Munn v. State

313 Ga. 716

873 S.E.2d 166

MUNN

v.The STATE.

S22A0100

Supreme Court of Georgia.

Decided: May 17, 2022

James Kenneth Luttrell, P.O. Box 4104, Canton, Georgia 30114, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elizabeth Dalia Racine, District Attorney, Aimee F. Sobhani, A.D.A., Douglas County District Attorney's Office, 8700 Hospital Drive, Douglasville, Georgia 30134, for Appellee.

McMillian, Justice.

Mark Munn appeals his convictions for malice murder and other crimes arising out of the shooting death of Kalliber Chambers.¹ On appeal, Munn asserts that: (1) the evidence presented at his trial was insufficient to sustain his conviction for malice murder; (2) the trial court erred in failing to charge the jury on the lesser offense of voluntary manslaughter; (3) the trial court committed plain error by failing to charge the jury on Munn's sole defense of justification; (4) the trial court placed Munn in shackles before the jury, denying Munn his right to a fair trial and due process; (5) the trial court erred in admitting the responding officer's body camera footage; (6) the trial court erred in admitting a recording of phone calls made from jail by Munn; (7) the trial court erred in denying Munn's Jackson - Denno² motion; and (8) Munn received ineffective assistance of counsel. We affirm for the reasons discussed below.

Viewed in the light most favorable to the jury's verdict, the evidence showed that 13-year-old K. C. lived in the Birch Landing Apartments ("Birch Landing") with her mother. Her adult brother, Chambers, did not live there but visited "every day." On March 3, 2018, K. C. was at Birch Landing playing outside with other children while her brother and other adults were also outside. A grey car sped by and pulled into a parking space. As the driver began walking toward the apartments, Chambers confronted the driver about almost hitting the kids playing, and the driver pulled out a weapon and pointed it at Chambers. Chambers put his hands up and asked, "You going to shoot me?" The man then started shooting Chambers; afterwards, the man drove away in a red car.

Numerous eyewitnesses identified the shooter as Munn. A neighbor, Joy Smith, testified that she was familiar with Munn because his girlfriend, Tameka Brooks, lived in the apartment across the hall from Smith. Brooks and Munn had three cars including a silver sedan and a red Dodge Charger.³ On the day of the shooting, Smith's 12-year-old son was playing outside with K. C. and other children. That afternoon, Smith noticed that it "[s]eem[ed] like something was going on" between Munn and Brooks before Munn left in a silver sedan. Munn later returned, speeding through the parking lot and almost hitting the children playing. Chambers told Munn to slow down, but Munn responded, "F*** them kids." Smith heard Chambers ask if Munn was going to shoot him and saw Munn pull out a handgun and fire four or five shots into Chambers. The two men were standing about a car's length apart. Munn then screamed for Brooks to give him the keys, she threw him the keys, and Munn left in the red "Charger." Smith called 911, and the phone call was played for the jury.⁴

Another witness, Malcome McGee, arrived at Birch Landing about 15 minutes before the shooting. McGee was sitting in the driver's seat of his own car, and Chambers was standing next to McGee's open car door. McGee saw Munn, whom he knew, drive into the parking lot and park one space away from McGee's car. When Chambers asked Munn to slow down, Munn stepped out of the car and said, "Don't play with me." Munn and Chambers's conversation was not long. Munn fired six or seven shots, and Chambers fell down face first. McGee and another witness turned Chambers over, and McGee saw the holes in Chambers's abdomen.

Other eyewitnesses present on March 3 testified that when Chambers asked Munn to slow down because of the kids, Chambers did so in a normal, non-threatening tone. After Chambers spoke to Munn, one witness heard Munn respond, "What did you say?" – prompting Chambers to again ask Munn to slow down, with no anger in his voice. Witnesses saw Munn draw a small-caliber handgun and Chambers throw his hands up stating, "I know you're not going to shoot me." Another witness stated that Munn fired six to eight shots before fleeing in a red Challenger.

