319 Ga. 72 FINAL COPY
S24A0570. GRAY v. THE STATE.
MCMILLIAN, Justice.
LaVante Pierre Gray appeals from his convictions for felony
murder and possession of a firearm during the commission of a
felony in connection with the death of James Jones.1 As his sole
enumeration on appeal, Gray asserts that the trial court erred by
refusing to give his request for jury charges supporting the defense
of justification. Even assuming that the trial court erred, we
conclude that any error was harmless, so we affirm.
1 Jones died on September 1, 2017, and Gray was indicted by a DeKalb
County grand jury on January 4, 2018, on charges of malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), and possession of a firearm during commission of a felony (Count 4). Gray was tried before a jury in July 2021 and acquitted of Count 1 but found guilty of Counts 2, 3, and 4. The trial court sentenced Gray to serve life in prison on Count 2 and to serve five years in prison on Count 4, to run consecutively to Count 2. Count 3 was merged into Count 2 for sentencing. Gray filed a motion for new trial on July 30, 2021, which was amended by new counsel on March 15, 2023. The trial court denied Gray’s motion as amended on June 29, 2023, and Gray timely filed a notice of appeal. This appeal was docketed to the April 2024 term of this Court and submitted for a decision on the briefs. 1. The evidence at trial showed the following.2 On September
1, 2017, Jones and Gray were sitting in Gray’s car in Jones’s uncle’s
driveway when Jones realized his wallet was missing. Jones began
searching Gray’s car for his wallet, and at least one witness testified
that Gray assisted in the search. When the wallet could not be
located, Jones asked if Gray had taken the wallet and then
requested that Gray empty his pockets. Gray denied taking the
wallet but refused to empty his pockets. The two men began
discussing the matter, which turned into an argument.
During the argument, Gray tried to drive away, but Jones got
into the car to stop Gray from leaving. As one witness described it,
Gray “tried to pull off, but [Jones] wouldn’t allow him,” and another
testified that Gray was “trying to back out to leave” when Jones
jumped into the car. The two men “tussled” over the car key, which
2 Because this case considers whether an error in instructing the jury
was harmless, see Division 2 below, “we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.” Jones v. State, 317 Ga. 853, 856-57 (2) (896 SE2d 493) (2023) (citation and punctuation omitted).
2 was in the ignition, and when Jones grabbed the key it broke in half.
Jones retained the electronic key fob that allowed the car to function,
while the other half of the key remained stuck in the ignition.
The car’s engine cut off at that point, and the car rolled into the
street. The two men continued to argue. Jones told Gray that he was
not going anywhere until Jones got his wallet. While both men were
still in the car, Gray pulled a gun out of the driver’s side door pocket
and ordered Jones out of the car while demanding his key fob. Jones
exited the vehicle in response but did not give up the key fob. Gray’s
car would not restart after Jones got out of the car because Jones
had the key fob.
At some point, as the two men kept arguing, the matter turned
into a physical fight in the street, which did not last long and did not
result in any serious injuries, although Gray had a bloody lip and a
black eye. One witness testified that it was a “fair draw,” and
another witness testified that Jones got the better of Gray but he
said no one was really hurt, just Gray’s pride. While the evidence is
somewhat conflicting as to when this fight occurred, most of the
3 witnesses testified that the fight happened after Jones took the key
fob and was out of the car.
At some point after the car rolled into the street, Gray, along
with others, including Jones, pushed his vehicle out of the way of
other traffic and positioned the car to allow someone to give his car’s
battery a charge. Jones stood in the street by the passenger side of
Gray’s car, complaining about Gray’s actions in a cell phone call to
Jones’s cousin, and continued arguing with Gray, who stood by the
driver’s side door demanding his key fob.
Then Gray walked around the front of the car, still demanding
his key fob, and shot Jones approximately six times. Gray continued
shooting Jones even after Jones was on the ground. One witness said
that after the first two shots, Jones appeared to go toward Gray
before he “buckle[d] down onto the ground,” and another witness
heard Jones say, as he lay on the ground, “Don’t kill me.” That
witness further testified that Gray continued firing even after he
grabbed his key fob from Jones. After getting the key fob, Gray drove
away. The witnesses to the shooting all testified that Jones was
4 unarmed and that only Gray had a weapon. The witnesses denied
having seen anyone remove a weapon from Jones after the shooting.
