321 Ga. 739 FINAL COPY
S25A0232. DOUGLAS v. THE STATE.
LAGRUA, Justice.
Jeremiah Douglas was convicted of murder and aggravated
assault for pushing Leea Raines, his former girlfriend, out of the
truck he was driving, killing her.1 Douglas’s sole defense at trial was
that Raines “committed suicide” by jumping out of the truck as she
suffered from a narcotic withdrawal. Douglas contends on appeal
that (1) the evidence was insufficient to support his convictions for
1 Raines was killed on November 5, 2021. On September 8, 2022, a Dade
County grand jury indicted Douglas for malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), and two counts of making a false statement (Counts 4 and 5). Douglas was tried in October 2022 and a jury found him guilty on all counts. The trial court sentenced Douglas to life without possibility of parole for malice murder (Count 1). Count 2 was vacated by operation of law. The trial court purportedly sentenced Douglas to 20 years for aggravated assault (Count 3), to run consecutively to Count 1. The trial court merged Count 5 into Count 4 for sentencing purposes, sentencing Douglas to an additional five years on Count 4, which, by amended order, purportedly ran consecutively to the sentence for aggravated assault (Count 3). Douglas timely filed a motion for new trial which he subsequently amended through new counsel. On July 19, 2024, the trial court held a hearing on the motion and denied it by amended order on August 5, 2024. Douglas filed a timely notice of appeal on August 16, 2024, and his case was docketed to the term of this Court beginning in December 2024 and submitted for a decision on the briefs. malice murder2 and aggravated assault, and (2) Douglas’s trial
counsel was ineffective for failing to request a jury charge on the
lesser offense of voluntary manslaughter. Although we conclude
that the trial court committed a merger error, and thus vacate one
conviction and remand for resentencing on another conviction, we
otherwise affirm.
The evidence admitted at trial showed that Douglas and
Raines met online in June 2021. Raines moved in with Douglas that
July and died in November. The record reflects that Raines was
addicted to drugs, including methamphetamine, heroin, and
fentanyl.
On the night of November 4, 2021, Douglas took Raines “out”
to play bingo “to celebrate her getting a new job.” Raines spent the
night at Douglas’s house. Between about 1:58 and 3:31 on the
2 Douglas’s felony murder conviction was vacated by operation of law,
which moots any appeal as to that conviction. See Fortson v. State, 313 Ga. 203, 209 (1) n.11 (869 SE2d 432) (2022) (holding that “[a]ny challenge as to the sufficiency of the evidence” relating to convictions that merged or were vacated by operation of law was moot). Douglas does not appeal his convictions for making false statements. 2 morning of November 5, the record shows that Raines set up a
Facebook page which she used to message three men, all of whom
appeared to be romantic interests with whom Raines wanted to do
drugs.
On the morning of November 5, a witness testified that she was
driving near the local methadone clinic when she saw a “brown and
tan looking older model pickup” truck, which Douglas admitted at
trial he was driving that morning, in the oncoming lane, “kind of
swerving” until it “got over in” her lane. The witness testified that
she pulled over until the truck passed. She said that as the truck
approached, “[i]t looked like the driver was trying to push the
passenger out” while the passenger door was “all the way open,” and
the passenger was “[t]rying to pull the door back to.” The witness
said that the driver “was behind the wheel, but kind of scooted over
a little bit . . . [t]oward the passenger.” The witness said that she
could see the driver’s hand “pushing towards” the passenger, and
that she saw that hand “mak[ing] contact with” and “pushing” the
passenger’s “upper arm.” The witness said that she could see
3 nothing further in her rearview mirror once the truck passed. She
said that the truck never stopped or slowed down while she watched
it, its speed remaining “[a]bout the same,” which she estimated at
about 50 miles per hour.
The witness drove to a nearby gas station and called 911, the
first of two such calls. The calls were admitted into evidence and the
State played them for the jury. In the first call, the jury heard the
witness saying that the truck was “all over the road with the
passenger door open. It looks like they’re tryin[g] to push them out
of the truck,” and “you could see [th]em tryin[g] to push somebody
out of the truck.” The witness drove back to the scene, whereupon
she called 911 the second time, and was recorded saying, “whoever
was drivin[g the truck] has actually pushed them out of the vehicle,
they’re laying [sic] in the road.”
