Miller v. State

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
No. S26A0530
Jerrome Tyvone Miller
v.
The State

On Appeal from the Superior Court of Richmond County
No. 2022RCCR00182

Decided: May 19, 2026

LAND, Justice.
Jerrome Tyvone Miller was charged with malice murder
and other crimes in connection with the shooting death of Felycya
Harris after law enforcement identified him – through conversa-
tions with Kianna Cunningham – as the user of a phone number
that had been in contact with Harris the night of her death. In
addition to connecting Miller to the phone number, Cunningham
identified Miller as the man who shot her a year after the Harris
shooting. Miller filed a pre-trial motion to exclude Cunningham’s
testimony, specifically as it related to the alleged shooting against
her. The trial court denied the motion, finding that the evidence
of the Cunningham shooting was admissible for the purpose of
establishing Miller’s identity pursuant to OCGA § 24-4-404(b)
(“Rule 404(b)”). We granted Miller’s application for interlocutory
appeal. On appeal, the parties agree that the trial court’s stated
reason for its pre-trial ruling is an abuse of discretion, and we now
vacate that ruling and remand the case to the trial court for fur-
ther proceedings consistent with this opinion.
1. Background
(a) The facts as alleged by the parties during the pre-trial
motion hearing show as follows. In the early morning hours of
October 3, 2020, Harris was shot and killed in a park in Richmond
County. Investigators attempted to gain access to Harris’s cell
phone but were unable to do so at the time.1
A year after Harris’s murder, investigators gained access
to her phone and identified the last phone number, ending
in -5309, that her phone was in communication with prior to her
death. Harris’s phone had been in contact with that number, via
both text and phone conversations, until the time that investiga-
tors believed she was killed. In those text messages, the parties
discussed “meeting up for sex” in exchange for money, 2 and
the -5309 number suggested the park as a meeting location. Har-
ris’s phone then received a text message from the -5309 number
saying, “[H]ey, I’m here. Where are you?” The State contends that
cell site location data indicates that the person using the -5309
number was “either [at the park] or was on his way there.” How-
ever, investigators could not locate any subscriber information as-
sociated with the -5309 number.
Investigators later obtained cell phone records for
the -5309 number and noticed that the first number the phone
called after being activated was a number ending in -8300.3 They

1 Investigators found a 9mm shell casing at the scene, but no other
forensic evidence was recovered in relation to the murder.
2 According to the State, Harris was “very notorious for extorting men”
and would “sell her body for sex.”
3 Investigators were interested in this number because it is common
for people who use burner phones to “call a phone number that they do possess”
to “activate [the burner phone] or to make sure it’s working and is properly in
service.” If true here, that would suggest that the owner and/or possessor of
the -5309 number and the -8300 number were the same person.

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discovered that the -8300 number was associated with Miller. In-
vestigators then obtained cell phone records for the -8300 number
and found that one of the phone’s most frequent contacts was a
number ending in -2098. Investigators searched for the -2098
number online and identified Kianna Cunningham as connected
to that number. When investigators attempted to get into contact
with Cunningham, they learned that she had recently been shot
and was currently in the hospital.
On October 8, 2021, an investigator went to the hospital to
see if Cunningham could confirm Miller’s identity, since her
phone number had been in frequent contact with his. Cunning-
ham was shown a photographic lineup, which included Miller, “for
the sole purpose of identifying [Miller] with that [-8300] phone
number.” Cunningham provided that identification but also iden-
tified Miller – known to her only as “Jay” – with “one hundred
percent” certainty as the man who shot her because she recog-
nized “the way he was talking, the way he walked, his height, and
his body weight.” Cunningham said that she had known Miller
for about four years, 4 and that he would call and send text mes-
sages from various phone numbers – two of which ended in -5309
and -8300. 5
The investigator conducted a second interview with Cun-
ningham at her home on October 15, 2021, during which she con-
tinued to provide statements about how she knew Miller. She also
showed investigators text messages on her phone from the -8300

4 To establish her familiarity with Miller, Cunningham explained that
he was about 5’11” tall, listed some of the vehicles that he typically drove, men-
tioned that he sold her methamphetamines, and recalled that he had stolen a
gun from her in September 2020. (The State does not allege that this gun was
the weapon used to kill Harris.)
5 Some of these messages discussed “meeting up for sex.”