Jones was taken to the hospital by ambulance, but he was
deceased by the time police arrived there to question him.
Investigators did not locate a weapon at the crime scene, nor did
they ever locate the weapon used to shoot Jones. Jones’s wallet was
found five days later in a shopping center parking lot, where he had
apparently dropped it. Gray was arrested over a month later in
Ohio.
The medical examiner testified that Jones was shot six times.
One of the wounds was “definitely fatal” and several others were
“very serious but potentially not life-threatening.” He said that the
wounds reflected that Jones may have been shot while standing,
although “an equally likely scenario” was that he was shot several
times after he fell to the ground. The medical examiner did not see
any soot or stippling around any of the wounds, so it was more likely
than not that Jones was shot from more than three feet away. Gray
did not testify at trial.
5 2. Gray argues on appeal that the trial court erred in refusing
to give the jury charges he requested on self-defense because slight
evidence was presented that he acted to prevent a forcible felony. At
trial, Gray sought a jury charge under OCGA § 16-3-21 (a), which
provides that
a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
OCGA § 16-3-21 (a) (emphasis supplied). A “forcible felony” is
defined as “any felony which involves the use or threat of physical
force or violence against any person.” OCGA § 16-1-3 (6).
“Whether the evidence presented is sufficient to authorize the
giving of a [jury] charge is a question of law,” McClure v. State, 306
Ga.
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319 Ga. 72 FINAL COPY
S24A0570. GRAY v. THE STATE.
MCMILLIAN, Justice.
LaVante Pierre Gray appeals from his convictions for felony
murder and possession of a firearm during the commission of a
felony in connection with the death of James Jones.1 As his sole
enumeration on appeal, Gray asserts that the trial court erred by
refusing to give his request for jury charges supporting the defense
of justification. Even assuming that the trial court erred, we
conclude that any error was harmless, so we affirm.
1 Jones died on September 1, 2017, and Gray was indicted by a DeKalb
County grand jury on January 4, 2018, on charges of malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), and possession of a firearm during commission of a felony (Count 4). Gray was tried before a jury in July 2021 and acquitted of Count 1 but found guilty of Counts 2, 3, and 4. The trial court sentenced Gray to serve life in prison on Count 2 and to serve five years in prison on Count 4, to run consecutively to Count 2. Count 3 was merged into Count 2 for sentencing. Gray filed a motion for new trial on July 30, 2021, which was amended by new counsel on March 15, 2023. The trial court denied Gray’s motion as amended on June 29, 2023, and Gray timely filed a notice of appeal. This appeal was docketed to the April 2024 term of this Court and submitted for a decision on the briefs. 1. The evidence at trial showed the following.2 On September
1, 2017, Jones and Gray were sitting in Gray’s car in Jones’s uncle’s
driveway when Jones realized his wallet was missing. Jones began
searching Gray’s car for his wallet, and at least one witness testified
that Gray assisted in the search. When the wallet could not be
located, Jones asked if Gray had taken the wallet and then
requested that Gray empty his pockets. Gray denied taking the
wallet but refused to empty his pockets. The two men began
discussing the matter, which turned into an argument.
During the argument, Gray tried to drive away, but Jones got
into the car to stop Gray from leaving. As one witness described it,
Gray “tried to pull off, but [Jones] wouldn’t allow him,” and another
testified that Gray was “trying to back out to leave” when Jones
jumped into the car. The two men “tussled” over the car key, which
2 Because this case considers whether an error in instructing the jury
was harmless, see Division 2 below, “we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.” Jones v. State, 317 Ga. 853, 856-57 (2) (896 SE2d 493) (2023) (citation and punctuation omitted).
2 was in the ignition, and when Jones grabbed the key it broke in half.
Jones retained the electronic key fob that allowed the car to function,
while the other half of the key remained stuck in the ignition.
