Gray v. State

901 S.E.2d 556

GRAY

v.The STATE.

S24A0570

Supreme Court of Georgia.

Decided: May 14, 2024

Superior Court, DeKalb County, LaTisha Dear Jackson, Judge

Gerard Bradley Kleinrock, Office of the Public Defender, 320 Church Street, Decatur, Georgia 30030, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Sarah Jane Thomas, Clint Christopher Malcolm, Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Deborah D. Wellborn, A.D.A., Lenny I. Krick, A.D.A., Sherry Boston, District Attorney, Shannon Elysia Hodder, A.D.A., Dekalb County District Attorney’s Office, 556 North McDonough Street, Suite 700, Decatur, Georgia 30030, for Appellee.

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] .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 was in the ignition, when Jones grabbed the key and it broke in half. Jones retained the electronic key fob that allowed the car to function, while the remainder 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 Up 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 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 to 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 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.

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).

[2–5] "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 S.E.2d 96 (2019) (citation and punctuation omitted), which this Court reviews de novo. See Reese v. State, 314 Ga. 871, 880 (2), 880 S.E.2d 117 (2022). "[T]o authorize a jury instruction, there need only be produced at trial slight evidence supporting the theory of the charge." State v. Newman, 305 Ga. 792, 796-97 (2) (a), 827 S.E.2d 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 S.E.2d 140 (2018). See also Hodges v. State, 302 Ga. 564, 567 (3), 807 S.E.2d 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 S.E.2d 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 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 falling 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, 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 more times." None of the witnesses saw Jones with a gun, nor does Gray claim that Jones had a gun.

[6] 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...