319 Ga. 402 FINAL COPY
S24A0025. ZAYAS v. THE STATE.
COLVIN, Justice.
Appellant Christopher Vargas Zayas appeals his convictions
for malice murder and a related crime in connection with the
shooting death of his girlfriend, Carly Andrews.1 On appeal,
1 The shooting occurred on September 6, 2018. On September 24, 2018,
a Hall County grand jury indicted Appellant for malice murder (Count 1), felony murder (Count 3), aggravated assault, family violence (Count 4), possession of marijuana with intent to distribute (Count 6), and three counts of possession of a firearm during the commission of a felony (Counts 2, 5, and 7), which were predicated on the crimes alleged in Counts 1, 4, and 6, respectively. Appellant moved to sever Counts 6 and 7 for trial, and the court granted the motion. Appellant was then tried on Counts 1 through 5 from November 8 through 18, 2021, and the jury found him guilty on all five counts. The jury also found Appellant not guilty of involuntary manslaughter as a lesser included offense of either malice murder or felony murder predicated on aggravated assault. Appellant was sentenced to life in prison with the possibility of parole for Count 1 plus five years consecutive for Count 2. The trial court merged Count 4 with Count 1 and Count 5 with Count 2 for sentencing purposes and vacated Count 3 by operation of law. Counts 6 and 7 were then transferred to the dead docket. Appellant timely filed a motion for new trial on December 20, 2021, and amended the motion through new counsel on June 30, 2022. After holding a hearing on the amended motion for new trial on July 6, 2022, the trial court denied the motion on December 30, 2022. Appellant then filed a notice of appeal directed to this Court. But we dismissed the appeal, noting that the case was still pending in the trial court because Counts 6 and 7 had been transferred to the dead docket. After the State nolle prossed Counts 6 and 7, the trial court entered a final disposition of the case Appellant argues that the circumstantial evidence at trial was
insufficient under OCGA § 24-14-6 to exclude the alternative
hypothesis that the pistol discharged accidentally as Andrews
grabbed it. Appellant also argues that trial counsel was ineffective
for failing to move to suppress statements Appellant made to
investigators at the police station before he received Miranda
warnings.2 Finally, Appellant asserts several enumerations of trial
court error and ineffective assistance of counsel in connection with
the trial court’s jury charge on unlawful act involuntary
manslaughter. As explained below, we conclude that the
circumstantial evidence authorized the jury to reject Appellant’s
alternative hypothesis as unreasonable, that trial counsel was not
deficient for failing to seek to suppress Appellant’s statements to
investigators at the police station, and that Appellant suffered no
prejudice from any instructional error. Accordingly, we affirm.
on April 12, 2023. Appellant then timely filed an amended notice of appeal. The appeal was assigned to this Court’s term beginning in December 2023 and submitted for a decision on the briefs. 2 See Miranda v. Arizona, 384 U. S. 436, 444-445 (86 SCt 1602, 16 LE2d
694) (1966). 2 1. The trial evidence showed the following.3 In September
2018, Appellant and Andrews lived together in an apartment in
Gainesville, Georgia. Danielle Gosnell, who lived in an apartment
on the same floor, testified that Appellant and Andrews frequently
engaged in loud arguments and that, on the day of the shooting, she
heard Appellant and Andrews arguing “so loud it sounded like they
were arguing in [Gosnell’s] apartment.” Gosnell testified that she
heard a gunshot, and that, “right before the gunshot, like
immediately before,” Andrews “screamed really loud.” Gosnell said
that she dialed 911 and then went out into the hallway, where she
saw Appellant outside his apartment screaming for help and saying
that it was an accident and that Andrews shot herself.
Officer Justin Seabolt, who was the first officer on the scene,
testified that, when he entered through Appellant’s open apartment
3 Because this case involves questions of harmless error and prejudice
under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), “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.” Moore v. State, 315 Ga. 263, 264 (1) n.2 (882 SE2d 227) (2022) (citation and punctuation omitted). 3 doorway, Appellant was leaning over Andrews and either holding
pressure on the wound or doing CPR. Officer Seabolt further
testified that he observed a pistol on the dining room table with the
slide locked to the rear and no magazine inserted.