A second witness testified that he was driving “past the
treatment center” that morning when he saw a “maroon, two toned,”
“old Ford pickup truck” “coming around the curve” with its
“[p]assenger’s side” door “[a]ll the way” open. The witness said he
4 saw the truck “swerve over into the opposite lane,” with the door
staying “wide open,” until the witness drove “around the curve and
lost sight.” The witness testified that the truck “appeared to be
speeding up” to around “60 [or] 70” miles per hour, and the witness
never saw it slow down or stop. The witness did not see a passenger
in the truck.
According to video surveillance footage, Douglas returned
home and then left again roughly five minutes later. Evidence at
trial showed that he drove to do handyman work at a house about
30 minutes away.3 By then, law enforcement had responded to the
scene and found Raines lying in the roadway “obvious[ly]” deceased.4
3 The house belonged to Ashvini Vardhana. Vardhana testified that Douglas arrived at her house around 9:30 a.m., and that nothing seemed “off about [Douglas’s] conversation or personality,” other than that he appeared “[p]reoccupied a little bit” and he worked “slow[ly].” 4 Medical Examiner Andrew Koopmeiners testified that Raines suffered
subarachnoid and subdural hemorrhages caused by blunt impact to her brain; “numerous injuries” to her chest including three rib fractures; lacerations to her heart, diaphragm and liver; and damage to her lungs and aorta. He said that her “most significant” injuries were to her brain, which were “potentially fatal,” and to her lacerated organs, “particularly the heart and the aorta,” which would “bleed very rapidly and . . . are likely to be fatal as well,” causing Raines to bleed to death within “probably minutes.” Either the brain or heart injuries “independently could have contributed” to Raines’s death. Dr.
5 A dashcam in one of the vehicles of responding law enforcement
captured a two-toned pickup truck driving past Raines’s body.
Within “[a]round two minutes” of the truck’s passing Raines’s body,
Douglas initiated a text conversation with Raines’s brother,
Brandon Raines. Brandon’s trial testimony, based on screenshots of
the text chain which were admitted into evidence, showed the
following interchange:
DOUGLAS: [Raines] ran out on me last night. I don’t know where she went. I went to bed, left her the phone and when I got up she was gone. She was literally supposed to start a job [at a local establishment] like Saturday . . . but I love that chick. Why can’t she just get it together? If you hear from her will you please let me know? And I’ll do the same . . . . BRANDON: I have no idea man. We’ve been wishing and praying for years . . . . DOUGLAS: . . . [Last night] I took her out to bingo to celebrate her getting a new job. We played from like 6:30 to 10:30[. D]ude she [won a] $100 jackpot. She was so happy . . . . S**t $100 jackpot . . . that’s why she ran. She had $100 in her pocket and she was wanting to use [drugs,] and I wouldn’t take her. I didn’t even think about that. F**k this is all my fault. Look if you hear from her . . . tell her it’s okay and that just come home[,] you know
Koopmeiners testified that the cause of death was “multiple blunt force injuries . . . consistent with someone exiting a vehicle at high speed going down a highway.” 6 so she can still go to work[,] take care of her cousins[,] and that I do love her . . . . BRANDON: I’ll tell her if I talk to her man but it isn’t your fault . . . . DOUGLAS: You’re right and I know you’re right, but that doesn’t make it any easier. If I just pay a little more attention. I just hope she’s okay and makes it back before our first day of work[,] as messed up as that is . . . . BRANDON: Hopefully we hear from her soon . . . DOUGLAS: . . . I know[,] I’m worried. She’s been clean for 20 days. I’m afraid she’s going to OD . . . . BRANDON: Lord I hope not.
Douglas continued driving to work, returning home later that
day. Brandon testified that that evening around 8:00, Douglas called
him and said, “they just found a body and they think it might just
be your sister,” at which point Douglas “started breaking down in
tears.”
