297 Ga. 184
FINAL COPY


                        S15A0139. DYAL v. THE STATE.


      BLACKWELL, Justice.

      Appellant Lewis Dyal was tried by a Berrien County jury and convicted

of murder, aggravated assault, and the unlawful possession of a firearm during

the commission of a felony, all in connection with the fatal shooting of his adult

son, Jonathan. Appellant now contends that the trial court erred with respect to

several evidentiary matters, when it charged the jury about evidence of prior

difficulties between Appellant and his son, when it used a certain verdict form,

and when it sentenced him for both murder and aggravated assault. We agree

that the aggravated assault should have been merged into the murder, and we

therefore vacate the conviction and sentence for aggravated assault. We

otherwise see no error, however, and we affirm the judgment of conviction and

sentences as to murder and unlawful possession of a firearm.1

      1
         Appellant’s son was killed on December 17, 2007. Appellant was indicted on
November 17, 2008 and charged with malice murder, felony murder, aggravated assault, and
the unlawful possession of a firearm during the commission of a felony. Appellant was tried
beginning on March 24, 2009, and the jury returned its verdict the following day. The jury
did not reach a verdict as to felony murder, but it found Appellant guilty of all the other
charges. The trial court sentenced Appellant to imprisonment for life for malice murder, a
       1. Viewed in the light most favorable to the verdict, the evidence shows

that Appellant lived near Alapaha with his wife and Jonathan. Appellant had a

strained relationship with Jonathan, and there had been several incidents of

violence between them, including an altercation in 2000 that resulted in

Appellant having to undergo facial reconstructive surgery.

       On the evening of December 17, 2007, Appellant carried a handgun into

the kitchen of the family home, where his wife and son were seated at a table.

Appellant’s wife had not heard Appellant and her son arguing that evening, and

she did not know why Appellant was carrying his handgun. Appellant pointed

the gun at both his wife and son, put his hand on his wife’s shoulder in a way

that made her feel like he wanted her to stay seated, and shot Jonathan in the

head. When Appellant’s wife reached out to Jonathan, Appellant said, “[l]eave

him alone, you stupid b____, he’s dead. . . . You want to be the next one?”



concurrent term of imprisonment for ten years for aggravated assault, and a consecutive term
of imprisonment for five years for unlawful possession of a firearm. On May 7, 2009,
Appellant requested leave to file an out-of-time motion for new trial, the trial court granted
that request on June 11, 2009, Appellant filed a motion for new trial on the same day, and he
amended that motion on October 17, 2013. The trial court denied Appellant’s motion for new
trial on January 14, 2014, and Appellant timely filed a notice of appeal on February 3, 2014.
The case was docketed in this Court for the January 2015 term and orally argued on January
5, 2015.

                                              2
When police officers arrived at the home soon thereafter, they noted a strong

odor of alcohol on Appellant’s breath, that his speech was slurred, and that his

motor skills were impaired. Appellant told the officers that he killed his son

because “he was going to beat my tail.” At trial, Appellant presented a

justification defense, but it was rejected by the jury.

      Appellant does not dispute that the evidence is sufficient to show that he

committed each of the crimes of which he was convicted, but he does assert that

the trial court erred when it sentenced him for both malice murder and

aggravated assault. Georgia law proscribes multiple convictions where “[o]ne

crime is included in the other.” OCGA § 16-1-7 (a) (1). And a crime is included

in another crime when, among other things, “[i]t is established by proof of the

same or less than all the facts . . . required to establish [the other] crime.” OCGA

§ 16-1-6 (1). Here, the indictment charged Appellant with malice murder for

fatally shooting his son in the head, and it charged Appellant with aggravated

assault for pointing the gun at his son and pulling the trigger. Appellant was

charged with committing a single assault against his son, and it was this assault

that resulted in his son’s death. As a result, the aggravated assault with a deadly

weapon did not require proof of any fact not also required to be proved for the

                                         3
malice murder. Consequently, the aggravated assault should have been merged

into the malice murder, and the sentence imposed for aggravated assault must

be vacated. See Culpepper v. State, 289 Ga. 736, 738 (2) (a) (715 SE2d 155)

(2011); compare Willingham v. State, 281 Ga. 577, 579 (642 SE2d 43) (2007)