Officer Seabolt’s body camera footage, which was played for the
jury, and photographs from the crime scene corroborated Officer
Seabolt’s testimony. The body camera footage further showed that
officers asked Appellant to exit the apartment and stand on a
landing outside, where he gave an account of the incident prior to
being handcuffed. In his statement, Appellant reported that the gun
was a 9mm Baby Desert Eagle, that Andrews had been helping him
clean the gun, and that, after the magazine had been removed,
Andrews grabbed the gun and held it so it was pointed toward
herself. Although Appellant initially stated that Andrews had pulled
the trigger, he later said that the gun fired when Andrews cocked it.
Investigator Stephen Johnson, who was assigned to the case,
testified that, although Appellant was not under arrest, and
contrary to standard operating procedures, Appellant was
4 handcuffed after giving his statement to police officers at the scene,
and Appellant was then transported in a marked patrol car to the
Gainesville Police Department for an interview. Investigator
Johnson testified that he interviewed Appellant for about an hour
and a half over a seven-hour period at the police station.
The police-station interview, which was video recorded and
played for the jury, was divided into three parts separated by breaks
in questioning. Investigator Johnson, who was accompanied by
another investigator, began the first part of the police-station
interview by apologizing to Appellant for how he had been
transported to the police department and telling him that he was
not under arrest and was free to leave at any time. Investigator
Johnson then reiterated to Appellant that he was not under arrest
before conducting the second part of the interview. At the beginning
of the third and final part of the interview, Investigator Johnson
advised Appellant of his Miranda rights for the first time, and
Appellant signed a written waiver of his rights.
The recordings show that, throughout the interview, Appellant
5 consistently claimed that he had been cleaning the gun and had
given it to Andrews because she wanted to help him. But he gave
several accounts of how events unfolded from that point forward.
During the first part of the interview, Appellant said that Andrews
grabbed the gun out of his hands, pointed it at herself, and tried to
“cock it back” to see if a bullet was in the chamber. But Appellant
said she did not have enough force to do so, and, when she let go, the
gun went “boom” and fired at her. Appellant further said that the
magazine was on the table when the gun fired and that he put the
gun back on the table after the shooting.
The recording shows that Investigator Johnson asked
Appellant if he would be willing to have his hands tested for gunshot
residue, and Appellant agreed to do so. The investigators then left
the room, at which point Appellant looked at his right hand and then
spent approximately 30 seconds wiping his right hand on his shorts,
licking his hand and wiping it on his shorts, and then using the
6 bottom portion of his shirt to wipe his hand.4
During the second part of the interview, Appellant said that,
before the shooting, he had taken the magazine out of the gun,
cleared the chamber, put the magazine back in the gun, charged it,
and then given it to Andrews. At different points, Appellant said
both that the slide was open and that the slide was closed when
Andrews took the gun from him. Appellant continued to claim that
he put the gun on the table after the shooting, but he denied
manipulating the gun in any other way. Appellant also said that
Andrews was pretty far away from him when the gun fired.
During this final portion of questioning, after waiving his
Miranda rights, Appellant said that the gun’s slide was closed when
he put it on the table after the shooting, and that he did not open
the slide after the shooting. Appellant also gave several different
accounts of how Andrews had been shot, claiming that both he and
Andrews were holding the gun when it fired, then that the gun fired
4Appellant’s hands were later swabbed for purposes of conducting a gunshot residue test, and, as noted below, the test results were positive for the presence of gunshot primer residue. 7 while he was holding it after Andrews gave it back to him, then that
the gun fired when he inserted a cleaning rod into the barrel, then
that the gun went off without him pulling the trigger when he put it
down on the table, and finally that the gun fired when he pulled the
hammer back and let it go. When told that the investigators were
just trying to understand why Appellant had shot Andrews,
Appellant responded, “It was an accident. I didn’t shot [sic] Carly
’cause I want to. The gun went off on the table, and it hit her. That’s
it. I never pointed it at her.” He further admitted that “I shot her,
okay.” Investigator Johnson then informed Appellant that Andrews
had died, and the recording shows Appellant appearing to cry for
some time, although Investigator Johnson testified that he did not
see any actual tears.
