Russell v. State

813 S.E.2d 380
CourtSupreme Court of Georgia
DecidedApril 16, 2018
DocketS18A0091
StatusPublished
Cited by9 cases

This text of 813 S.E.2d 380 (Russell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. State, 813 S.E.2d 380 (Ga. 2018).

Opinion

BENHAM, Justice.

Appellant Jermorris Russell seeks appellate review of his convictions for the shooting death of Quintavian Johnson and the aggravated assault of Dayveian Gibson.1 1. 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 *383the 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." Appellant 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, 751 S.E.2d 354 ; 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).

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

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Bluebook (online)
813 S.E.2d 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-state-ga-2018.