Jermorris Russell seeks appellate review of his convictions
for the shooting death of Quintavian Johnson and the
aggravated assault of Dayveian Gibson.
Viewed in a light most favorable 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 out 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 briefly so
that appellant could remove his 9 mm Glock hand gun which 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 appellant and Johnson resume their play fight.
At some point, Johnson placed appellant in some sort of
"choke hold" and appellant became angry, although
Gibson stated appellant managed to free himself from
Johnson's hold. Noting that the playfulness of the
situation had changed, Gibson put appellant's gun down on
the sidewalk and placed himself between appellant and Johnson
in an effort to deescalate the situation. Ignoring
Gibson's pleas to calm down, appellant took a swing at
Johnson, but missed. A few women who were watching from a
nearby porch laughed. Johnson took a swing at appellant and
punched him in the eye, causing appellant to fall to the
ground. While on the ground, appellant retrieved his gun and
stood back up pointing it at Johnson and Gibson, who had
again placed himself between his two friends in an attempt to
calm tensions down. Nevertheless, appellant fired his gun,
shooting Gibson in the arm, and fatally shooting Johnson, who
witnesses testified was unarmed and tried to run away. The
medical examiner testified Johnson suffered two gunshot
wounds, one of which entered his upper right arm and traveled
into his chest, piercing both lungs and his heart. The
medical examiner also testified that, based on the trajectory
of the fatal bullet, Johnson was not face-to-face with the
shooter, but was turned away from the shooter. Since there
was no soot in Johnson's wounds, the medical examiner
opined Johnson was at least three feet away from the gun when
shot. Appellant did not leave the scene, but called 911, and
surrendered his gun to police when they arrived. Appellant
told one responding officer that he shot Johnson because
Johnson had hit him in the face. Appellant told another
responding officer, "I had to shoot him, they were
trying to fight me."
contends the evidence was insufficient to convict him because
the State failed 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 circumstances 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 S.E.2d 354)
(2013). Malice aforethought may be formed in an instant and
there need not be a showing of any premeditation. See
Wynn v. State, 272 Ga. 861 (1) (535 S.E.2d 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 S.E.2d 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 S.E.2d 824)
(2013). See also Hendricks v. State, 290 Ga. 238 (1)
(719 S.E.2d 466) (2011). The evidence was otherwise
sufficient for a rational trier of fact to find appellant
guilty beyond a reasonable doubt of the crimes for which he
was convicted. See Jackson v. Virginia, 443 U.S. 307
(99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Appellant contends the trial court erred when it did not give
his requested charge on mutual combat. 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 OCGA § 17-8-58 (b). In determining whether plain
error exists, this Court has set forth the following test:
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 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 affect[s]
the fairness, integrity or public reputation of judicial
State v. Kelly, 290 Ga. 29 (2) (a) (718 S.E.2d 232)
(2011). The elements to establish plain error have not been
met in this case because there was no error.
combat occurs when there is combat between two persons 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
S.E.2d 80) (2012). Evidence of an ordinary scuffle or fight
typically does not warrant a charge on mutual combat. See
Donaldson v. State, 249 Ga. 186 (3) (289 S.E.2d 242)
(1982) ("Mutual combat is not a mere fight or
scuffle."). This Court has also held that when the
defendant asserts 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 S.E.2d 879) (2015). See also Pulley v.
State, 291 Ga. 330 (3) (729 S.E.2d 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).
case at bar, there is no evidence that Johnson and appellant
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
appellant 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 agreement 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 defendants 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.
affirmed. All the Justices concur.