MUNN v. THE STATE
S22A0100
In the Supreme Court of Georgia
Decided: May 17, 2022
MCMILLIAN, Justice.
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 opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Mark Munn appeals his convictions for malice murder and other crimes arising out of the shooting death of Kalliber Chambers.1 On appeal, Munn asserts that: (1) the evidence presented at his trial was insufficient to sustain his conviction for malice murder; (2) the
Viewed in the light most favorable to the jury‘s verdict, the evidence showed that 13-year-old K. C. lived in the Birch Landing Apartments (“Birch Landing“) with her mother. Her adult brother, Chambers, did not live there but visited “every day.” On March 3, 2018, K. C. was at Birch Landing playing outside with other children while her brother and other adults were also outside. A grey car sped by and pulled into a parking space. As the driver began walking
Numerous eyewitnesses identified the shooter as Munn. A neighbor, Joy Smith, testified that she was familiar with Munn because his girlfriend, Tameka Brooks, lived in the apartment across the hall from Smith. Brooks and Munn had three cars including a silver sedan and a red Dodge Charger.3 On the day of the shooting, Smith‘s 12-year-old son was playing outside with K. C. and other children. That afternoon, Smith noticed that it “[s]eem[ed] like something was going on” between Munn and Brooks before Munn left in a silver sedan. Munn later returned, speeding through the parking lot and almost hitting the children playing. Chambers
Another witness, Malcome McGee, arrived at Birch Landing about 15 minutes before the shooting. McGee was sitting in the driver‘s seat of his own car, and Chambers was standing next to McGee‘s open car door. McGee saw Munn, whom he knew, drive into the parking lot and park one space away from McGee‘s car. When Chambers asked Munn to slow down, Munn stepped out of the car and said, “Don‘t play with me.” Munn and Chambers‘s conversation was not long. Munn fired six or seven shots, and Chambers fell down face first. McGee and another witness turned Chambers over, and
Other eyewitnesses present on March 3 testified that when Chambers asked Munn to slow down because of the kids, Chambers did so in a normal, non-threatening tone. After Chambers spoke to Munn, one witness heard Munn respond, “What did you say?” - prompting Chambers to again ask Munn to slow down, with no anger in his voice. Witnesses saw Munn draw a small-caliber handgun and Chambers throw his hands up stating, “I know you‘re not going to shoot me.” Another witness stated that Munn fired six to eight shots before fleeing in a red Challenger.
Brooks testified that, in 2018, she lived in Birch Landing and that Munn was her boyfriend; he regularly stayed with her. On March 3, Brooks and Munn went to the nail shop and then to Applebee‘s. After they returned to Birch Landing, Munn‘s mother called, requesting food. Brooks and Munn got into a disagreement because Brooks did not want to leave;5 Munn became upset and left
Deputy Michael Long, one of the responding officers on March 3, 2018, testified that he arrived at Birch Landing before emergency medical services. While another deputy was attending to Chambers, Deputy Long secured the scene and collected contact information from witnesses. His body camera video recording, which was played for the jury, showed unsolicited comments from several people, including two people who spoke about what they had witnessed: that
Stephen Albright, a paramedic for the Douglas County Fire Department, responded to the call around 5:30 p.m. on March 3 and arrived at Birch Landing around 5:45 p.m. He transported Chambers to the hospital a few minutes later, where Chambers was declared dead. The medical examiner who conducted the autopsy testified that Chambers suffered three gunshot wounds through his torso and one wound through his right arm. All three torso wounds were severe, causing internal bleeding, and one of the gunshots perforated the heart. The medical examiner opined that the cause of death was multiple gunshot wounds.
Crime scene investigator Joe Williams testified that he arrived at the scene after Chambers was transported to the hospital. Williams testified that three nine-millimeter cartridge casings were recovered from the parking lot. A GBI firearms investigator testified
Once in custody, Munn was interviewed by Investigator Jay Hayes. Investigator Hayes conducted two separate interviews with Munn on March 4: the first at 12:40 a.m. and the second at 4:30 p.m. Both interviews were audio and video recorded and introduced into evidence.8 During the first interview, Munn was communicative and answering questions. Munn insinuated that Chambers was a “Crip” gang member and acknowledged knowing that Chambers was dead, but denied shooting him. Munn also provided an alibi and questioned Investigator Hayes about why there were eight holes in Chambers if there were only five shots. Investigator Hayes ultimately stopped this interview because he decided to interview Munn again later when Munn was more sober. During the second interview, Munn accepted responsibility for the shooting, acknowledged that he shot Chambers multiple times, and said he
Munn did not testify at trial, but recordings of several phone calls made by Munn to Brooks from jail were introduced into evidence and played for the jury. In these calls, Munn repeatedly admitted to Brooks that he killed Chambers, and he expressed guilt over the situation. At trial, defense counsel moved generally to exclude the jail calls and specifically moved to exclude the “one where Mr. Munn is heard saying words that basically he‘s done this [i.e. killed] before,” arguing that it was highly prejudicial character evidence. The court overruled the objection and admitted the jail
1. In his first enumeration of error, Munn asserts that the evidence presented at trial was insufficient to sustain his conviction for malice murder under
Here, there was more than sufficient evidence of malice. Multiple witnesses testified that Chambers approached Munn about his driving, causing Munn to become angry. Munn shot Chambers multiple times, despite Chambers raising his hands. By Munn‘s own admission, he shot Chambers while Chambers was unarmed and unthreatening.11 Thus, the evidence was sufficient to support the finding that Munn was guilty of malice murder. See Williams v. State, 306 Ga. 674, 675 (1) (832 SE2d 843) (2019) (finding implied malice where appellant shot unarmed victim leaving the scene after
2. Munn contends that the trial court erred in refusing his request to charge the jury on the lesser offense of voluntary manslaughter.