Brandon testified that he had known Raines to “think about
suicide” and that she had attempted suicide “[o]nce” before by
overdosing on painkillers. He said that the prior attempt “pretty
much scared [her] away to want to attempt again. It kind of gave
her a new[-]found respect for her own life.”
7 A post on Raines’s Facebook account on October 2, 2021, stated
that Raines “love[d] [her]self at least enough not to die on purpose[.]”
Surveillance video of the area from several sources, combined
with evidence from the scene and witness interviews, allowed law
enforcement to trace the truck to Douglas’s stepfather, and from him
to Douglas. At about 5:00 a.m. on November 6, the day after Raines
died, GBI Agent Ghee Wilson went with a law enforcement team to
search Douglas’s house, pursuant to a warrant. Agent Wilson
interviewed Douglas as the team executed the search warrant. After
Douglas waived his Miranda5 rights, he told Agent Wilson that he
had last seen Raines at 10:00 the night before she died, when
Douglas went to bed. Douglas said that he woke the next morning
at 8:00 and Raines “wasn’t there.” Douglas said that he “didn’t know
where she went,” that he “didn’t look for her,” that he went “straight
from the house” to the address where he was working for the day,
and that he “didn’t make any stops, didn’t go anywhere.” Douglas
told Agent Wilson that he drove a “smaller silver Nissan car” to
5 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
8 work. Agent Wilson testified that when he asked Douglas whether
he had driven his stepfather’s truck, Douglas “was adamant” that
he had driven the Nissan and not the truck. Douglas told Agent
Wilson that it had been “way more than seven days since [Douglas
had] seen or sat in that truck.” Later in the interview, Douglas said
that “he had seen the truck, but he still had not been in that truck
or sat in that truck in more than a week.” Law enforcement took
Douglas into custody after they finished searching the home.
A GBI toxicologist testified that Raines had methamphetamine
in her blood when she died, but the toxicologist could not determine
when Raines ingested the methamphetamine, how much she
ingested, or whether Raines “would have been under the influence
of or feeling the effects of” the methamphetamine the morning she
died. The toxicologist could only say that “at some point” Raines had
ingested methamphetamine.
A GBI crime-scene specialist testified that Raines rolled
approximately 111 feet from the site of first impact to where her
body lay in the road, and that the road rose about ten feet in that
9 distance. He opined that “[i]f she was going that far uphill, the
vehicle had to have been going fast.” The specialist also testified that
no tire marks were apparent at the scene, which he would have
expected to see had Douglas tried to make a sudden stop.
Douglas testified in his own defense at trial. He indicated that
he and Raines broke up and got back together “about five or six
times” in the few months leading up to Raines’s death. After one
breakup, Douglas texted someone that he was “not upset at all” with
Raines, but that he felt “extreme hate” toward her, “like [he] hope[s]
she ODs,” and that he was glad it was over between them because
“hate beats hurt.” Douglas testified that he broke up with Raines for
the last time at the end of September, which was about six weeks
before she died. He testified that from that point on he preferred to
be Raines’s “friend with a chance of helping her [rather] than try to
have a relationship with her . . . . She needed a friend, not a
boyfriend.”
Douglas testified that at approximately 9:00 on the morning
that Raines died, he drove her in his stepfather’s two-toned truck to
10 “get a bank account set up” for her, which she needed for her new
job. Their planned route took them past the nearby methadone
clinic.
He said that as he and Raines were driving to the bank, Raines
“looked straight ahead and just as calm as she could be she said [she
couldn’t] do this anymore, [she didn’t] want to do this.” He testified
that she said she “want[ed her] mom,” who had previously died, and
that “wanting her mom” meant to Douglas that Raines wanted to
overdose. Douglas further testified that Raines was “three days off
a detox,” meaning that she had not been able to obtain drugs in that
time, and “when she hits day three of detox that’s when she becomes
suicidal.”
Douglas said that he “did a U-turn to head home.” He testified
that as they drove over an overpass, the guardrail of which was
“right by her door,” Raines said “f**k it, [she’ll] just jump the rail.
