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Final Copy 289 Ga. 854

S11A0752, S11A0914. MILLER v. THE STATE (two cases). THOMPSON, Justice. Appellants Tonya and Jabaris Miller (mother and son) were convicted of malice murder, arson, and other related offenses in connection with the death of Cheryl Miranda.1 Tonya appeals in Case No. S11A0752; Jabaris appeals in Case No. S11A0914. Case Nos. S11A0752 and S11A0914 Viewed in a light most favorable to the verdict, the evidence shows that
On June 17, 2005, a Fulton County grand jury returned a multi-count indictment jointly charging Tonya and Jabaris Miller with malice murder, felony murder while in the commission of an aggravated assault, aggravated assault, arson in the first degree, arson in the second degree, and concealing the death of another. The first three crimes were alleged to have occurred between February 27, 2005 and March 4, 2005. The remaining crimes occurred on March 4, 2005. A joint trial commenced on February 6, 2008. On February 22, 2008, the jury returned a verdict acquitting Tonya of both arson charges and finding her guilty of all remaining counts and acquitting Jabaris of arson in the second degree and finding him guilty of all remaining counts. Both appellants were sentenced on February 25, 2008. Jabaris received a life sentence for malice murder, plus a consecutive 20-year sentence for arson and a concurrent 10-year sentence for concealing the death of another. Tonya was sentenced to life imprisonment for malice murder, plus a consecutive 10-year sentence for concealing the death of another. The remaining counts were either merged or vacated by operation of law under Malcolm v. State, 263 Ga. 369 (434 SE2d 479) (1993). Jabaris filed a motion for new trial on February 25, 2008, which was amended on November 19, 2009. Tonya filed a motion for new trial on March 8, 2008, which was amended on November 5, 2009. The motions were denied in a joint order of the trial court on November 19, 2010. Notices of appeal were filed for both appellants on December 3, 2010. The appeals were docketed to the April 2011 term of this Court and were submitted for a decision on briefs on March 28, 2011 (as to Tonya), and April 25, 2011 (as to Jabaris).
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Miranda and Tonya had been roommates in Tampa, Florida and were involved in a turbulent relationship for some time prior to Miranda's death. In May 2004, Miranda obtained two temporary protective injunctions against Tonya in Florida and Tonya was arrested for violating one of them. In January 2005, Miranda contacted a close family friend and asked the friend to meet her at a local nightclub. When the friend arrived she observed that Miranda's face was bruised and bloody, her eyeglasses were broken, and a front tooth had been knocked out; Miranda informed her friend that she had gotten into a fight with "Tonya." Miranda was last seen alive on February 27, 2005. On February 28, 2005, cell phone towers tracked Miranda's cell phone as it traveled from Tampa to Atlanta. During that time, Jabaris placed dozens of calls from Miranda's cell phone to his friends and relatives in Georgia. One such call was made to a cousin explaining that he had run out of gas in Fort Valley and asking her to bring money to him. During this conversation, the cousin heard Tonya's voice in the background reiterating the request for gas money. On March 1, 2005, appellants unexpectedly appeared at an apartment on Welcome All Road in Atlanta, rented by some of their relatives. Jabaris
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drove there in Miranda's white Nissan pickup truck which remained in the apartment parking lot for the next four days with the bed of the truck covered.2 He told a cousin that he had gotten into an argument with a woman in Florida but did not want to elaborate. On the morning of March 4, 2005, the Nissan truck was found engulfed in flames off the side of a road a few hundred yards from the same apartment complex. An accelerant had been used to start the fire. Responders found Miranda's body in the bed of the burning truck. She had been bound at the wrists, choked, stabbed, and beaten to death, then doused with charcoal lighter fluid and set on fire. Forensic evidence established that death had occurred two to four days earlier. Jabaris was arrested shortly thereafter at the home of another relative, Tamela Givan. Givan identified certain luggage that belonged to appellants. Those bags were searched pursuant to a warrant; they contained Miranda's cell phone and credit cards, several pawn tickets issued to Miranda, and "hundreds" of documents in Miranda's name.

It was not established whether Tonya and Jabaris arrived at the apartment at the same time or in the same vehicle. There is, however, evidence that they both arrived on the same day. 3

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Jabaris was taken to the police department where Miranda warnings were administered and a waiver was executed. He gave a lengthy custodial statement in which he admitted taking possession of Miranda's truck in Tampa and, accompanied by Tonya, driving the truck to his aunt's apartment on Welcome All Road in Atlanta. He also claimed that after a couple of days he discovered Miranda's body in the bed of the truck in the apartment parking lot, and that he got "rid of it" by dousing the truck with lighter fluid and setting it on fire. Tonya was arrested several days later at Givan's home. She too received Miranda warnings and executed a waiver. In a custodial statement, she told the officers that she and Miranda had been roommates and that Miranda had locked her out of the apartment and had pawned her furniture and other personal belongings. An ornamental knife and nunchucks, which Miranda had displayed on her mantle in Tampa, were seized from appellants' bag. Forensic evidence established that these could have been used to inflict the fatal injuries. 1. When construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find both
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appellants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Both appellants assert that their Sixth Amendment rights to confront the witnesses against them were violated when the trial court allowed Raul Palomino, a Florida Circuit Court judge, to testify to the contents of three petitions for temporary protective injunctions that were filed in the Florida court in which he presided. The first two petitions were filed by Miranda in May 2004 and sought protective injunctions against Tonya. The third petition was filed by Tonya in June 2004 and sought an injunction against Miranda.3 At trial, the State provided Judge Palomino with copies of Miranda's two petitions, and he was asked to read the allegations into evidence. Trial counsel for both appellants raised continuing objections to the contents of the petitions on grounds that the testimony violated their rights to confrontation, and the statements constituted inadmissible hearsay. The objections were

All three petitions were subsequently dismissed when the petitioner in each case failed to appear at the scheduled hearings. 5

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overruled, and Miranda's sworn allegations were read into evidence. These included Miranda's claims that Tonya "threatens to kill me, threatens to stab me, beat me, [and] I'm in fear, great fear of my life." Miranda also alleged that Tonya had "broken into [Miranda's apartment] through back sliding glass doors," that she "came at [her] striking [her] in the back," and that Tonya is known to possess "knives, swords, guns, five stars." The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U. S. Const., Amend. VI. This right is binding against the states under the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400 (85 SC 1065, 13 LE2d 923) (1965). The United States Supreme Court reexamined the Confrontation Clause in Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004), and declared that statements which are testimonial in nature and made by an unavailable declarant are inadmissible in criminal proceedings against a defendant who has had no prior opportunity to cross-examine that declarant. Id., 541 U. S. at 68. Crawford defined "[t]estimony . . . [as] typically a solemn declaration or affirmation made for the purpose of establishing or
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proving some fact." (Citations and punctuation omitted.) Id., 541 U. S. at 51. The Court identified a "core class of `testimonial' statements, . . . [to include] ex parte in-court testimony or its functional equivalent

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