Brooks testified that, in 2018, she lived in Birch Landing and that Munn was her boyfriend; he regularly stayed with her. On March 3, Brooks and Munn went to the nail shop and then to Applebee's. After they returned to Birch Landing, Munn's mother called, requesting food. Brooks and Munn got into a disagreement because Brooks did not want to leave;⁵ Munn became upset and left in the Altima to take his mother food. When Munn returned, he parked the car and started walking toward the apartments. Chambers asked Munn to slow down, and Munn and Chambers exchanged words. Munn pulled out a gun⁶ and immediately started shooting; Chambers put his hands up and fell to the ground. Munn asked Brooks for the keys to the Challenger, which she threw to him, and Munn drove away. Munn never told Brooks that he was planning to shoot or hurt Chambers.

Deputy Michael Long, one of the responding officers on March 3, 2018, testified that he arrived at Birch Landing before emergency medical services. While another deputy was attending to Chambers, Deputy Long secured the scene and collected contact information from witnesses. His body camera video recording, which was played for the jury, showed unsolicited comments from several people, including two people who spoke about what they had witnessed: that the shooter shot Chambers for no reason and that the shooter had left the scene.⁷

Stephen Albright, a paramedic for the Douglas County Fire Department, responded to the call around 5:30 p.m. on March 3 and arrived at Birch Landing around 5:45 p.m. He transported Chambers to the hospital a few minutes later, where Chambers was declared dead. The medical examiner who conducted the autopsy testified that Chambers suffered three gunshot wounds through his torso and one wound through his right arm. All three torso wounds were severe, causing internal bleeding, and one of the gunshots perforated the heart. The medical examiner opined that the cause of death was multiple gunshot wounds.

Crime scene investigator Joe Williams testified that he arrived at the scene after Chambers was transported to the hospital. Williams testified that three nine-millimeter cartridge casings were recovered from the parking lot. A GBI firearms investigator testified that these cartridge cases were fired from a nine-millimeter pistol later recovered from Munn's vehicle.

Once in custody, Munn was interviewed by Investigator Jay Hayes. Investigator Hayes conducted two separate interviews with Munn on March 4: the first at 12:40 a.m. and the second at 4:30 p.m. Both interviews were audio and video recorded and introduced into evidence.⁸ During the first interview, Munn was communicative and answering questions. Munn insinuated that Chambers was a "Crip" gang member and acknowledged knowing that Chambers was dead, but denied shooting him. Munn also provided an alibi and questioned Investigator Hayes about why there were eight holes in Chambers if there were only five shots. Investigator Hayes ultimately stopped this interview because he decided to interview Munn again later when Munn was more sober. During the second interview, Munn accepted responsibility for the shooting, acknowledged that he shot Chambers multiple times, and said he had no reason to shoot Chambers. Investigator Hayes searched Munn's Dodge Challenger and found the nine-millimeter pistol in the center console. Two days later, on March 6, Munn called Investigator Hayes from the jail.⁹ During this phone call, Munn said "[Chambers] was running at me, man," and "he run up on me like that," and that Chambers said, "I don't give a f*** bout you got a pistol on you bruh," implying that Chambers had a weapon on him.

Munn did not testify at trial, but recordings of several phone calls made by Munn to Brooks from jail were introduced into evidence and played for the jury. In these calls, Munn repeatedly admitted to Brooks that he killed Chambers, and he expressed guilt over the situation. At trial, defense counsel moved generally to exclude the jail calls and specifically moved to exclude the "one where Mr. Munn is heard saying words that basically he's done this [i.e., killed] before," arguing that it was highly prejudicial character evidence. The court overruled the objection and admitted the jail calls.¹⁰

1. In his first enumeration of error, Munn asserts that the evidence presented at trial was insufficient to sustain his conviction for malice murder under OCGA § 16-5-1 (a) because the facts did not support a finding that Munn acted with malice aforethought. In reviewing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted).

OCGA § 16-5-1 (a) provides that "[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." However, "[t]he malice necessary to establish malice murder may be formed in an instant, as long as it is present at the time of the killing." Benton v. State , 305 Ga. 242, 244 (1) (a), 824 S.E.2d 322 (2019). It is for the jury to weigh the evidence and determine whether a killing is intentional and malicious. See id.

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