[A] trial court is required to grant the defendant‘s request for a charge on the lesser included offense of voluntary manslaughter if there is any evidence, however slight, to support such a charge. Whether such slight evidence exists is a question of law. The crime of voluntary manslaughter is committed when one kills “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.”
OCGA § 16-5-2 (a) .
Blake v. State, 292 Ga. 516, 518 (3) (739 SE2d 319) (2013) (citations omitted).
Munn argues that Chambers‘s confrontation about Munn‘s driving, Chambers‘s escalation of the argument after Munn stated he did not want to talk, and Munn‘s knowledge of Chambers‘s street name, “Crip,” (demonstrating affiliation with a known violent street
3. Munn asserts that the trial court committed plain error by failing to charge the jury on his sole defense of justification because
To establish plain error, an appellant must meet each prong of a four-prong test: [F]irst, 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. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the outcome of the trial proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which out to be exercised if only the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Washington v. State, 312 Ga. 495, 498 (863 SE2d 109) (2021)
To authorize a jury charge, there must be slight evidence supporting the charge. See Floyd v. State, 307 Ga. 789, 798 (3) (837 SE2d 790) (2020); Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Here, Munn claims the prosecutor acknowledged during the charge conference that there was evidence to support a justification defense, presumably referring to Munn‘s statement that Chambers ran up to him saying that Chambers did not care that Munn had a gun. Even assuming that is true, we fail to see how the failure to give the charge would have affected the outcome of the proceedings. Munn‘s self-serving statement was the only evidence even arguably supporting a justification defense; in comparison, multiple eyewitnesses testified that Munn shot an unarmed Chambers after Chambers threw his hands up and Munn admitted in his second police interview that he shot Chambers multiple times
4. Munn next asserts that the trial court denied Munn his right to a fair trial and due process by placing Munn in shackles before the jury.
After the charge conference, Munn became very upset and
[I]t‘s my job to protect everyone present. . . . [T]he evidence has shown that the defendant shot someone. That‘s not in dispute . . . . I‘ve been observing the defendant through this trial and I‘m very concerned that he‘s not going to be able to control himself. . . . He can remain in the courtroom shackled, and I will give the jury an instruction in regard to that, or he can just stay in the holding cell while we finish these proceedings.
Munn‘s trial counsel then walked over to the jury box and stated: “I mean you can kind of see his feet. . . . I just don‘t want there to be prejudice, this late in the game, with him having shackles on . . . if the jury can see that.” However, counsel did not make a specific objection to Munn being shackled.13 Munn subsequently elected to remain in the courtroom, and the trial court instructed the jury in
Because trial counsel did not make a specific objection at trial, this issue is not preserved for review, and this enumeration of error fails. See Whatley v. State, 270 Ga. 296, 302 (14) (509 SE2d 45) (1998) (“A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (citation and punctuation omitted)).
5. Munn asserts that it was error for the trial court to admit the recording of the responding officer‘s body camera video into evidence over objection because the video contained witness statements (specifically from Quantel Williams and McGee) telling Deputy Long that the shooter shot Chambers for no reason - which, he argues, violated his right to confrontation guaranteed by the Confrontation Clause and was inadmissible hearsay.
(a) 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.
Here, Deputy Long arrived at the scene approximately ten minutes after the shooting occurred and before the ambulance had arrived. As Deputy Long was attempting to secure the scene and put up crime scene tape, he was asking people to get out of the way when several onlookers, including Williams and McGee, made unsolicited comments directed to the police about what had just happened, including that “he shot him for no reason” and “he did that s**t for no reason.” Even if these statements were considered testimonial, both Williams and McGee testified at trial and were subject to cross-examination, so the admission of their statements does not violate
(b) Because we have determined that the admission of the statements on Deputy Long‘s body camera footage do not violate the Confrontation Clause, “normal rules regarding the admission of hearsay apply.” McCord v. State, 305 Ga. 318, 322 (2) (825 SE2d 122) (2019) (citation and punctuation omitted). A statement that would otherwise be excluded as hearsay may be admissible as an excited utterance, where the statement “relat[es] to a startling event . . . [and is] made while the declarant was under the stress of excitement caused by the event.”
