Merritt v. State

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                                                  In the
                            Supreme Court of Georgia
                                             No. S26A0404
                                             Tyler Merritt
                                                   v.
                                              The State

                         On Appeal from the Superior Court of DeKalb County
                                          No. 20CR26859

                                           Decided: May 5, 2026


                    LAGRUA, Justice.
                 Tyler Merritt challenges his convictions for malice murder
           and other crimes in connection with the shooting death of Wayne
           Cunningham. 1 Merritt contends that the trial court erred in

                    1 The crimes occurred on January 26, 2020. On December 1, 2020, a
           DeKalb County grand jury indicted Merritt for malice murder (Count 1), two
           counts of felony murder (Counts 2 and 3), armed robbery (Count 4), aggravated
           assault (Count 5), possession of a firearm during the commission of a felony
           (Count 6), theft by receiving stolen property (Count 7), possession of cocaine
           with intent to distribute (Count 8), and possession of marijuana with intent to
           distribute (Count 9). The theft and drug counts (Counts 7–9) were severed for
           trial and ultimately nolle prossed. At a trial from December 16 to 19, 2024, the
           jury found Merritt guilty of malice murder (Count 1), felony murder predicated
           on aggravated assault (Count 3), aggravated assault (Count 5), and possession
           of a firearm (Count 6). The jury found Merritt not guilty on the remaining
           counts. The trial court sentenced Merritt to serve life in prison with the
           possibility of parole on Count 1 and a consecutive term of five years in prison
           on Count 6. Count 3 was vacated by operation of law, and Count 5 merged into
           Count 1. Merritt’s trial counsel filed a timely motion for new trial, and new
           appellate counsel filed a motion asking that the trial court rule upon the
charging the jury on conspiracy. Because there was sufficient
evidence to authorize the giving of a jury instruction on
conspiracy, there was no error, and we affirm.
        The evidence at trial, viewed in the light most favorable to
the verdict, showed that Cunningham lived in Stone Mountain,
worked in “construction,” and had “issues with substance abuse.”
He was fatally shot at the Scottish Inn on Wesley Chapel Road in
DeKalb County at approximately 4:20 p.m. on January 26, 2020.
Surveillance video footage from the Scottish Inn was played at
trial, and still photos from the video were also introduced into
evidence. The surveillance footage showed that at 3:45 p.m. on
January 26, Merritt, Quindarious Gray, 2 and two other men, who
were never identified, arrived at the Scottish Inn in a stolen Kia
Sorento. 3 A few minutes later, Merritt, Gray, Cunningham, and
one of the two unidentified men walked to Room 307, with Merritt
unlocking the door; the other unidentified man entered the room
less than a minute later. Approximately 30 minutes later,
Cunningham ran out of the room and then collapsed in the
parking lot; he died as a result of two gunshot wounds to the torso.
Approximately two minutes after Cunningham ran out of the
room, Merritt, Gray, and the two unidentified men exited the
room, covering their faces, and one of the men tried to cover the
surveillance camera as he walked by it. Merritt and the other
three men left together in the same car in which they had arrived.


motion on the existing record. On August 29, 2025, the trial court entered an
order denying the motion for new trial. Merritt filed a timely notice of appeal,
and the case was docketed in this Court to the term beginning December 2025
and submitted for a decision on the briefs.
        2 An investigating officer testified that Gray was not charged with any
crimes related to “this case.”
        3 Officers ran the license plate number of the Kia through the motor
vehicle registration system, and the vehicle “came back as stolen.”




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Officers recovered several items from the room, including a
cigarette butt, which was later determined to contain traces of
Merritt’s DNA, and a spent 9mm cartridge case, which was later
determined to have been fired from a 9mm Glock found when
Merritt was arrested.
       Police utilized a license plate reader system to look for the
stolen Kia. Officers received a “hit” on the Kia the day after the
murder, showing that the Kia entered the A2B motel parking lot
on Ember Drive, but the officers did not locate the Kia when they
went to that location. The following day, two days after the
murder, officers received another “hit” on the Kia at the Economy
Inn on Glenfair Road, and police arrested Merritt near the car.
The distinctive shoes Merritt was wearing at the time of his arrest
were similar to the shoes Merritt was seen wearing on the
Scottish Inn surveillance footage. Officers ultimately determined
that Merritt had rented Room 140 at the Economy Inn using an
assumed name; a driver’s license with that assumed name was
found on Merritt at the time of his arrest. In Room 140, officers
discovered the Glock 9mm gun that fired the cartridges found in
Room 307 of the Scottish Inn. Officers also recovered from Room
140 a debit card in Cunningham’s name, the keys to the Kia,
clothing that matched the clothes worn by Merritt in the
surveillance footage from the Scottish Inn, and a “baby bottle”
that appeared to be the same one carried by one of the
unidentified men at the Scottish Inn.
      The State also presented testimony about the phone
records for the cell phone seized from Merritt upon his arrest and
a cell phone number associated with Gray. Merritt’s phone
number “made back and forth contact with [Gray’s] number about
20 times” on the day of the murder, including two phone calls
between 3:03 p.m. and 3:11 p.m. There was also testimony that