The car’s engine cut off at that point, and the car rolled into the
street. The two men continued to argue. Jones told Gray that he was
not going anywhere until Jones got his wallet. While both men were
still in the car, Gray pulled a gun out of the driver’s side door pocket
and ordered Jones out of the car while demanding his key fob. Jones
exited the vehicle in response but did not give up the key fob. Gray’s
car would not restart after Jones got out of the car because Jones
had the key fob.
At some point, as the two men kept arguing, the matter turned
into a physical fight in the street, which did not last long and did not
result in any serious injuries, although Gray had a bloody lip and a
black eye. One witness testified that it was a “fair draw,” and
another witness testified that Jones got the better of Gray but he
said no one was really hurt, just Gray’s pride. While the evidence is
somewhat conflicting as to when this fight occurred, most of the
3 witnesses testified that the fight happened after Jones took the key
fob and was out of the car.
At some point after the car rolled into the street, Gray, along
with others, including Jones, pushed his vehicle out of the way of
other traffic and positioned the car to allow someone to give his car’s
battery a charge. Jones stood in the street by the passenger side of
Gray’s car, complaining about Gray’s actions in a cell phone call to
Jones’s cousin, and continued arguing with Gray, who stood by the
driver’s side door demanding his key fob.
Then Gray walked around the front of the car, still demanding
his key fob, and shot Jones approximately six times. Gray continued
shooting Jones even after Jones was on the ground. One witness said
that after the first two shots, Jones appeared to go toward Gray
before he “buckle[d] down onto the ground,” and another witness
heard Jones say, as he lay on the ground, “Don’t kill me.” That
witness further testified that Gray continued firing even after he
grabbed his key fob from Jones. After getting the key fob, Gray drove
away. The witnesses to the shooting all testified that Jones was
4 unarmed and that only Gray had a weapon. The witnesses denied
having seen anyone remove a weapon from Jones after the shooting.
Jones was taken to the hospital by ambulance, but he was
deceased by the time police arrived there to question him.
Investigators did not locate a weapon at the crime scene, nor did
they ever locate the weapon used to shoot Jones. Jones’s wallet was
found five days later in a shopping center parking lot, where he had
apparently dropped it. Gray was arrested over a month later in
Ohio.
The medical examiner testified that Jones was shot six times.
One of the wounds was “definitely fatal” and several others were
“very serious but potentially not life-threatening.” He said that the
wounds reflected that Jones may have been shot while standing,
although “an equally likely scenario” was that he was shot several
times after he fell to the ground. The medical examiner did not see
any soot or stippling around any of the wounds, so it was more likely
than not that Jones was shot from more than three feet away. Gray
did not testify at trial.
5 2. Gray argues on appeal that the trial court erred in refusing
to give the jury charges he requested on self-defense because slight
evidence was presented that he acted to prevent a forcible felony. At
trial, Gray sought a jury charge under OCGA § 16-3-21 (a), which
provides that
a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
OCGA § 16-3-21 (a) (emphasis supplied). A “forcible felony” is
defined as “any felony which involves the use or threat of physical
force or violence against any person.” OCGA § 16-1-3 (6).
“Whether the evidence presented is sufficient to authorize the
giving of a [jury] charge is a question of law,” McClure v. State, 306
Ga. 856, 863 (1) (834 SE2d 96) (2019) (citation and punctuation
omitted), which this Court reviews de novo. See Reese v. State, 314
Ga. 871, 880 (2) (880 SE2d 117) (2022). “[T]o authorize a jury
instruction[,] there need only be produced at trial slight evidence
6 supporting the theory of the charge.” State v. Newman, 305 Ga. 792,
796-97 (2) (a) (827 SE2d 678) (2019) (citation and punctuation
omitted). But “[e]ven when we find error in a jury charge, we will
not reverse when the error is harmless.” Jones v. State, 302 Ga. 892,
897 (3) (810 SE2d 140) (2018). See also Hodges v. State, 302 Ga. 564,
567 (3) (807 SE2d 856) (2017). “The test for determining whether a
nonconstitutional instructional error was harmless is whether it is
highly probable that the error did not contribute to the verdict.”