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number, including one from sometime after Harris’s murder stat-
ing “lose [my] burner number. It’s been tapped by the police.”
Despite the information provided by Cunningham, law en-
forcement ultimately “closed out the case without any indictment
or arrest of [Miller]” in relation to the Cunningham shooting be-
cause they determined that Cunningham’s statements were not
credible. Cunningham’s statements were inconsistent, 6 and her
boyfriend gave a physical description of the shooter that conflicted
with Miller’s appearance. 7 In addition, Cunningham was “heavily
medicated at the time that she identified [Miller],” and she later
“refused to submit to a polygraph test to verify whether or not her
statement was accurate.” 8 There was also evidence that, soon af-
ter Cunningham came out of surgery following the shooting and
the medicine was out of her system, she sent a text message to a
friend saying, “I think I might have just effed [sic] up.” Miller was,
however, identified as the suspect in the Harris shooting; he was
arrested on November 20, 2021, and charged with Harris’s mur-
der. 9
(b) On August 19, 2025, Miller filed a pre-trial motion to

6 Cunningham initially told law enforcement that she “was not familiar
with her shooter and had never met him prior to the day of her shooting.” But
she later explained how she recognized Miller and said that she had known
him for about four years and had “spent time” with him prior to her shooting.
7 Cunningham’s boyfriend told law enforcement that he “observed the
potential shooter as a 5’8” individual with dreadlocks driving [a] black Impala,”
but Miller was “clean shaven … at the time of the shooting” and between 5’10”
and 5’11” tall.
8 According to Miller’s trial counsel, Cunningham told investigators
that “if she had to submit to a polygraph she would rather not prosecute at all.”
9 On February 8, 2022, a Richmond County grand jury indicted Miller,
charging him with malice murder (Count 1), felony murder (Count 2), and pos-
session of a firearm during the commission of a felony (Count 3) in relation to
the shooting death of Harris.

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exclude the anticipated Cunningham shooting evidence, arguing
that it would constitute prejudicial character evidence and would,
thus, be inadmissible under Rule 404(b). 10 The trial court held a
hearing on the motion, and the State argued that the evidence
was admissible for purposes of identity and motive or, alterna-
tively, as intrinsic evidence. In its August 25, 2025 order, the
court denied Miller’s motion to exclude based on its express find-
ing that Cunningham’s testimony about her shooting was admis-
sible for the purpose of proving Miller’s identity.
In its consideration of the admissibility of the Cunningham
shooting evidence, the trial court first noted that,
for 404(b) evidence to be admissible, a three prong
test must be met, which requires the State to show
(1) the evidence is relevant to an issue other than
bad character; (2) the probative value of the other
acts evidence is not outweighed substantially by its
unfair prejudice; and (3) there is sufficient proof to
enable the jury to find that the accused committed
the other acts. Brooks v. State, 298 Ga. 722, 724
(2016).

The court first found that the evidence was “relevant to show
identity because of the unique similarities present” between the
two shootings. The court then found, in reference to the second

10 Rule 404(b) provides, in relevant part:
Evidence of other crimes, wrongs, or acts shall not be admissi-
ble 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, oppor-
tunity, intent, preparation, plan, knowledge, identity, or ab-
sence of mistake or accident.

5
prong, that “[t]he probative value of this evidence is not substan-
tially outweighed by the danger of unfair prejudice” because the
“similarities increase the probative value” and the “danger of un-
fair prejudice is lessened by the fact that the testimony will be
focused on identifying [Miller] as the user of the phone number
used to contact [Harris] on the night of the charged murder and
how … Cunningham is able to make that identification.”
The court explained that this identification evidence will
“include but is not limited to [Cunningham’s] familiarity with
[Miller] and the shooting incident alleged.” The court also noted
that it would provide a limiting jury instruction to further curtail
any danger of unfair prejudice. Additionally, the court deter-
mined that “[t]here is a high prosecutorial need for the proffered
evidence in this case because the only available evidence to estab-
lish identity of [Miller] is the testimony of … Cunningham.” As
for the third prong, the court found that “[t]here is sufficient proof
for a jury to find by a preponderance of the evidence that [Miller]
committed the prior shooting of … Cunningham” because “Cun-
ningham had [Miller]’s phone number and had known him for
roughly three to four years. They had been in contact with one
another on more than one occasion.”
Finally, the trial court recounted the evidence offered by
the State regarding Cunningham’s familiarity with Miller – in-
cluding that she had his -8300 number saved in her phone; that
she knew the vehicles he drove, recognized his build, and knew
that his name started with a “J”; and that she confidently identi-
fied him in a photographic lineup as the man who shot her.
The trial court determined that “[t]he evidence … offered
for admission by the State demonstrates a modus operandi of
[Miller]” and that “the evidence offered in the uncharged act is
necessary to complete the story and is inextricably intertwined

6
with the evidence regarding the charged offense.” In conclusion,
the court found that Cunningham’s testimony “shall be admissi-
ble to prove the identity of [Miller]” under Rule 404(b).
The trial court granted a certificate of immediate review,
and we granted Miller’s interlocutory application.