And she opened the door.” Douglas testified that he said
what the f**k are you doing, get back in the truck, you’re going to kill yourself. We’re going [30 to 35 miles per hour]. She screams no. So I don’t know what. I can’t stop.
11 If I stop, she’s going to jump the rail. So I did what I could . . . . I drifted the car over to hugging the . . . center line and I juked it. A juke meaning, like, towards [Raines] and mashed the gas. I used my own body weight to throw her back in the car. I brought her back in the car and the door closed and I hit the gas because if I stop, in my mind, she’s either going to jump the rail or she’s going to go OD. That home base is 90 seconds away at 70 miles an hour, a mile and a half, it’s 90 seconds. If I can keep her in the truck for 90 seconds, we can be safe at home. I needed 90 seconds. We’re passing [the methadone clinic] and she starts pushing on the door. She tries to wrench the door open with her purse. It gets kicked back out. She tries to wedge the door open with her backpack. It gets out, then she just got the door open and left. She left. It’s the same thing as falling out a seven-story window and I panicked. I panicked. I didn’t know what to do.
Douglas said that he was also afraid to simply stop the truck
because he had a prior conviction for statutory rape and child
molestation. He said that meant that he would have been “arrested
as a sex offender who just assaulted a woman in his truck,” and
Raines was “still going to go kill herself” and was “still going to go
OD.”
Douglas testified that he continued driving home after Raines
allegedly jumped out because “that’s where [they] were going. [He]
was taking her home.” He said he stayed at his house until he “got
12 it together,” and then drove back to where Raines lay on the highway
to “pick her up” because he kept telling himself “she’s fine.” By then
law enforcement had responded to the scene, and Douglas said that
he knew that Raines was “dead because they ha[d] something
covering her body.” He testified that “[a]s soon as [he] saw that she
was dead,” he knew that he “had to tell [Brandon] something,” but
Douglas “couldn’t face the truth,” so he sent Brandon the text
messages referenced above. Douglas testified that it was a “mistake”
to lie to Brandon about what happened. Douglas also said that he
knew “immediately” that he would be arrested because Raines
“killed herself directly in front of a methadone clinic that [he] took
her to, where [he] had contact with a pack of cigarettes that [he] just
handed her with [his] fingerprints on it.” Douglas said that he then
“checked out” because he was in “shock,” and he “went on auto pilot.”
Douglas said he went to work because his “first concern was
getting [Raines’s] funeral paid for and that [meant he] needed
money.” Douglas said that after he worked several hours, he went to
his stepfather’s house to pick up his own car, and then went home.
13 He testified that he “spent intermittent times crying and just driving
around[,] because [he] couldn’t bear to be in the house for more than
a half an hour[,] because [he] was surrounded by all of [Raines,] and
[he] could not bear to look at [his] failure.” He said that he also went
outside to burn a “large pile” of “construction materials” and “extra
household garbage” he had stacked outside, because he “didn’t want
to leave trash in [his] yard for the next year while [he] was in jail.”
Douglas testified that he was “just trying to relax” as he waited for
law enforcement to find him, because he was “pretty distraught.” He
said he eventually smoked marijuana “to the point [he] passed out,”
and “about an hour later” law enforcement came to his house.
Douglas admitted on the stand that he lied to law enforcement when
he told them that he had not seen Raines since the night before and
when he said that he had not driven the truck in over a week.6
1. Douglas moved for directed verdict at the close of the State’s
evidence, arguing that the State’s case was entirely circumstantial,
6 These admissions are the basis for Douglas’s convictions for making
false statements to law enforcement, which Douglas does not challenge on appeal. 14 and the evidence failed to exclude the reasonable hypothesis that
Raines “committed suicide.” On appeal, Douglas contends that the
trial court abused its discretion by denying the motion pursuant to
OCGA § 24-14-6. He also argues that the evidence was not sufficient
as a matter of constitutional due process to support his convictions.
His contentions fail for the reasons that follow.
OCGA § 17-9-1 (a) governs motions for directed verdict at trial.
That statute provides:
Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.
OCGA § 17-9-1 (a).
