilt at the motion for new trial hearing.
When a defendant files a motion for new trial to challenge the
sufficiency of the evidence, a defendant typically asserts the general
grounds under OCGA § 5-5-20 (that the verdict is contrary to the
evidence) or OCGA § 5-5-21 (that the verdict is strongly against the
weight of the evidence), and these grounds do not require new
evidence beyond the trial record. See State v. Cash, 298 Ga. 90, 94
(779 SE2d 603) (2015). Murray makes no argument that the trial
evidence considered by the jury was insufficient to support his
convictions.
Judgment affirmed in part and vacated in part in Case No.
43
S22A0939. Judgment affirmed in Case No. S22A1175. All the
Justices concur.
44