2. Analysis
Miller argues, and the State concedes, that the trial court
abused its discretion in admitting the Cunningham shooting evi-
dence (i) for the purposes of proving Miller’s identity as Harris’s
shooter, and (ii) as intrinsic evidence. 11 We agree.
When other acts evidence is offered pursuant to Rule
404(b) to prove identity, it must
satisfy a particularly stringent analysis. When ex-
trinsic offense evidence is introduced to prove iden-
tity, the likeness of the offenses is the crucial consid-
eration. The physical similarity must be such that it
marks the offenses as the handiwork of the accused.
In other words, the evidence must demonstrate a
modus operandi. The extrinsic act must be a “signa-
ture” crime, and the defendant must have used a mo-
dus operandi that is uniquely his. The signature
trait requirement is imposed to ensure that the gov-
ernment is not relying on an inference based on mere
character – that a defendant has a propensity for
criminal behavior. Evidence cannot be used to prove

11 Specifically, the District Attorney “agrees that the trial court’s order
reflects an abuse of discretion,” that “the trial court erred in admitting the
Cunningham shooting for the purpose of proving identity in the Harris mur-
der,” and that “the trial court erred in the admission of the Cunningham shoot-
ing evidence as intrinsic evidence.”

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identity simply because the defendant has at other
times committed the same commonplace variety of
criminal act.

Moon v. State, 312 Ga. 31, 53–54 (2021) (cleaned up).
Both parties acknowledge that the trial court’s pre-trial or-
der admitting the evidence of the Cunningham shooting for pur-
poses of identity constituted an abuse of discretion because the
evidence does not show a “signature crime” or “modus operandi”
for the purpose of proving Miller’s identity. “Given that this type
of crime was not unique to [the defendant] and because the two
crimes, though similar, were not sufficiently uncommon so as to
constitute a signature crime, the prior crimes were not admissible
under Rule 404 (b) to prove identity.” Moon, 312 Ga. at 54.
Moreover, to the extent that the trial court ruled that the
Cunningham shooting evidence was admissible as intrinsic evi-
dence because it was “necessary to complete the story” of the Har-
ris shooting committed a year earlier and was “inextricably inter-
twined with the evidence regarding the charged offense,” that rul-
ing was also an abuse of discretion. “Intrinsic evidence is evidence
that ‘arises from the same transaction or series of transactions as
the charged offense,’ is ‘necessary to complete the story of the
crime,’ or is ‘inextricably intertwined with the evidence regarding
the charged offense.” Harris v. State, 314 Ga. 238, 264 (2022)
(cleaned up). 12 The parties agree that the evidence that Cunning-
ham was shot by Miller is not intrinsic to the charged crime. We
agree and emphasize that there is a distinction, apparently over-
looked by the trial court, between Cunningham’s testimony as to

12 We note that evidence cannot be both intrinsic and admissible under
Rule 404(b). See Harris, 314 Ga. at 265–66.

8
the phone number(s) used by Miller to contact her and her testi-
mony that Miller shot her.
Notably, Miller “cannot, and does not, dispute that the
State is entitled to present evidence pertaining to the [-5309] cell
phone number that contacted … Harris the night of her death.”
But, as Miller argues, “the State can attempt to establish some
connection between [Miller] and the cell phone number without
delving into the … Cunningham shooting” (emphasis in original).
In other words, Cunningham may be allowed to testify concerning
her knowledge of Miller’s phone number without going further
and telling the jury that Miller shot her, as evidence of her shoot-
ing is neither necessary to establish her knowledge of Miller’s
phone number nor admissible as identity evidence or intrinsic ev-
idence. See Harris, 314 Ga. at 267–70.
Because we agree with the parties that the evidence of the
Cunningham shooting is neither admissible for the purpose of
proving Miller’s identity nor admissible as intrinsic evidence, we
vacate the trial court’s order and remand the case to the trial
court for further proceedings consistent with this opinion. Be-
cause the trial court’s order is limited to the issues of identity and
intrinsic evidence, we express no opinion as to whether the evi-
dence may be admissible for other reasons. The parties are not
precluded from seeking the admission of this evidence for any
other purposes that may be supported by the evidence and the
positions taken by the parties at trial. 13

13 Moreover, while the evidence of the Cunningham shooting is not ad-
missible for the purpose of proving Miller’s identity or as intrinsic evidence,
our holding is limited to the facts of the shooting as alleged in the filings before
this Court. It should not be construed as a holding that Cunningham is prohib-
ited from providing testimony that connects Miller to either or both of the two

9
Judgment vacated and case remanded. All the Justices con-
cur, except Warren, P.J., not participating.

phone numbers at issue (-5309 and -8300). Accordingly, to the extent the State
wishes to introduce testimony from Cunningham that these numbers were
used by Miller and that she has knowledge of that fact, our ruling here would
not prohibit that.

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