The medical examiner testified that the gunshot wound to
Andrews’s chest would have been “rapidly fatal,” killing her in
“seconds to minutes.” He testified that the bullet entered Andrews’s
chest at a slightly downward angle, consistent with her bending over
while standing, and that the bullet had traveled through her heart
8 and lung before exiting through her back.
A crime scene specialist found a bullet defect in the wall above
the television and recovered the bullet on the floor behind the
drywall. She testified that forward blood spatter indicated that
Andrews was near the television stand when she was shot, that
impact spatter from Andrews falling down was found on the
television stand, and that a laser reconstruction of the bullet’s
trajectory indicated that the bullet had traveled from the direction
of the dining room table, which was several feet away from the
television stand. On the table, officers found the Baby Desert Eagle
with blood on it and the slide locked to the rear, as well as the gun’s
magazine, a live cartridge, and a gun cleaning brush. A spent shell
casing was recovered from the floor “back and to the right” of the
table. The crime scene specialist observed transfer blood stains on
the wall next to the table, as well as on the apartment’s front door.
The State’s gunshot residue expert testified that, when a pistol
is fired, gunshot primer residue is ejected through the barrel, as well
as through the ejector portion of the slide. He testified that both
9 Appellant’s and Andrews’s hands tested positive for the presence of
gunshot primer residue, with Andrews having a higher level of such
particles on her hands. He further testified that gunshot primer
residue is found on victims in 80 to 90 percent of shootings. And he
said that licking hands or rubbing them on any surface would cause
a loss of gunshot residue particles.
The State’s firearms examiner testified that the Baby Desert
Eagle was a double-action, single-action semiautomatic pistol with
an exposed hammer. She testified that the pistol’s slide would be
locked open only if the last round was fired with the magazine
inserted or if the slide lock was manually engaged. Although she
discovered some dirt and rust on the gun, she opined that the gun
was “operating as it was designed” after test firing the gun,
performing a “check function test,” and performing “bump-off” and
“push-off” tests, which revealed no detonations when force was
applied to the hammer. She testified that she had not formally
performed an “abuse test,” which she described as a test used to
determine if a gun can fire without the trigger being pulled. But she
10 said that, during her testing, she had done everything an “abuse
test” would require for a gun like the Baby Desert Eagle. When
asked on cross-examination, she further testified that it might be
possible for the slide lock to be manually engaged following a
discharge while the slide was cycling.
The defense’s expert on firearms, ballistics, and gunpowder
residue reviewed the report prepared by the State’s firearms
examiner and testified, based on that report, that the Baby Desert
Eagle was not functioning as designed because de-cocking the gun
with the safety caused light firing-pin indentations on cartridge
primers, indicating that an accidental discharge was possible. He
testified that the gun had been poorly maintained because there was
evidence of corrosion and rust. He further said that he found it
significant that Andrews had more gunshot primer residue on her
hands than Appellant had on his hands because gunshot primer
residue only comes out of the ejection port, not the barrel, and it
travels a couple feet at most. In addition, he opined that, if someone
were grabbing the gun and placing upward pressure on the slide lock
11 while the gun fired, the slide lock could be engaged, preventing the
slide from moving forward.
2. On appeal, Appellant challenges the sufficiency of the trial
evidence under OCGA § 24-14-6, which provides 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.” Appellant argues that the State’s purely circumstantial
evidence that Appellant shot Andrews with malice aforethought was
insufficient to exclude the reasonable hypothesis that the gun
discharged accidentally as Andrews reached toward the desk and
grabbed the gun perpendicular to her body. We disagree.
“[W]here the jury is authorized to find that the evidence,
though circumstantial, was sufficient to exclude every reasonable
hypothesis save that of the guilt of the accused, we will not disturb
that finding unless it is insupportable as a matter of law.” Perrault
v. State, 316 Ga. 241, 246 (1) (887 SE2d 279) (2023) (citation and
punctuation omitted). Here, the trial evidence was more than
12 sufficient to authorize the jury to reject Appellant’s alternative
hypothesis as unreasonable. Appellant admitted to investigators
that he shot Andrews. The forensic evidence and expert testimony
supported jury findings that Andrews was shot from the dining room
table while she was standing several feet away near the television
stand. And Gosnell testified that the gunshot occurred during a loud
argument between Appellant and Andrews and immediately after
Andrews “screamed really loud.” Evidence showing that officers
found the gun on the table with the magazine removed and the slide
locked to the rear — despite evidence that the slide would be locked
back only if the slide lock was manually engaged or the last round
was fired with the magazine inserted — supported an inference that
Appellant manipulated the gun after the shooting in an effort to
make the shooting look like it had occurred accidentally in the
process of cleaning the gun. The video recording of Appellant’s
interview at the police department, which showed Appellant licking
and wiping his right hand after being asked to submit to a gunshot
residue test, further supported a jury inference that Appellant was
13 attempting to cover up his involvement in shooting Andrews.