(aggravated assault did not merge with murder where the indictment alleged that

defendant assaulted victim by placing him in reasonable apprehension of

immediately receiving a violent injury because only the aggravated assault count

required the State to offer proof of that element). As to the convictions for

murder and unlawful possession of a firearm, we conclude that the evidence

adduced at trial is legally sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Appellant was guilty of those crimes. Jackson

v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       2. Appellant claims that the trial court erred when it refused to admit

evidence of prior bad acts allegedly committed by Jonathan against third parties

that caused Appellant to fear his son.2 The trial court excluded this evidence

       2
         In a related enumeration of error, Appellant asserts that the trial court abused its
discretion when it directed the redaction of a statement made by Appellant from the recording
of a phone conversation between Appellant and law enforcement that took place on the night
that Appellant killed his son. Appellant acknowledges that this enumeration of error “is
contingent upon” the issue regarding the admissibility of evidence of prior bad acts

                                             4
after finding that Appellant failed to give proper notice under Uniform Superior

Court Rule 31.1, which requires that a defendant notify the State ten days before

trial of his intention to introduce evidence of specific acts of violence by the

victim against third parties.3 Appellant acknowledges that he failed to provide

proper notice, however, and it is well-settled that a trial court has “[broad]

discretion in deciding whether to vary the time for filing [under Rule 31.1], and

its decision will not be upset absent abuse.” Darden v. State, 271 Ga. 449, 450

(2) (519 SE2d 921) (1999) (citation omitted). Here, the record shows that the

trial court understood that it had the discretion to admit evidence of prior bad

acts committed against third parties by Appellant’s son, but it declined to do so

after finding that Appellant had no reason for his failure to provide the State

with proper notice. Moreover, the untimely notice that Appellant provided to the



committed by Appellant’s son against third parties because the portion of the recording that
the trial court suggested would have to be redacted was a statement in which Appellant said
that his son had been on probation for shooting a deputy and beating up his girlfriend. In any
event, the record shows that this recording was never played for the jury, and the trial court
never actually redacted any statement as Appellant claims.
       3
         We note that this case was tried under our old Evidence Code, which permitted an
accused claiming justification to offer evidence of specific acts of violence by the victim
against third parties under the rule of Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d
669) (1991). We do not decide today whether Chandler retains its viability under the new
Evidence Code.

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State did not include specific information about the alleged prior bad acts as

required by Uniform Superior Court Rule 31.6 (B), but it instead merely

informed the State that Appellant intended to introduce “evidence of [an

unspecified] act [ ] of violence by the victim.” As a result, the trial court did not

err when it excluded this evidence.4

       3. Appellant also contends that the trial court erred when it allowed a GBI

agent to testify that, while the agent was investigating the 2000 altercation

between Appellant and his son that resulted in Appellant having to undergo

facial reconstructive surgery, Appellant’s son made a written statement claiming

that Appellant came in the house “drunk out of his mind” and pointed a gun at

       4
          It is not altogether clear what this evidence would have been, and this uncertainty
is also fatal to Appellant’s claim that his trial lawyer was ineffective because her violation
of Rule 31.1 resulted in the exclusion of evidence. The only evidence of the victim’s prior
bad acts against third parties introduced either at the hearing at which the trial court excluded
evidence of prior bad acts or at the hearing on Appellant’s motion for new trial is that
Appellant’s son was charged with the 2004 aggravated assault of a Coffee County police
officer. But no details of this – or any other – incident were introduced at those hearings, and
we can only speculate about what testimony could have been provided by any witnesses to
any prior bad acts committed by Appellant’s son against third parties. See Johnson v. State,
290 Ga. 382, 386 (2) (d) (721 SE2d 851) (2012) (“[s]peculation is insufficient to establish
prejudice under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)
(1984)]”). In any event, it was the victim’s relationship with Appellant that appears to have
been historically violent, so Appellant’s justification defense was not “defeated” by his
inability to present evidence of bad acts allegedly committed by the victim against third
parties as he now claims. See Owens v. State, 270 Ga. 199, 201 (2) (509 SE2d 905) (1998)
(defendant need not provide the State with notice when he intends to introduce evidence of
prior difficulties with the victim to support a claim of justification).