However, on appeal, our review of the trial court’s denial of
Douglas’s motion for directed verdict “is not confined to the evidence
presented up until the close of the State’s case”; rather, we consider
“the entire evidence,” and “so long as all the evidence justifies the
15 conviction under the appropriate standard, no error is shown by the
denial of the motion for directed verdict.” Pittman v. State, 300 Ga.
894, 897 (1) (799 SE2d 215) (2017) (citation and punctuation
omitted).
(a) To the extent that Douglas challenges his convictions
because the evidence was constitutionally insufficient, his argument
fails. When we consider the sufficiency of the evidence as a matter
of constitutional due process, we consider the evidence “in the light
most favorable to the verdict,” and we “evaluate whether a rational
trier of fact could have found the defendant guilty beyond a
reasonable doubt of the crimes of which he was
convicted.” Davenport v. State, 309 Ga. 385, 388 (1) (846 SE2d 83)
(2020). In so doing, we “put aside any questions about conflicting
evidence, the credibility of witnesses, or the weight of the evidence,
leaving the resolution of such things to the discretion of the trier of
fact.” Id. (citation and punctuation omitted).
A rational jury could have found beyond a reasonable doubt
that Douglas murdered Raines and committed aggravated assault
16 against her based on the evidence admitted at trial, including: (1)
the eyewitness testimony that the driver of the truck was trying to
push the passenger out; (2) Douglas’s admission that he was the
driver of the truck that morning; (3) Douglas’s lies to Brandon and
law enforcement about what happened, which a jury could construe
as evidence of consciousness of guilt, see Sharkey v. State, 320 Ga.
477, 481 (2) (910 SE2d 216) (2024) (concluding that a jury could
construe text messages representing “an attempt to fabricate an
alibi” and other lies as evidence of consciousness of guilt); and (4)
Raines’s statements on Facebook and to her brother that she did not
want to die by suicide. Thus, while Douglas points to evidence,
including his own testimony, from which the jury could have reached
a contrary conclusion, the evidence was sufficient as a matter of
constitutional due process for the jury to find him guilty of murder
and aggravated assault. See Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Therefore, “[i]t follows
that the court did not err in denying [the appellant’s] motion for
directed verdict of acquittal made at the conclusion of the State’s
17 case-in-chief.” Pittman, 300 Ga. at 897-898 (1) (citation and
punctuation omitted).
(b) To the extent that Douglas challenges his convictions
pursuant to OCGA § 24-14-6, his contention also fails. OCGA § 24-
14-6 says that “[t]o warrant a conviction on circumstantial evidence,
the proved facts shall not only be consistent with the hypothesis of
guilt, but shall exclude every other reasonable hypothesis save that
of the guilt of the accused.” But this statute “only applies when the
State’s case against the defendant was wholly circumstantial.”
Torres v. State, 314 Ga. 838, 841 (1) (b) (878 SE2d 453) (2022)
(citation and punctuation omitted). “[I]f there is any direct evidence
presented by the State, the circumstantial evidence statute does not
apply in a sufficiency analysis.” Troutman v. State, 320 Ga. 489, 492
(1) (910 SE2d 173) (2024) (citation and punctuation omitted;
emphasis supplied).
“Eyewitness testimony based on the witness’s firsthand
observations of the crime is direct, not circumstantial, evidence.”
Bradley v. State, 318 Ga. 142, 144 (1) (897 SE2d 428) (2024) (quoting
18 Gittens v. State, 307 Ga. 841, 843 (1) n.2 (838 SE2d 888) (2020)). See
also Ga. Suggested Pattern Jury Instructions (Criminal) § 1.30.20
(“‘Direct evidence’ is the testimony of a person who asserts that he
or she has actual knowledge of a fact (such as an eyewitness) (such
as by personally observing or otherwise witnessing that fact).”);
Evidence, Black’s Law Dictionary (12th ed. 2024) (defining “direct
evidence” as “[e]vidence that is based on personal knowledge or
observation and that, if true, proves a fact without inference or
presumption”).