Finally, the jury was authorized to reject Appellant’s accidental-
shooting hypothesis as unreasonable based on Appellant’s multiple,
inconsistent accounts of how the shooting had occurred. See, e.g.,
Williams v. State, 312 Ga. 386, 390-391 (1) (a) (863 SE2d 44) (2021)
(jury was authorized to reject as unreasonable the alternative
hypothesis that the victim’s death was an accidental drowning
where the trial evidence supported “infer[ences] that [the appellant]
attempted to conceal the manner of [the victim’s] death and initially
lied to the paramedics and police because he had committed the
murder”); Davenport v. State, 309 Ga. 385, 388-389 (1) (846 SE2d
83) (2020) (jury was authorized to find unreasonable the alternative
hypothesis that the victim shot herself where “evidence suggested
that the crime scene had been staged,” investigators “found gunshot
primer residue on [the appellant’s] clothes,” and the appellant “gave
inconsistent stories to police”). Cf. Perrault, 316 Ga. at 246-247 (1)
(the evidence was sufficient for the jury to reject an alternative
suicide hypothesis as unreasonable where “the magazine was out of
14 the gun and placed on the opposite side of [the victim’s] body from
the gun”).
Appellant highlights inconsistencies in the evidence, as well as
evidence that was consistent with his alternative hypothesis. But “it
is axiomatic that resolving evidentiary conflicts and assessing
witness credibility are within the exclusive province of the jury.”
Perrault, 316 Ga. at 247 (1) (citation and punctuation omitted). “And
it is the jury’s role to determine whether an alternative hypothesis
raised by the defendant is reasonable.” Id. (citation and punctuation
omitted). Accordingly, this claim fails.
3. Appellant argues that trial counsel was constitutionally
ineffective for failing to move to suppress the statements Appellant
made to investigators at the police station before he received
Miranda warnings. We conclude, however, that Appellant has failed
to establish deficient performance.
To prevail on an ineffective-assistance-of-counsel claim, a
defendant must show deficient performance by trial counsel and
resulting prejudice. See Strickland v. Washington, 466 U. S. 668,
15 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “Proving deficient
performance requires a defendant to show that no reasonable lawyer
would have done what his lawyer did or would have failed to do what
his lawyer did not.” Payne v. State, 318 Ga. 249, 258 (5) (897 SE2d
809) (2024) (citation and punctuation omitted). “To show prejudice,
a defendant must show that there is a reasonable probability that,
but for counsel’s deficiency, the result of the trial would have been
different.” Id. (citation and punctuation omitted). If a defendant fails
to establish either deficient performance or prejudice, we need not
address the other part of the Strickland test. See id.
At the motion-for-new-trial hearing, trial counsel testified that
it was “arguably correct” that the only way to present the accident
defense without having Appellant testify was to allow admission of
Appellant’s statements at the police station. According to trial
counsel, this was because, although the body camera footage from
the scene captured some comments Appellant made about the
events, “the in-custody statement certainly fleshed out the exact
sequence of events in this case from his standpoint.” Trial counsel
16 further testified that “[t]he decision not to move to suppress a
statement in this particular case was because” Appellant was
repeatedly told he was not under arrest during his police-station
interview, and he did not think a motion to suppress would be
granted.
In ruling on Appellant’s motion for new trial, the trial court
concluded that Appellant had shown neither deficient performance
nor prejudice for this claim. The trial court noted that investigators
had repeatedly told Appellant that he was not under arrest during
the police-station interview and that the court “would have been
unlikely to suppress” Appellant’s statements if he had filed a motion
to suppress. The court further concluded that trial counsel had
pursued a reasonable defense strategy in choosing not to oppose
admission of Appellant’s statements because those statements
allowed Appellant to introduce the defense theory of accident
without Appellant having to testify at trial.
