WIPFEL v. THE STATE
S24A0835
Supreme Court of Georgia
Decided: October 15, 2024
WARREN, Justice.
WARREN, Justice.
of error, Wipfel contends that the trial court plainly erred when it failed to instruct the jury on involuntary manslaughter as a lesser offense of malice murder. For the reasons explained below, we affirm.
1. As relevant to Wipfel‘s enumeration of error on apрeal, the evidence presented at Wipfel‘s trial showed the following. Wipfel, Dennis Eason, Jr., Tevin Sams, Antonio Garvin, and Garvin‘s cousin Jeremy Jackson were together on the night of January 5, 2015. Eason was a drug dealer, and Wipfel sold drugs on his behalf. Eason was involved in a dispute over drugs and money with Dejad Williams, who lived with his girlfriend and her sons, eight-year-old Anderson and six-year-old J.A., in an apartment in Fort Valley.
At trial, Garvin testified as follows. Wipfel, Eason, Sams, Garvin, and Jackson met at Jackson‘s apartment in Macon, where Eason discussed his dispute with Williams. Spurred on by Eason, the five men decided to drive to Fort Valley and confront Williams to “get [Eason‘s] product or his money back.” When the men arrived at the apartment complex, they saw Williams standing outside an apartment building holding a gun. They parked near the back of the complex and got out of the cars. Eason and Sams were carrying handguns, and Eason told Wipfel, “[Y]ou have to do this for me.” Eason, Sams, and Wipfel walked from the cars to the apartment complex. Eason walked back toward the cars, and then Garvin heard gunshots.
Moments later, Sams and Wipfel ran back to the cars; Wipfel got in Garvin‘s car; Eason and Sams got in Jackson‘s car; and they all fled to Jackson‘s apartment. There, Wipfel and Sams stated “that they shot into the doorway of an apartment.” Wipfel also said that Sams shot through the door first and then Wipfel started shooting; Garvin thought that Wipfel used Eason‘s gun.
Jackson told a similar story. He testified that on the evening of January 5, he, Wipfel, Eason, Sams, and Garvin discussed “an altercation between [Eason] and some other guy” before the group made “a decision to go down to Fоrt Valley.” After the two cars parked near the apartment complex, Sams and Wipfel—who was carrying Eason‘s “silver and black gun“—got out and talked with Eason. Eason then got back in the car with Jackson, and Wipfel and Sams went toward the apartment complex. Jackson then “heard shots” and saw Wipfel and Sams “running back” to the cars. Wipfel got in Garvin‘s car, and Sams got in Jackson‘s car, and the men drove back to Macon.
Sams testified that he went to the apartment complex with the other men and, when they arrived, Wipfel and Eason went into the apartment complex, gunshots rang out, and Wipfel and Eason—who had a gun in his hand—then ran back to the cars. Sams admitted that he had owned a .40-caliber Glock handgun, but claimed that it was stolen several months before the shooting.
Williams—the apparent target who wаs not wounded in the shooting—testified that in the early morning hours of January 6, he received multiple threatening text messages from a phone number he did not recognize and that he responded to the messages with threats of his own. Moments later, multiple shots were fired into the door to Williams‘s apartment. Williams was in the bedroom, and eight-year-old Anderson, who was playing a video game, and six-year-old J.A., who was sleeping, were in the living room. Anderson was shot twice: once in the leg and once in the upper abdomen. He later died.
Wipfel did not testify at trial. His defense strategy was to argue that he did not possess
2. Wipfel contends that the trial court plainly erred by failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser offense of malice murder. Wipfel did not ask for this instruction at trial but contends the trial court should have given it on its own. Specifically, he argues that the evidence at trial showed that he lacked the requisite malice to shoot and kill Anderson and that he merely participated in shooting at Williams‘s apartment door, which amounted to the misdemeanor crime of reckless conduct, and—without any intent to do so—caused Anderson‘s death. See
As Wipfel concedes, because he did not object to the trial court‘s omission of an instruction on invоluntary manslaughter based on reckless conduct, we review his claim for plain error only. See
[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 affеcted the appellant‘s substantial rights, which in the ordinary 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 appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputatiоn of judicial proceedings.
Lewis v. State, 311 Ga. 650, 664 (859 SE2d 1) (2021) (citation omitted). “An appellant must establish all four elements of the test in order to demonstrate plain error, so satisfying this test is difficult, as it should be.” Clark v. State, 315 Ga. 423, 440 (883 SE2d 317) (2023) (citation and punctuation omitted).
(a) The State contends that we can decide the plain-error analysis on the basis that the trial court did not err at all in this case. Citing State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976), the State contends that “the law in Georgia remains that a trial court does not err when it does not sua sponte charge the jury on an unrequested instruction for a lesser-included offense.” As we explain more below, we agree that the substantive rule Stonaker sets forth in this regard, which our Court has applied dozens of times since Stonaker was decided, is still valid and applies today—even after our appellate courts’ application of plain-error review for “alleged jury instruction errors to which no objeсtion was asserted at trial.” See State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011) (interpreting
In Stonaker, this Court reviewed the Court of Appeals’ decision reversing a defendant‘s conviction for child molestation on the basis that the trial judge had not charged the jury on a “lesser offense to that offense delineated in the indictment . . . even though no such charge was requested in writing.”2
without citing any relevant authority—common law, decisional law, statute, оr otherwise—and even though none of the four “rules” was required to resolve the defendant‘s claim of error.