An eyewitness here testified that “[i]t looked like the driver
was trying to push the passenger out,”7 and Douglas admitted at
trial that he was the driver of the truck. These statements constitute
direct evidence. Because there was direct evidence, “the
circumstantial evidence statute does not apply,” Troutman, 320 Ga.
7 The fact that the witness observed the truck and its occupants for only
moments while the truck was travelling at a fast speed goes to the weight of the evidence. Whether a reasonable juror may find this testimony unreliable is irrelevant to this inquiry: “direct evidence is not converted into circumstantial evidence by a witness[’s] lack of credibility.” Jackson v. State, 310 Ga. 224, 228 (2) (b) (850 SE2d 131) (2020). 19 at 492 (1) (citation and punctuation omitted), and Douglas’s claim
on this basis fails.
2. Douglas argues that his trial counsel rendered
constitutionally ineffective assistance by pursuing an “all or
nothing” defense that Raines’s death was either murder or suicide,
instead of also requesting a jury charge on the lesser offense of
voluntary manslaughter.8 Douglas argues that a jury could infer
that he pushed Raines out of the truck because he was jealous that
Raines was seeing other men, resulting in an altercation in the truck
that day, and that trial counsel should have pursued this alternative
theory as well. This contention fails.
To prevail on a claim of ineffective assistance of counsel,
Douglas must establish that (1) his attorney’s performance was
deficient and (2) that deficient performance prejudiced Douglas’s
8 A person commits voluntary manslaughter when he commits an act
which would “otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person[.]” OCGA § 16-5-2 (a). 20 defense. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984).
To show that his lawyer’s performance was deficient, [the appellant] must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. This is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [the appellant] bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
Vasquez v. State, 306 Ga. 216, 233 (3) (a) (830 SE2d 143) (2019)
(citation and punctuation omitted).
To show prejudice, Douglas must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U. S. at 694 (III) (B). If Douglas fails to
satisfy either prong of Strickland, this Court need not examine the
21 other prong. See Jessie v. State, 294 Ga. 375, 377 (2) (754 SE2d 46)
(2014). Douglas fails to show that his trial counsel’s decision to
pursue an “all or nothing” strategy that Raines’s death was either
the result of a suicide or murder, but not voluntary manslaughter,
was deficient.
At the hearing on Douglas’s motion for new trial, Douglas’s
trial counsel testified that Douglas did not “ever waver” from the
assertion that Raines’s death “was a suicide,” which Douglas
remained “adamant” about from the “first time [trial counsel] met
him until the jury said their verdict,” including when Douglas took
the stand to testify at trial. Trial counsel further testified that he
was “unified” with Douglas as to strategy because, while there was
“slight evidence” of voluntary manslaughter, trial counsel did not
think it was enough to satisfy “the voluntary manslaughter
definition of incite[ment] of passion,” such that trial counsel “just
did not think that it was a path forward that [they] could go in this
particular case.” Trial counsel felt that the best defense was “an all
or nothing thing . . . . [I]t was either going to be a suicide or murder.”
22 Trial counsel also said that Douglas’s trial testimony “did not go
well,” and “anything that drew any attention to what [Douglas] said
. . . was going to be bad, whether it was consistent with what he said
or inconsistent.”
“Decisions about which defenses to present and which jury
charges to request are classic matters of trial strategy, and pursuit
of an all-or-nothing defense is generally a permissible strategy.”
