June 1, 2015
Reconsideration denied July 6, 2015.
Murder. DeKalb Superior Court. Before Judge Adams.
Gerard B. Kleinrock, for appellant.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Zina B. Grumbs, A'Sheika L. Penn, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur, except Hunstein, J., who concurs in the judgment only as to Division 2.
Hines, Presiding Justice.
Quentric Williams appeals from his convictions and sentences for malice murder, two counts of fleeing or attempting to elude a police officer, and possession of a firearm during the commission of a crime, all in connection with the death of Mitt Lenix. For the reasons that follow, we affirm.
[297 Ga. 461] Construed to support the verdicts, the evidence showed that Williams, a dealer of illegal drugs, attended a drive-in movie theater with his girlfriend, Angel Thomas. At 11:00 p.m., Williams fired a single bullet from his handgun while he and Thomas sat in the back seat of a pickup truck he had rented. According to what Williams told Thomas after the shooting, and what he testified to at trial, Williams saw Lenix approaching the truck " ducking and dodging" between cars, putting his hand in his waistband, and reaching for the door of the vehicle. The bullet went through the closed driver's side window and fatally struck Lenix in the chest.
Immediately after the shooting, Williams rapidly drove away from the theater. Law enforcement officers engaged in a high-speed chase, and Williams crashed his vehicle and escaped by foot; he was later arrested. Williams testified at trial that, as far as he knew, he did not fire the bullet that killed Lenix; he stated that he shot above Lenix to scare him away, and fled because he was on probation and believed that a warrant was out for his arrest. A ballistics expert testified that the condition of the projectile fragment recovered from Lenix's body did not allow him to conclude that it was fired from
the handgun found in Williams's truck. There was no evidence of any other gunshot having been fired at the drive-in that evening.
1. The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Williams was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Williams asserts that during argument, the State misstated the law regarding justification and told the jury that, as a matter of law, Williams's failure to admit that he fired the fatal shot would preclude the affirmative defense of justification; Williams objected to the argument; the trial court overruled the objection, and informed the jury that the court would provide the law to it. The trial transcript reveals the following:
[PROSECUTOR]: Self-preservation does not equal self-defense. Self-preservation does not equal self-defense. [Defense] counsel says it's not relevant that he couldn't -- Quentric couldn't bring himself to say that his bullet, even though the [297 Ga. 462] evidence is clear he's the only one out there shooting, struck and killed Mitt Lenix. He says it's not relevant. But in fact it's probably the most significant relevant information. Why?
An affirmative defense, his defense, self-defense, I had no choice, I was scared, the affirmative defense requires by law that the defendant admits the doing of the act. You don't get self-defense if you don't say you did it. You don't get it. He wants it all. He wants to say if I did it, then I had no choice. But y'all can also find out that I didn't do it. You don't get it unless you admit it. It is the most relevant part. And if you don't admit it and you don't get self-defense, then you don't get justification.
You're justified? What are you justified in doing, Quentric? What are you justified in doing, Quentric? According to you, you didn't do it. So what are you justified in doing? That's why his lawyer was pushing him. Come on, just say it, just say it. 'Cause he knew, his lawyer knew, and he's supposed to know. The problem is nobody clued Quentric.
[DEFENSE COUNSEL]: Your honor, I'm going to object to this characterization of the law.
[THE COURT]: At this point in time, I'm going to overrule the objection. I will be providing the law at the conclusion of the trial and the jurors will draw an inference on what was -- what was or was not argued during this course. But objection's noted.
[DEFENSE COUNSEL]: Thank you, Your Honor.
[THE COURT]: All right. I'll allow the lawyers to continue.
[PROSECUTOR]: Nobody clued Quentric that if you can't admit the doing of the act, then you don't get the protection of self-defense in justification. And now the lawyer says what was in Quentric's mind? What was Quentric thinking?
The prosecutor's argument then continued, addressing the concept of " reasonable belief" as it related to the justification defense.