The State has raised the first of the Stonaker “rules” in Wipfel‘s appeal: that “[t]he trial [judge] also may, of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation. However, his failure to do so, without a written request by the State or the accused, is not error.” Id. at 2.
Though that substantive legal rule was necessarily dicta in Stonaker,4 this Court applied it as an alternative holding just days later in another criminal case. See Smith v. State, 236 Ga. 5, 10 (222 SE2d 357) (1976) (in rejecting appellant‘s claim that the trial court erred by failing to charge a lesser offense in the absence of a request to do so, stating that “today this court has held that it is not error for the trial court, in the absence of a written request, to fail to charge on lesser crime included in the crime charged in the indictment or accusation . . . rеgardless of whether the evidence would have authorized or demanded such a charge,” and citing and applying Stonaker, 236 Ga. at 1). And we have continued to apply that substantive rule, first announced in Stonaker, for decades. See also, e.g., Wellborn v. State, 236 Ga. 319, 319 (223 SE2d 698) (1976);
Bouttry v. State, 242 Ga. 60, 62 (247 SE2d 859) (1978); Chastain v. State, 255 Ga. 723, 725 (342 SE2d 678) (1986); Hawkins v. State, 267 Ga. 124, 124 (475 SE2d 625) (1996); Wyman v. State, 278 Ga. 339, 341 (602 SE2d 619) (2004); Brown v. State, 285 Ga. 324, 327-328 (676 SE2d 221) (2009).
We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between
State, 362 Ga. App. 288 (868 SE2d 262) (2022).6 There, the defendant had been convicted of multiple criminal offenses and did not request that the jury be charged on two lesser offenses, yet later claimed on appeal that the trial court committed plain error by failing to charge the jury on the lesser offenses. In evaluating that argument, the Court of Appeals noted that it was not entirely clear whether, in such a circumstance, an appellate court should evaluate the claim of error under Kelly‘s plain-error standard or under the substantive rule announced in Stonaker that a “trial judge never errs in failing to instruct the jury on a lesser included offense where there is no written request to so charge.” See Miles, 362 Ga. App. at
291 (quoting Stonaker, 236 Ga. at 2).7 The court then went on to analyze the defendant‘s claim of error “under the plain error standard of review of Kelly rather than the simplified no error approach of Stonaker,” but nonetheless looked to Stonaker to determine whether there was “a clear or obvious error that substantially affected the outcome of the proceedings.” Miles, 362 Ga. App. at 293-294 (citing Kelly, 290 Ga. at 33). It then applied the substantive rule from Stonaker to conclude that the trial court had
not plainly erred by not instructing on the lesser offense that the defendant did not request at trial, but later complained of on appeal. Id. at 294.
We take this opportunity to clarify that the plain-error review standard set forth in
We also take this opportunity to express our disapproval of the way our Court announced legal “rules” in Stonaker on its own accord, without citing any authority in support, in a case that did not present the issues the rules would resolve (that is, in dicta). See Stonaker, 236 Ga. at 2. See also Zepp, 283 Ga. at 397. Whatever good intention our Court may have had in doing so,8 our job is to discern and apply the law—not to create it. See, e.g., Sons of Confederate Veterans v. Henry County Bd. of Comm‘rs, 315 Ga. 39,
52 n.10 (880 SE2d 168) (2022) (“Thе limitations on the judicial power prevent us from rendering advisory opinions on Georgia law.“); Fulton County v. City of Atlanta, 299 Ga. 676, 677 (791 SE2d 821) (2016) (“It is a settled principle of Georgia law that the jurisdiction of the courts is confined to justiciable controversies, and the courts may not properly render advisory opinions.“).9
(b) Having clarified that the substantive rule from Stonaker at issue in this case remains valid, we now apply that rule here. To prevail on his claim of instructional error, Wipfel must demonstratе that the trial court‘s failure to charge on a lesser offense constituted legal error. But no one asked for such a charge at trial, and the failure to charge on a lesser crime than the crime included in the indictment, “without a written request by the State or the accused, is not error.” See Stonaker, 236 Ga. at 2; Smith, 236 Ga. at 2. Having failed to demonstrate legal error, Wipfel‘s claim of plain error fails.
Judgment affirmed. All the Justices concur, except Boggs, C.J., who concurs in judgment only in Division 2.
Notes
Stonaker, 236 Ga. at 2. Because those legal rules are not at issue in this appeal, we do not analyze them here.“The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the State has affirmatively withdrawn a crime or stricken it from the indictment or accusation.
The State or the accused may, by written application to the trial judgе at or before the close of the evidence, request him to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.
An erroneous charge on a lesser crime to that set forth in the indictment or accusation does not rise to thе level of reversible error, unless such charge was harmful to the accused as a matter of law.”