Jones v. State, 310 Ga. 886, 889 (2) (855 SE2d 573) (2021) (citation
and punctuation omitted).
Prior to trial, Gray submitted written requests for jury charges
on self-defense under OCGA § 16-3-21 (a), false imprisonment, and
robbery. During the charge conference, his counsel asserted that the
charges were authorized because at the time Jones was shot, he was
engaged in committing two “ongoing” forcible felonies—robbery and
false imprisonment—and that Gray shot Jones to stop the felonies
from continuing. As for robbery, defense counsel argued that when
Jones suddenly snatched Gray’s key fob from his immediate
7 presence, a robbery occurred and continued “as long as the parties
[were] out there, and [Gray was] trying to reclaim the key.” Gray
also asserted that Jones was committing false imprisonment when
Jones told Gray that he could not leave until the wallet was
returned, then “beat” Gray, and stopped him from leaving in his car.
Defense counsel asserted that this evidence showed that Gray was
being detained against his will and that false imprisonment under
these circumstances constituted a forcible felony.
After hearing argument, the trial court denied Gray’s request
for a jury charge on self-defense based on the forcible felonies of
robbery or false imprisonment. The trial court later denied Gray’s
motion for new trial on this ground.
Assuming without deciding that the trial court erred in failing
to provide a charge on self-defense to prevent a forcible felony, we
conclude that it is highly probable that any error did not contribute
to the verdict. The evidence against Gray was strong. Multiple
witnesses saw Gray argue with Jones over whether Gray had taken
Jones’s wallet. These witnesses also saw Gray fight with Jones and,
8 after the passage of some time, shoot Jones outside the car while
demanding the key fob; Gray then took the key fob and drove away.
One witness testified that Gray shot Jones twice, then stood over
Jones saying “give me my key,” while Jones said only, “Don’t kill
me.” This witness said that Gray then grabbed the key fob and shot
Jones “like four or five more times.” None of the witnesses saw Jones
with a gun, nor does Gray claim that Jones had a gun.
Instead, Gray claims that he was justified in shooting Jones to
prevent Jones from committing two forcible felonies—robbery by
sudden snatching and false imprisonment. But the evidence
supporting this defense was weak because any robbery had been
completed at the time of the shooting3 and the evidence did not
support that deadly force was reasonably necessary to prevent the
alleged false imprisonment. Under Georgia law, “[a] person commits
the offense of robbery when, with intent to commit theft, he takes
property of another from the person or the immediate presence of
3 Gray does not contend that Jones took the key fob to steal his car, but
rather to prevent Gray from leaving until the wallet was returned. 9 another . . . [b]y sudden snatching.” OCGA § 16-8-40 (a) (3). Gray
asserts that Jones committed this crime by snatching his key fob
from his immediate presence, and further argued that the robbery
was continuing “as long as the parties [were] out there, and [Gray
was] trying to reclaim the key.” However, this Court has held that
the “taking” element of robbery “is not a continuing transaction
which ends only when the defendant leaves the presence of the
victim. Instead, the taking is complete once control of the property
is transferred involuntarily from the victim to the defendant, even
if only briefly.” Harrington v. State, 300 Ga. 574, 577 (2) (a) (797
SE2d 107) (2017) (citation and punctuation omitted). See also Fox v.
State, 289 Ga. 34, 36 (1) (b) (709 SE2d 202) (2011); James v. State,
232 Ga. 834, 835 (209 SE2d 176) (1974) (“It is not required that the
property taken be permanently appropriated.”).
Therefore, even assuming, without deciding, that Jones’s act of
snatching the electronic portion of Gray’s key out of the car’s ignition
constituted the felony of robbery by sudden snatching and that such
a crime is a forcible felony, that crime was complete once Jones took
10 control of the key fob such that a reasonable jury would likely
conclude that the subsequent shooting (which took place after a later
fight between Gray and Jones and after Gray moved and attempted
to re-start his car) was not done to prevent the robbery. See OCGA
§ 16-3-21 (a) (justification if defendant reasonably believes that force
required “to prevent the commission of a forcible felony”). Cf.