We have explained that the excited utterance need not be made contemporaneously with the startling event. Rather, the court should consider the totality of the circumstances in determining whether the statement was made while the declarant was still under the stress or excitement that the startling event caused.
Here, the video recording shows that the witnesses were screaming and crying as they made their unsolicited statements; the statements were made approximately ten minutes after the shooting, while Chambers was still on the scene bleeding to death; and the witnesses were still under the stress of the shooting. See McCord, 305 Ga. at 324 (2) (a) (i) (statements were excited utterances where witness was “emotionally traumatized” shortly after discovering the victim‘s body and statements were “blurted-out“); Varner, 306 Ga. at 732 (2) (b) (ii) (witness statements on police recording were excited utterances because “stress and excitement caused by the shooting had not yet dissipated” when “police officers responded just minutes after the shooting, and [the victim] was still bleeding profusely as he waited for an ambulance“). The trial court did not abuse its discretion in admitting these statements as excited utterances.
6. Munn next asserts that the trial court erred in admitting
Munn argues that this statement was unduly prejudicial and should have been excluded under
The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so.
Rodrigues v. State, 306 Ga. 867, 871 (2) (834 SE2d 59) (2019) (citations and punctuation omitted). Here, as the trial court explained in its ruling on Munn‘s motion for new trial, the calls were
7. Munn contends that the trial court erred in denying his Jackson-Denno motion to suppress his first custodial interview with Investigator Hayes because the statements in his first interview were involuntary due to his intoxication, as evidenced by his slurred speech, his lack of coherence, and Investigator Hayes‘s ultimate decision to stop the first interview to allow Munn to sober up. We disagree.
In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court‘s decision on admissibility will be upheld on appeal.
Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009) (citation and punctuation omitted). Statements are not automatically rendered inadmissible based merely on intoxication at the time the statements are made. See id.
Investigator Hayes explained that, during the first interview, Munn was answering questions appropriately and that, although he was intoxicated, it appeared that his statements were the product of free will. Investigator Hayes ended the first interview because, while Munn was not “completely inebriated,” Investigator Hayes wanted Munn to have a “shot at [the interview] sober as opposed to that state of mind that alcohol sometimes diminishes a little bit of your ability to think different ways.” The trial court determined that the statements in the first interview were freely and voluntarily
8. Finally, Munn contends that he received ineffective assistance of counsel in several ways. His claims are without merit.
To establish ineffective assistance of counsel, Munn must demonstrate both that trial counsel performed deficiently and that the deficient performance resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S. Ct. 2052, 80 L. Ed. 2d 674) (1984); Vivian v. State, 312 Ga. 268, 272 (2) (862 SE2d 138) (2021).
To show deficient performance, [Munn] must demonstrate that his counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. To show resulting prejudice, [Munn] must
demonstrate that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. . . . The combined effect of counsel‘s unprofessional errors must be considered in assessing whether the requisite prejudice has been shown.
Fisher v. State, 299 Ga. 478, 483 (2) (788 SE2d 757) (2016) (citations and punctuation omitted). If Munn “fails to establish either prong of the Strickland test, we need not examine the other.” Vivian, 312 Ga. at 273 (2).
(a) Munn first claims that his trial counsel was ineffective by failing to file a written request to charge the jury on the defense of justification. This argument fails.
Assuming, without deciding, that trial counsel‘s failure to request a justification charge was deficient, Munn “was not prejudiced unless there is a reasonable probability that, absent counsel‘s alleged error in failing to . . . request that charge, the jury would have reached a [different] verdict.” Blackwell v. State, 302 Ga. 820, 827 (3) (809 SE2d 727) (2018). However, “[b]ecause we have concluded that [Munn] has failed to establish prejudice under the
(b) Munn further contends that his trial counsel was ineffective in failing to request a mistrial after the trial court ordered that Munn remain shackled in front of the jury.
“[N]o person should be tried while shackled . . . except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344 (I) (90 S. Ct. 1057, 25 L. Ed. 2d 353) (1970). But the court has the discretion to resort to shackling, under some circumstances, where “an essential state interest [is] furthered . . . [and where] less restrictive, less prejudicial methods of restraint were considered.” Hill v. State, 308 Ga. 638, 644 (1) (a) (842 SE2d 853) (2020) (citations and punctuation omitted).
As the trial court explained in denying Munn‘s claim that his due process rights were violated by his shackling at trial: Munn weighed approximately 270 pounds and was over six feet tall; he was not seated at the table closest to the jury; there was concern that “what
Judgment affirmed. All the Justices concur.