Here, Appellant has not shown that “no reasonable lawyer
would have” foregone a motion to suppress the portion of Appellant’s
17 interview at the police station before he received Miranda warnings.
Payne, 318 Ga. at 258 (5) (citation and punctuation omitted). As trial
counsel testified at the motion-for-new-trial hearing, admitting
Appellant’s police-station interview allowed counsel to introduce
Appellant’s version of events in more detail and in his own words
without Appellant having to testify and be subjected to cross-
examination. And a review of the video recording of the police-
station interview shows that, prior to receiving Miranda warnings,
Appellant was indeed able to elaborate on the cursory description of
events that he had given to officers on the scene. See Winters v.
State, 303 Ga. 127, 131 (II) (A) (810 SE2d 496) (2018) (no deficient
performance in consenting to the introduction of the appellant’s
“previously-suppressed” statement to police officers where doing so
allowed counsel “to present [the appellant’s] defense to the jury, in
[her] own words, without subjecting her to cross-examination by the
State”).
Moreover, there was little downside to allowing the State to
admit the statements Appellant made at the police station before
18 receiving Miranda warnings. Appellant’s story in that portion of the
interview was consistent with the account he gave to police officers
at the scene, as he continued to maintain that Andrews was helping
him clean the gun and that it fired when Andrews took the gun from
him and “cock[ed] it.” And while Appellant’s statements in that
portion of the police-station interview revealed some inconsistencies
in his story, the inconsistencies were minor compared to those
present in the admissible statements Appellant made to
investigators after waiving his Miranda rights.5 As described above,
after waiving his Miranda rights, Appellant gave several different
accounts of how the gun fired that conflicted with one another in
significant respects. See Harris v. State, 310 Ga. 372, 387-388 (4) (c)
(850 SE2d 77) (2020) (holding that trial counsel made a reasonable
strategic decision not to seek suppression of the appellant’s police
5 Appellant asserts on appeal that “the course of this interview was ripe
for challenge as an improper ‘two-step’ (i.e., question first, advise later) interrogation.” (Emphasis supplied.) But he did not argue below and makes no argument here that a “two-step interrogation technique was used in a calculated way to undermine the Miranda warning,” State v. Abbott, 303 Ga. 297, 301, 304 (3) (812 SE2d 225) (2018) (citation and punctuation omitted), so we express no opinion on that matter. 19 interview because the interview “tended to support [the appellant’s]
overall theory of the case” and “the downside of forgoing an attempt
to suppress the . . . interview was limited, considering that much of
this evidence was cumulative of other evidence admitted at trial”);
Jones v. State, 300 Ga. 543, 546-547 (2) (b) (796 SE2d 659) (2017)
(no deficient performance where, among other things, damaging
evidence from the recordings was cumulative of other evidence, and
allowing the statements to be played allowed counsel to present a
defense without having the appellant testify).
Appellant highlights trial counsel’s testimony at the motion-
for-new-trial hearing that he did not believe Appellant was in
custody for the initial portion of the interview at the police station
and therefore did not believe a motion to suppress would succeed.
Appellant contends that he was in fact in custody and that the law
did not support trial counsel’s assessment of how likely a motion to
suppress was to succeed. And for that reason, Appellant argues that
trial counsel’s strategy in choosing not to file a motion to suppress
was objectively unreasonable.
20 But even assuming that trial counsel’s conclusion that
Appellant was not in custody was based on a misunderstanding of
the law, we have made clear that “decisions of counsel made based
on a misunderstanding of the law are not automatically deficient.”
Swanson v. State, 306 Ga. 153, 158 (2) (a) (829 SE2d 312) (2019).
See also Floyd v. State, 318 Ga. 312, 320-321 (2) (a) (898 SE2d 431)
(2024) (noting that “counsel’s decisions based on a
misunderstanding of the applicable law are not per se deficient”).
