Russell v. State
Russell v. State
Opinion of the Court
Appellant Jermorris Russell seeks appellate review of his convictions for the shooting death of Quintavian Johnson and the aggravated assault of Dayveian Gibson.
[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,
2. 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 *384exercised only if the error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' "
State v. Kelly,
"Mutual 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,
In the 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.
Judgment affirmed.
All the Justices concur.
The crimes occurred on August 9, 2013. A Newton County grand jury indicted appellant on charges of malice murder, felony murder, aggravated assault (Johnson), aggravated assault (Gibson), possession of a firearm during the commission of a felony (Johnson), possession of a firearm during the commission of a felony (Gibson), and possession of a pistol by a minor. After hearing evidence at the trial conducted January 26 to 29, 2015, the jury returned verdicts of guilty on all counts in the indictment. On February 18, 2015, the trial court sentenced appellant to life in prison for malice murder, 20 years in prison for aggravated assault (Gibson) to be served consecutively to the life sentence, five years imprisonment for each count of possession of a firearm during the commission of a felony to be served consecutively to the life sentence, and 12 months imprisonment for possession of a pistol by a minor. The trial court purported to merge the felony murder count into the malice murder count, but in fact the count of felony murder was vacated as a matter of law. The count of aggravated assault (Johnson) merged into the malice murder count. On February 23, 2015, appellant moved for a new trial and amended the motion on April 6, 2017. The trial court denied appellant's motion for new trial on July 3, 2017. Appellant filed a notice of appeal on July 10, 2017. Upon receipt of the record from the trial court, the case was docketed to the term of this Court beginning in December 2017 and submitted for a decision to be made on the briefs.
In some cases, we have held that a charge on mutual combat is warranted only if the combatants are armed with deadly weapons and mutually intended or agreed to fight. See Nelms v. State,
Reference
- Full Case Name
- RUSSELL v. The STATE.
- Cited By
- 9 cases
- Status
- Published