Robinson v. State, 298 Ga. 455, 462 (5) (782 SE2d 657) (2016) (jury
charge on self-defense in prevention of forcible felony addressing
shooting death of defendant’s partner in crime by a third party was
appropriate because the attempted robbery of third party was an
ongoing event at the time of the shooting).
Gray also asserts that Jones was engaged in the ongoing crime
of false imprisonment at the time of the shooting. Under OCGA § 16-
5-41 (a), “[a] person commits the offense of false imprisonment when,
in violation of the personal liberty of another, he arrests, confines,
or detains such person without legal authority.” Gray argues that
the crime of false imprisonment was a continuing forcible felony in
this case because Jones broke and took Gray’s key fob “for the
11 specific purpose of preventing him from leaving, thereafter
threatened repeatedly that [Gray] was not going anywhere, and
finally engaged in a fistfight with [Gray] causing violent injury.”
Even if false imprisonment under these circumstances could be
considered a forcible felony,4 Gray was permitted to use deadly force
“only if he . . . reasonably believe[d] that such force [was] necessary
. . . to prevent the commission of a forcible felony.” OCGA § 16-3-21
(a). The evidence that the shooting was necessary was weak. There
was no evidence that Gray was in any physical danger from being
unable to leave the scene in his car, and the evidence supported that
Gray shot Jones, not because he reasonably believed that the
4 Although false imprisonment is a felony, OCGA § 16-5-41 (b), nothing
in the text of the false imprisonment statute expressly requires the use or threat of physical force or violence against someone to commit the offense. Thus, it is not clear that false imprisonment meets the statutory definition of a forcible felony even if the false imprisonment is accompanied by threats. And Gray has not pointed us to, nor have we found, any authority where false imprisonment has been defined, or treated based on the evidence presented, as a forcible felony under Georgia law. Cf. Patel v. State, 278 Ga. 403, 407-08 (6) (603 SE2d 237) (2004) (no error in limiting the jury’s consideration of the justification defense to the situation in which an attack was directed at the person of defendant and excluding a charge of self-defense based on burglary as a forcible felony because “burglary is not ipso facto a forcible felony” as it does not require the use or threat of physical force or violence against any person). 12 shooting was necessary to free himself, but because he was angry
that Jones did not give up the key fob. Jones was unarmed, yet Gray
shot him at least six times, and he kept shooting even after Jones
was on the ground. Gray then left the scene and was later found in
another state. See State v. Orr, 305 Ga. 729, 741 (4) (a) (827 SE2d
892) (2019) (“[i]t is . . . universally conceded that the fact of an
accused’s flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related conduct [is]
admissible as evidence of consciousness of guilt, and thus of guilt
itself”) (citation and punctuation omitted).
In other cases where the evidence of guilt was strong and the
evidence supporting a justification defense was weak, we have
concluded that it was highly probable that the failure to give a jury
instruction on justification did not affect the verdict and thus
constituted harmless error. See Jones, 310 Ga. at 889 (2) (harmless
error to fail to charge on defense of self or third person because
“evidence supporting a charge on defense of self or a third person”
“was meager at best”). See also Reese v. State, 317 Ga. 189, 197 (2)
13 (891 SE2d 835) (2023) (where evidence supporting self-defense
theory was weak, failure to give justification instruction likely did
not affect the outcome of the trial); Munn v. State, 313 Ga. 716, 723
(3) (873 SE2d 166) (2022) (defendant’s substantial rights were not
affected by not instructing the jury on justification when evidence in
support of the defense was weak). Just so here. Accordingly, Gray is
not entitled to a new trial on this ground.
Judgment affirmed. All the Justices concur.
14 Decided May 14, 2024.
Murder. DeKalb Superior Court. Before Judge LaTisha Dear
Jackson.
Gerard B. Kleinrock, for appellant.
Sherry Boston, District Attorney, Shannon E. Hodder, Lenny I.
Krick, Deborah D. Wellborn, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Beth A. Burton, Deputy
Attorney General, Meghan H. Hill, Clint C. Malcolm, Senior
Assistant Attorneys General, Sarah J. Thomas, Assistant Attorney
General, for appellee.