This is because “it is the conduct of the lawyer, not his thinking, that
we assess for reasonableness.” Powell v. State, 291 Ga. 743, 748 (2)
(b) n.2 (733 SE2d 294) (2012) (emphasis in original). Accordingly, to
show that trial counsel’s misunderstanding of the law resulted in
deficient performance, a defendant must show that, “under the
circumstances, the challenged action [itself] cannot be considered a
sound trial strategy.” Floyd, 318 Ga. at 320-321 (2) (a) (citation and
punctuation omitted). And here, Appellant has not made that
showing. As discussed above, forgoing a motion to suppress was a
reasonable strategy, as allowing the State to admit the portion of
21 Appellant’s police-station interview before he received Miranda
warnings had few drawbacks and helped defense counsel present an
accident defense without having Appellant testify. Accordingly, this
claim fails.
4. Finally, Appellant raises several enumerations of trial court
error and ineffective assistance of counsel related to the trial court’s
jury instructions on unlawful act involuntary manslaughter. See
OCGA § 16-5-3 (a) (“A person commits the offense of involuntary
manslaughter in the commission of an unlawful act when he causes
the death of another human being without any intention to do so by
the commission of an unlawful act other than a felony.”). The record
shows that defense counsel requested an involuntary-manslaughter
charge to give the jury an option for a “compromise verdict” in the
event that the jury did not believe Appellant’s main defense of
accident. And defense counsel requested charges on reckless conduct
and pointing a pistol to serve as misdemeanor predicates for
unlawful act involuntary manslaughter.
Although the statute defining the offense of pointing a pistol
22 provides that “[a] person is guilty of a misdemeanor when he
intentionally and without legal justification points or aims a gun or
pistol at another,” OCGA § 16-11-102 (emphasis supplied),
Appellant’s written request to charge omitted the intent element,
stating, “I charge you that it is a misdemeanor offense in the State
of Georgia to point or aim a gun or pistol at another person without
legal justification.” Appellant also filed a written request to charge
the jury that “[c]riminal negligence is an element of the offense of
[i]nvoluntary [m]anslaughter and must be found by you, the jury,
before you may find the Defendant guilty of involuntary
manslaughter in this case.” The trial court charged the jury in
accordance with these requests, and trial counsel did not object to
the jury instructions as given.
On appeal, Appellant identifies two errors in the requested
instructions, both of which went to the mental-state element of
involuntary manslaughter. First, Appellant contends that the trial
court plainly erred in giving the pointing-a-pistol charge because the
court omitted the offense’s statutory intent element. Second, he
23 contends that the trial court plainly erred in instructing the jury
that criminal negligence is an element of unlawful act involuntary
manslaughter because, although “the mens rea required for
unlawful manner involuntary manslaughter [under OCGA § 16-5-3
(b)6] is ‘criminal negligence,’” McIver v. State, 314 Ga. 109, 122-123
(2) (c) (875 SE2d 810) (2022), the mens rea element for unlawful act
involuntary manslaughter under OCGA § 16-5-3 (a) is supplied by
the misdemeanor predicate offense. And Appellant argues that
these instructions were plainly erroneous when considered as a
whole because, together, they charged the jury that the mens rea
element for pointing a pistol was criminal negligence, rather than
intent. For the same reasons, he contends that trial counsel was
ineffective for inviting the trial court to give these instructions or for
failing to object to the instructions as given.
Establishing plain error requires an appellant “to show, among
6 OCGA § 16-5-3 (b) provides, “A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.” 24 other things, that the alleged error likely affected the outcome of his
trial.” Carter v. State, 317 Ga. 689, 691 (1) (895 SE2d 295) (2023).
And establishing ineffective assistance of counsel requires an
appellant “to show not only that the failure of his trial counsel to
object was professionally deficient, but also that[,] but for such
deficient performance, there is a reasonable probability that the
result of the trial would have been different.” Id. (citation and
punctuation omitted). “This Court has equated the prejudice step of
the plain error standard with the prejudice prong for an ineffective
assistance of counsel claim.” Id. (citation and punctuation omitted).
Here, we need not decide whether Appellant affirmatively
waived his challenges to the jury instructions, whether the jury
charge was clearly erroneous, or whether trial counsel performed
deficiently with respect to the jury charge because Appellant has not
established prejudice under either the plain error standard or
Strickland. Appellant contends that the jury charge was prejudicial
because it prevented the jury from considering involuntary
manslaughter as an alternative to murder if it found that Appellant
25 intentionally pointed the pistol at Andrews. But the jury
instructions did not prevent the jury from finding that Appellant
acted in a criminally negligent manner by intentionally pointing the
pistol at Andrews. The jury charge did not state or otherwise suggest
that intent and criminal negligence were mutually exclusive
elements, and the court’s general instruction on intent — that
“[i]ntent is an essential element of any crime and must be proved by
the State beyond a reasonable doubt” — suggested otherwise.