                                               6
him. Appellant claims that evidence of this written statement should have been

excluded under the Confrontation Clause and as hearsay, but he made no

objection to the evidence at trial. As a result, this enumeration of error is not

preserved for our review. See Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d

263) (2004).5

      4. Appellant claims that the trial court committed plain error when it

approved a verdict form that provided for the jury to consider the charge of

voluntary manslaughter only if it found that he was not guilty of malice murder

or felony murder. We have already found that “[a] sequential charge requiring

the jury to consider voluntary manslaughter only if it has considered and found

the defendant not guilty of malice murder and felony murder is not appropriate

where there is evidence that would authorize a charge on voluntary

manslaughter.” Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992)

(emphasis in orginal). But, as Edge explains, this is so because if the jury



      5
         In any event, the GBI agent’s testimony about the written statement provided by
Appellant’s son was cumulative of the testimony by Appellant’s wife about the same 2000
altercation. See Humphrey v. State, 281 Ga. 596, 599 (3) (642 SE2d 23) (2007) (violation
of Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004) is harmless
where evidence is cumulative of other testimony that was subject to cross-examination).


                                           7
determines that the defendant is not guilty of malice murder, but is guilty of

felony murder, the sequential charge would prevent the jury from “consider[ing]

evidence of provocation or passion which might authorize a verdict for

voluntary manslaughter [instead of felony murder].” Id.; see also OCGA

§ 16-5-2 (a) (voluntary manslaughter occurs when someone causes the death of

another “under circumstances which would otherwise be murder”).

       But while the verdict form used in this case had the potential to result in

a situation such as that addressed in Edge (requiring a reversal of a felony

murder conviction),6 the jury in this case found Appellant guilty of malice

murder, not felony murder. And “[b]y finding that [A]ppellant had committed

the homicide with malice, the jury necessarily found that [he] had committed the

homicide without the provocation sufficient to authorize a verdict of guilty of

voluntary manslaughter.” McGill v. State, 263 Ga. 81, 83 (3) (428 SE2d 341)

(1993) (emphasis in original).7 It was the jury’s finding that Appellant killed his

       6
        We caution yet again that trial courts should not use a sequential verdict form that
precludes a jury from considering voluntary manslaughter until after it has reached a verdict
on felony murder.
       7
        In addition, we note that the trial court charged the jury that, “before [it] would be
authorized to return a verdict [finding Appellant] guilty of murder, [it] must first determine
whether mitigating circumstances, if any, would cause the offense to be reduced to voluntary
manslaughter.”

                                              8
son with malice — not the potentially faulty verdict form — that eliminated a

determination that Appellant was guilty only of voluntary manslaughter. As a

result, this enumeration of error has no merit.8

       5. Finally, Appellant argues that the trial court erred when it instructed the

jury that evidence showing that there had been prior difficulties between him

and his son had been admitted “for the sole purpose of illustrating, if it does so

illustrate, the state of feeling between the defendant and the alleged victim and

the bent of mind and course of conduct on the part of the defendant.” Appellant

says that references to “bent of mind” and “course of conduct” would have been

more appropriate in a charge on how a jury could consider similar transaction

evidence. But Appellant did not object to this charge at trial, and in any event,

we have held that such a charge was not erroneous at the time Appellant was

tried and that it was, in fact, consistent with the pattern jury instruction on prior

difficulties at the time. See Jones v. State, 289 Ga. 145, 147 (2) (710 SE2d 127)




       8
        Similarly, Appellant’s claim that his trial lawyer was ineffective because she failed
to object to the verdict form must also fail. See Johnson v. State, 295 Ga. 615, 619 (3) (a)
(759 SE2d 837) (2014).

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(2011).9 As a result, even if the charge was error, it was not plainly erroneous.

See McKibbins v. State, 293 Ga. 843, 854 (7) (750 SE2d 314) (2013).

       Judgment affirmed in part and vacated in part. All the Justices concur.



                                  Decided June 1, 2015.

       Murder. Berrien Superior Court. Before Judge McClain.

       Elizabeth A. Wood, for appellant.

       Richard L. Perryman III, District Attorney, Patrick Warren, Assistant

District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Michael A. Oldham, Assistant Attorney General, for appellee.




       9
         The pattern instruction on prior difficulties now provides, in part, that “[e]vidence
of prior difficulties (or lack thereof) between the defendant and the alleged victim . . . has
been admitted for the sole purpose of illustrating, if it does, the state of feeling between the
defendant and the alleged victim . . . [and] the reasonableness of any alleged fears by
defendant or alleged victim.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases
§ 1.34.20 (4th ed.; updated January 2015).

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