The State asserts that the argument was essentially a comment on Williams's credibility and his inconsistent defenses, i.e., his claims that he did not fire any gunshot that killed Lenix, and that if he did fire the fatal shot, he was justified in doing so. Certainly, Williams was entitled to claim both justification and lack of causation, as " [a] defendant who pursues alternative defense theories is entitled to requested charges on both theories, if there is some evidence to support each theory. [Cits.]" Bishop v. State, 271 Ga. 291, 292 (3) (519 S.E.2d 206) (1999). See also Turner v. State, 262 Ga. 359, 361 (2) (c) (418 S.E.2d 52) (1992); Hendrix v. State, 268 Ga.App. 455, 456 (1) (602 S.E.2d [297 Ga. 463] 133) (2004). And, the State was free to comment upon Williams's choice to defend against the charges in that manner. See Davis v. State, 290 Ga. 757, 759 (3) (725 S.E.2d 280) (2012) (" It is well settled that counsel 'is permitted wide latitude in closing argument, and any limitation of argument is a matter for the court's discretion.' [Cit.]" ). However, we cannot agree with the State's assertion that the prosecutor's argument can be seen as something other than a statement
regarding the law, i.e., an attempt to inform the jury that the affirmative defense of justification was not, as a matter of law, available to Williams. The prosecutor specifically told the jury that " the affirmative defense requires by law that the defendant admits the doing of the act." (Emphasis supplied.) The prosecutor also told the jury that " if you don't admit it ... then you don't get justification," and that Williams's attorney " knew [this] and he's supposed to know." Of course, as noted, Williams could pursue the seemingly contradictory defenses of lack of causation and self-defense, Bishop, supra, and Williams was entitled to argue self-defense so long as the evidence supported it, whether or not he admitted in his testimony that the gunshot he fired struck Lenix and caused his death. The prosecutor thus misstated the law so as to potentially mislead the jury. See Long v. State, 307 Ga.App. 669, 673 (3) (705 S.E.2d 889) (2011).
But, that does not end the inquiry, and we conclude that no harm arose from the State's argument. See Inman v. State, 281 Ga. 67, 73 (5) (635 S.E.2d 125) (2006). Rather, the court informed that jury that it would provide the law to be used in the jury's deliberations, and it did so. See Spivey v. State, 253 Ga. 187, 189-190 (3) (a) (319 S.E.2d 420) (1984). The court instructed the jury that the closing arguments were not evidence, and that it was the court's
duty and responsibility to determine the law that applies to this case and to instruct you on that law. You are bound by these instructions. It is your responsibility to determine the facts of the case from all the evidence presented. Then you must apply the law I give you in the charge to the facts as you find them.
Furthermore, the court fully instructed the jury on the defenses of mistake of fact and justification. Accordingly, the court made it clear that instruction on the law would come from the court, negating any harmful effect of the prosecutor's misstatement of the law. Id. Moreover, at the conclusion of the court's charge, Williams stated that he had no objections to the charge; if Williams believed that the court's [297 Ga. 464] charge did not go far enough to correct the prosecutor's misstatement, he could have asked for additional instructions.
3. In its charge to the jury immediately before deliberations, the trial court instructed the jury:
An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.
This instruction was, verbatim, that which Williams had requested the court give the jury. Williams made no objection to the instruction at trial, and now contends that it was plain error within the meaning of OCGA § 17-8-58 (b) to give the instruction. As this Court has stated, the test for determining if there has been plain error in jury instructions under OCGA § 17-8-58 (b) is:
First, 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 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 -- [297 Ga. 465] discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. [Cit.]
Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 S.E.2d 366) (2012).
Assuming that Williams did not affirmatively waive this alleged error by requesting the instruction of which he now complains, see Woodard v. State, 296 Ga. 803, 809 (3) (a) (771 S.E.2d 362) (2015); Shaw v. State, 292 Ga. 871, 873, n. 3 (742 S.E.2d 707) (2013), the alleged error is not clear or obvious, and thus, fails to meet the second prong of the plain error test.