Velasco v. State, 306 Ga. 888, 893 (3) (b) (834 SE2d 21) (2019). We
conclude that trial counsel was not deficient in pursuing the sole
defense that Raines’s death was a result of suicide and,
consequently, choosing not to request a jury charge on voluntary
manslaughter. Douglas consistently maintained that Raines “killed
herself” and that he was not jealous of Raines, and so testified at
trial. Moreover, Douglas points to no evidence that he had been
“seriously provoked” at the time of Raines’s death, and Douglas’s
defense that Raines “killed herself” was inconsistent with voluntary
manslaughter. Vann v. State, 311 Ga. 301, 305 (2) (857 SE2d 677)
(2021) (concluding no deficiency for failing to pursue a defense of
23 voluntary manslaughter in a murder case where counsel could have
reasonably concluded that the defense “was either unavailable or
weak because the evidence did not show, or only questionably
showed, that [the appellant] had been seriously provoked,” and
voluntary manslaughter would have been “inconsistent” with the
appellant’s defense). See also Velasco, 306 Ga. at 893 (3) (b)
(concluding no deficiency for failing to request a charge on voluntary
manslaughter in a murder case where the appellant maintained his
sole defense at all times, including in his trial testimony,
“particularly in light of the lack of evidence supporting a voluntary
manslaughter charge[,] and the general inconsistency between” the
appellant’s sole defense and voluntary manslaughter). Thus, trial
counsel was not professionally deficient by choosing to forgo the
defense of voluntary manslaughter in pursuit of the sole defense
that Raines’s death was a result of suicide. See Vann, 311 Ga. at 305
(2); Velasco, 306 Ga. at 893 (3) (b).
3. Finally, although Douglas does not raise the issue on appeal,
the trial court erred when it convicted Douglas of both malice
24 murder and aggravated assault of Raines, instead of merging the
latter into the former. “Even when no party raises a merger error, if
we note such an error, we have the discretion to correct it on direct
appeal.” Dixon v. State, 302 Ga. 691, 696 (4) (808 SE2d 696) (2017).
OCGA § 16-1-7 (a) affords a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense. OCGA § 16-1-7 (a) (1) prohibits a defendant from being convicted of more than one crime if one crime is included in another, and aggravated assault is included in the crime of malice murder when the former is established by proof of the same or less than all the facts[.]
Johnson v. State, 300 Ga. 665, 666 (2) (797 SE2d 903) (2017)
(citations and punctuation omitted).
Douglas was convicted of malice murder for pushing Raines out
of a moving truck with malice aforethought, and of aggravated
assault for pushing Raines out of said moving truck. Because the
aggravated assault conviction was established by the same facts as
the malice murder conviction, except that the malice murder
conviction also required proof of malice aforethought, the
aggravated assault conviction was included in the malice murder
25 conviction and merged into it. See Smith v. State, 301 Ga. 79, 80-81
(2) (799 SE2d 762) (2017) (concluding that an aggravated assault
conviction premised on a shooting with a rifle merged into a malice
murder conviction for the same shooting); Culpepper v. State, 289
Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011) (concluding that an
aggravated assault conviction premised on a stabbing with a knife
merged into a malice murder conviction premised on the same
stabbing). As such, we hereby vacate Douglas’s conviction and
sentence for aggravated assault.
Also, the trial court sentenced Douglas to serve five years for
making a false statement (Count 4),9 purportedly to run
consecutively to the aggravated assault sentence (Count 3). Because
we are vacating the aggravated assault conviction, the sentence on
Count 4 cannot run consecutively to the sentence for that
9 The trial court merged Count 5 into Count 4 for sentencing purposes at
the State’s request. We render no opinion on the propriety of that merger because the State does not raise the issue on cross-appeal, and any merger error benefitted Douglas. See Dixon, 302 Ga. at 696-697 (4) (explaining that this Court “[m]ost commonly” exercises its discretion to correct unraised merger errors which harm a defendant). 26 aggravated assault. As such, we hereby vacate the sentence
pertaining to Count 4, and remand for the trial court to resentence
Douglas on that count. See Ellington v. State, 314 Ga. 335, 346 (4)
(877 SE2d 221) (2022) (remanding for resentencing because the
sentence for a vacated conviction would have run consecutively with
two other sentences).
Judgment affirmed in part and vacated in part, and case remanded for resentencing. Peterson, C. J., and Bethel, Ellington, McMillian, Colvin, and Pinson, JJ., concur. Warren, P. J., concurs in judgment only in Division 1 (b).
Decided June 10, 2025.
Murder. Dade Superior Court. Before Judge House.
Jerry W. Chappell II, for appellant.
Clayton M. Fuller, District Attorney, Herbert E. Franklin,
Kevin J. Baugh, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.
Malcolm, Senior Assistant Attorney General, Grace G. Griffith,
Assistant Attorney General, for appellee.