Moreover, as we have previously said, it “is neither logically nor
legally sustainable” to conclude “that proof of a greater mens rea
cannot be used as proof to establish a lesser mens rea.” State v.
Springer, 297 Ga. 376, 381 (1) (774 SE2d 106) (2015) (noting that,
as a general matter, “the greater proof of a defendant’s intent does
not negate or contradict [proof of a lesser kind of culpability] but
only subsumes it” (citation and punctuation omitted)). Cf. Booth v.
State, 311 Ga. 374, 376 (1) (858 SE2d 39) (2021) (“[W]e have . . .
rejected the proposition that a finding of an intentional infliction of
injury precludes the element of criminal negligence in reckless
26 conduct and, therefore, have concluded that convictions for both an
offense requiring criminal intent and an offense requiring a lesser
mens rea, based on the same act against the same victim, are not
mutually exclusive.”). In other words, contrary to Appellant’s
contention, the jury could have found him guilty of involuntary
manslaughter if it found that he intentionally pointed the gun at
Andrews — even under the allegedly erroneous jury charge.
And the alleged instructional errors arguably helped Appellant
by widening the range of conduct that could have led to a verdict of
involuntary manslaughter. As Appellant acknowledges on appeal,
the trial court’s jury charge “lower[ed] the mens rea requirement
substantially for [the] misdemeanor theor[y] of unlawful act
manslaughter” predicated on pointing a pistol. And as a result, the
jury charge made it easier, not harder, for Appellant to show that he
committed involuntary manslaughter as an alternative to malice
murder.
Because the jury rejected Appellant’s involuntary-
manslaughter theory notwithstanding a jury charge that was more
27 favorable to that theory than the one he now contends should have
been given, and because substantial evidence, as described in
Division 2, supported the jury’s finding that Appellant committed
malice murder, Appellant has not established prejudice from the
alleged trial court errors and deficient performance. See Haufler v.
State, 315 Ga. 712, 718 (1) (884 SE2d 310) (2023) (“[T]he evidence of
[the appellant’s] guilt for the crimes of which he was convicted was
substantial, and it is therefore highly probable that the failure to
charge on involuntary manslaughter did not contribute to the jury’s
verdict.”); Carter, 317 Ga. at 691-692 (1) (holding that the
appellant’s “claims of plain error and ineffective assistance of
counsel predicated on the omission of an accomplice-corroboration
jury charge both fail[ed]” because there was “substantial evidence
corroborating [the appellant’s] involvement in the crimes”).7
7 Although Appellant similarly argues that the criminal-negligence charge lowered the mens rea element for reckless conduct, which was the other misdemeanor predicate for unlawful act involuntary manslaughter at issue in the case, he does not claim that he suffered prejudice from the alleged instructional error or from trial counsel’s alleged deficiency in failing to object to the charge. 28 Appellant further claims that he suffered cumulative prejudice
from these alleged instructional errors and trial counsel’s failure to
object to the alleged instructional errors. Appellant’s cumulative-
error claim fails, however, “[b]ecause the harm from th[e] assumed
error[s] and assumed deficiency is the same” — namely, that the
jury was given allegedly erroneous instructions — “and we have
concluded that the [allegedly erroneous] instructions did not likely
affect the outcome of the trial.” Priester v. State, 317 Ga. 477, 492 (5)
(f) n.20 (893 SE2d 751) (2023).
Judgment affirmed. All the Justices concur.
29 Decided May 29, 2024 — Reconsideration denied July 2, 2024.
Murder. Hall Superior Court. Before Judge Bearden.
Lawrence J. Zimmerman, Matthew K. Winchester, for
appellant.
Lee Darragh, District Attorney, Anna V. Fowler, Kelley M.
Robertson, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Meghan
H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, M.
Catherine Norman, Eric C. Peters, Assistant Attorneys General, for
appellee.