The instruction at issue appears in this State's pattern jury instructions, see Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.00.00 (4th ed. 2007), and has been approved in multiple opinions of the Appellate Courts of this State. See, e.g., Brown v. State, 267 Ga. 350 (2) (478 S.E.2d 129) (1996); Ferguson v. State, 322 Ga.App. 565, 569 (2) (c) (745 S.E.2d 784) (2013); Taylor v. State, 231 Ga.App. 73 (2) (498 S.E.2d 552) (1998). Accordingly, it cannot be said that in giving the requested instruction, the trial court committed an error that was clear or obvious. See Wilson v. State, 291 Ga. 458, 460 (729 S.E.2d 364) (2012); State v. Kelly, 290 Ga. 29, 34 (2) (b) (718 S.E.2d 232) (2011).
4. Williams also contends that the trial court committed plain error in the context of OCGA § 17-8-58 (b) when it instructed the jury on the use of testimony of a law enforcement officer about a prior incident in which Williams fled from the officer after being stopped for speeding; the officer began to investigate the smell of marijuana emanating from Williams's vehicle, and Williams snatched his driver's license from the officer's hand and rapidly drove away. The evidence was admitted to show Williams's intent under OCGA § 24-4-404 (b).
[297 Ga. 466] At trial, Williams objected to the admission of this evidence, and in response to the trial court's query, stated that he had no objection to the instruction the court proposed to give, but reiterated his objection to the evidence. Prior to the testimony about the prior incident, the court instructed the jury:
The State is offering this evidence of other crimes, wrongs, and act allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of a character that would commit such crimes. Evidence may be considered only to the extent that it may show the intent to prove in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose. The defendant is on trial for the offenses charged in the indictment only and not for any other acts, even though such acts may incidentally be criminal. Before you may consider any such alleged acts for the limited purpose stated, you must first determine whether the accused committed the other alleged acts. If so, you must then determine whether the act shed any light on the elements of the offenses for which the act was admitted in the crimes charged in the indictment in [297 Ga. 467] this trial. Remember to keep in mind the limited use and prohibited use of this evidence about other acts of the defendant. By giving this instruction, the court in no way suggests that the defendant has or has not committed any other acts, nor whether such acts, if committed, prove anything. This is solely a matter for your determination.
In its charge to the jury just before deliberation, the court repeated this instruction virtually verbatim.
The State asserts that this limiting instruction, too, tracks the pattern jury instructions. And this is correct, although the instruction was given inaccurately; had the pattern charge been followed exactly, the fourth sentence would have read, " [e]vidence may be considered only to the extent that it may show the intent that the State is required to prove in the crimes charged in the case now on trial." See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.34.10 (4th ed. 2007) (Emphasis supplied.) Nonetheless, despite the trial court's misstatement, Williams fails to meet the third prong of the plain error test, which requires that " the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings." Cheddersingh, supra.
The court's charge to the jury included instructions that: intent is an element of any crime, to be proven by the State beyond a reasonable doubt; intent may not be presumed, but may be inferred from the proven circumstances, or by the acts and conduct of the accused; and that criminal intent means the intention to commit the act prohibited, which could be found " upon a consideration of the words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted." Viewing the contemporaneous instructions and jury charges as a whole, the jury was given a proper understanding of the concept of intent and the State's burden to prove it beyond a reasonable doubt, and the failure to give the complete limiting instruction as set forth in the pattern jury instructions did not render deficient the court's instructions as to how the jury was to view the evidence of the prior incident. See Sedlak v. State,
275 Ga. 746, 751 (2) (f) (571 S.E.2d 721) (2002). Accordingly, even though the
contemporaneous instruction was not complete as set forth in the pattern jury
instructions, there is no likelihood that the instruction regarding " intent to
prove" affected the jury's verdicts.
See Choisnet v. State, 295 Ga. 568, 572-573 (2) (761 S.E.2d 322) (2014).
[297 Ga. 468] Judgments affirmed.
All the Justices concur, except Hunstein, J., who concurs in judgment only as to Division 2.