RUSSELL v. THE STATE.
S18A0091
Supreme Court of Georgia
April 16, 2018
303 Ga. 478
Appellant Jermorris Russell seeks appellate review of his convictions for the shooting death of Quintavian Johnson and the aggravated assault of Dayveian Gibson.1
1. Viewed in a light most favоrable to sustaining the jury‘s verdicts of guilty, the evidence shows as follows. At the time of the incident in question, appellant was 16 years old. On the night of August 9, 2013, appellant and his friends Johnson and Gibson were hanging оut outside some apartment homes of the Newton County Housing Authority. Witnesses testified that appellant and Johnson were shadowboxing each other and wrestling playfully. The play paused briеfly so that appellant could remove his 9 mm Glock handgun that he had been carrying somewhere on his person. Appellant gave the gun to Gibson, who testified he held the gun to his side while watching аppellant and Johnson resume their play fight. At some point, Johnson placed appellant in some sort of “choke hold” and appellant became angry, although Gibson statеd appellant managed to free himself from Johnson‘s hold. Noting that
Appellant contends the evidence was insufficient to convict him because the State failеd to show he had any intent to shoot and kill Johnson or harm Gibson. We disagree.
[P]ursuant to
OCGA § 16-5-1 (b) , “[m]alice shall be implied where no considerable provocation appears and where all the сircumstances of the killing show an abandoned and malignant heart.” In a case involving implied malice, the state has the burden of proving beyond a reasonable doubt that no considerable provocation for the killing was present and that all the circumstances of the killing show an abandoned or malignant heart.
Browder v. State, 294 Ga. 188 (1) (751 SE2d 354) (2013). Malice aforethought may be formed in an instant and therе need not be a showing of any premeditation. See Wynn v. State, 272 Ga. 861 (1) (535 SE2d 758) (2000). In this case, appellant shot Johnson because he was angered when Johnson punched him in the face. Although appellant set forth a defense predicated on justification, the jury was free to reject such defense. See Browder v. State, supra, 294 Ga. at 190; Sifuentes v. State, 293 Ga. 441 (1) (746 SE2d 127) (2013). As to the conviction for aggravated assault against Gibson, the doctrine of transferred intent makes it irrelevant whether appellant intended to shoot Gibson or only Johnson. See Coe v. State, 293 Ga. 233 (1) (748 SE2d 824) (2013). See also Hendricks v. State, 290 Ga. 238 (1) (719 SE2d 466) (2011). The evidence was otherwise sufficient for a rational trier of fact to find apрellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Appellant contends the trial court erred when it did not give his requested charge on mutual cоmbat. Our review of the transcript reveals appellant failed to object to the trial court‘s decision not to give the requested instruction during the charge conference and also failed to raise any objection after the trial court charged the jury. Accordingly, we may only review the matter for plain error. See
First, there must be an error or defect—some sort of “[d]eviation 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 appellant‘s substantial rights, which in the оrdinary case means he must demonstrate that it “affected the outcome of the [trial] court proceedings.” Fourth and finally, if the above three prongs are satisfied, the [appеllate court] has the discretion to remedy the error—discretion which ought to be
exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial prоceedings.‘”
State v. Kelly, 290 Ga. 29 (2) (a) (718 SE2d 232) (2011). The elements to establish plain error have not been met in this case because there was no error.
“Mutual combat occurs when there is combat between two рersons as a result of a sudden quarrel or such circumstances as indicate a purpose, willingness, and intent on the part of both to engage mutually in a fight.” (Citation and punctuation omitted.) Carruth v. State, 290 Ga. 342 (6) (721 SE2d 80) (2012). Evidеnce of an ordinary scuffle or fight typically does not warrant a charge on mutual combat. See Donaldson v. State, 249 Ga. 186 (3) (289 SE2d 242) (1982) (“Mutual combat is not a mere fight or scuffle.“). This Court has also held that when the defendant аsserts he acted in self-defense during a fight and had no intent to kill, then an instruction on mutual combat is not warranted. See Tepanca v. State, 297 Ga. 47 (5) (771 SE2d 879) (2015). See also Pulley v. State, 291 Ga. 330 (3) (729 SE2d 338) (2012) (trial court did not err in failing to give charge on mutual combat where defendant testified he hit the victim with a television in order to protect himself after the victim had attacked him with a pair of scissors).2
In the case at bar, there is no evidence that Johnson and aрpellant mutually agreed to do anything but playfully shadowbox and wrestle each other. Unquestionably, the playful mood of the encounter changed when Johnson seemingly got the better of аppellant by putting him in a “choke hold,” which in turn made appellant angry, leading him to swing unsuccessfully at Johnson. After Johnson landed a punch to appellant‘s eye, there was no mutual agrеement to continue fighting, playfully or otherwise. Instead, the evidence shows appellant pointed the gun at both Johnson and Gibson as Gibson stepped in between the two boys, urging them to calm down. The evidence also shows that, rather than engage further with appellant, Johnson, who was unarmed, turned away from appellant and ran as shots were fired. Moreover, just like the dеfendants in Tepanca v. State and Pulley v. State, supra, appellant has maintained he shot Johnson in self-defense and had no intent to kill him. In such factual circumstances, a charge on mutual combat was not warranted, and there is no plain error.
Judgment affirmed. All the Justices concur.
Decided April 16, 2018.
Murder. Newton Superior Court. Before Judge Ozburn.
Teresa L. Doepke, for appellant.
Layla H. Zon, District Attorney, Candice L. Branche, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.