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both phones were utilizing the same tower and same sector near
the Scottish Inn around the time of the murder and that there
were no calls between those phones between approximately 3:30
p.m. and 5:00 p.m. that afternoon, which could indicate that the
owners of the phones were together. Additionally, there was
evidence that, shortly after the murder, Merritt’s phone
connected with Gray’s phone, while both phones were using a
tower that was a short distance away from the Scottish Inn.
Merritt’s phone also connected with Gray’s phone at 12:46 a.m.
the following morning. When the 12:46 a.m. call occurred, both
phones were in the same area where a license plate reader
captured a “hit” on the stolen Kia on the day after the murder.
       In his sole enumeration of error, Merritt contends that the
trial court erred by charging the jury on conspiracy because “the
evidence did not establish any conspiracy to commit any of the
charged crimes.” 4 Merritt objected to the conspiracy instructions

      4 The trial court gave the jury the following charges on conspiracy:


      A person commits conspiracy to commit a crime when that
      person, together with one or more persons, conspires to commit
      any crime and … any one or more of such persons does any
      overt act to bring about the object of the conspiracy. The crime
      subject of alleged conspiracy—malice murder; felony murder,
      two counts; armed robbery; aggravated assault; and possession
      of a firearm during commission of a felony—will be defined for
      you shortly. A conspiracy is an agreement between two or more
      persons to do an unlawful act, and the existence of a conspiracy
      may be established by proof of acts and conduct as well as by
      proof of an express agreement. When persons associate
      themselves in an unlawful enterprise, any act done by any
      party to the conspiracy to further the unlawful enterprise is
      considered to be the act of all the conspirators. However, each
      person is responsible for the acts of the others only insofar as




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at the conclusion of the trial court’s charge. We review de novo a
properly preserved claim that the trial court gave an incorrect
jury instruction. See OCGA § 17-8-58(a); Bates v. State, 317 Ga.
809, 819 (2023).
       Even though the State did not charge Merritt with
conspiracy, “[i]t is not error … for a trial court to instruct the jury
on the subject of conspiracy when the evidence tends to show a
conspiracy.” O’Neal v. State, 316 Ga. 264, 269 (2023). And “slight,
circumstantial evidence can form a proper evidentiary foundation
for [a conspiracy] charge.” Shepard v. State, 300 Ga. 167, 171
(2016) (quotation marks omitted). See also Taylor v. State, 312
Ga. 1, 15 (2021) (holding that “only slight evidence is necessary to
warrant a charge on the subject of conspiracy” (quotation marks
omitted)). The State may prove a conspiracy “by showing that two
or more persons tacitly came to a mutual understanding to …
pursue a criminal objective.” O’Neal, 316 Ga. at 269 (quotation
marks omitted). And “an inference that two or more people tacitly
came to a mutual understanding to commit a crime can be drawn
from the nature of the acts done, the relation of the parties, the
interest of the alleged conspirators, and other circumstances.” Id.
      Here, there was more than slight evidence to support the
inference that Merritt and at least one of the other men with him
were involved in a conspiracy to commit a criminal act against
Cunningham. The day of the murder, Merritt’s and Gray’s phones
connected many times before arriving at the Scottish Inn. Merritt,

       such acts are naturally or necessarily done to further the
       conspiracy. Whether or not a conspiracy existed in this case is
       a matter for you to determine. Presence, companionship, and
       conduct before and after the commission of the alleged offense
       may be considered by you in determining whether or not such
       circumstances, if any, give rise to an inference of the existence
       of a conspiracy.




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Gray, and the other two men arrived at the Scottish Inn together
in a stolen car and, shortly after arriving, walked with
Cunningham to Room 307. Cunningham was shot while he was
in the room with Merritt and the other men. After Cunningham
ran out of the room, Merritt, Gray, and the other two men exited
the room, trying to hide their faces, and all left together in the
same stolen car. Merritt’s and Gray’s phones connected a short
time after the murder and again several hours later. The cell
phone location evidence also supported the inference that, after
the murder, Merritt and Gray traveled in the same direction and
remained in close proximity for several hours. The murder
weapon, Cunningham’s debit card, and the “baby bottle” carried
by one of the unidentified men were found in a hotel room rented
by Merritt under an assumed name. This evidence was sufficient
to authorize the giving of a charge on conspiracy, and thus the
trial court did not err in giving such a charge. See Bates, 317 Ga.
at 820 (holding that the trial court did not err in giving a charge
on conspiracy where the evidence showed that the defendant and
one co-defendant confronted the victim while the other co-
defendants waited nearby; that after the defendant shot the
victim, all the co-defendants left together, stealing the victim’s car
and his cell phone; and that the defendant was together with or
in contact with the co-defendants throughout the day of the
crimes); Smith v. State, 306 Ga. 753, 758 (2019) (holding that the
trial court did not err in giving a charge on conspiracy where the
evidence showed that the defendant and his co-defendants “rode
together to the house in their gang territory where [the victim]
was planning to sell drugs,” “fled the scene together after robbing
and shooting” the victim, and “communicated with each other and
were together before, during, and after the crimes”). Accordingly,
Merritt’s sole enumeration of error is without merit, and we
affirm.




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       Judgment affirmed. All the Justices concur, except Warren,
P.J., not participating.




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