297 Ga. 460
FINAL COPY
                       S15A0310. WILLIAMS v. THE STATE.


       HINES, Presiding Justice.

       Quentric Williams appeals from his convictions and sentences for malice

murder, two counts of fleeing or attempting to elude a police officer, and

possession of a firearm during the commission of a crime, all in connection with

the death of Mitt Lenix. For the reasons that follow, we affirm.1

       Construed to support the verdicts, the evidence showed that Williams, a

dealer of illegal drugs, attended a drive-in movie theater with his girlfriend,

Angel Thomas. At 11:00 p.m., Williams fired a single bullet from his handgun

while he and Thomas sat in the back seat of a pickup truck he had rented.

       1
         Lenix was killed on May 12, 2012. On April 23, 2013, a DeKalb County grand jury indicted
Williams for malice murder, felony murder while in the commission of aggravated assault, felony
murder while in the commission of the crime of possession of a firearm by a convicted felon,
aggravated assault, possession of a firearm during the commission of the crime of aggravated assault,
possession of a firearm by a convicted felon, two counts of aggravated assault on a peace officer, and
two counts of fleeing or attempting to elude a police officer. Williams was tried before a jury April
29-May 2, 2013, and found not guilty of the two counts of aggravated assault on a peace officer, and
guilty of all other charges. On May 8, 2013, Williams was sentenced to life in prison without the
possibility of parole for malice murder, and consecutive terms of five years in prison for possession
of a firearm during the commission of the crime of aggravated assault, as well as each count of
fleeing or attempting to elude a police officer; the remaining charges either merged with a crime for
which a sentence was entered or were vacated by operation of law. See Malcolm v. State, 263 Ga.
369, 371-374 (4), (5) (434 SE2d 479) (1993). Williams filed a motion for new trial on June 3, 2013,
which he amended on May 9, 2014. On July 9, 2014, the motion, as amended, was denied.
Williams filed a notice of appeal on August 6, 2014, and the appeal was docketed in this Court for
the January 2015 term and orally argued on February 16, 2015.
According to what Williams told Thomas after the shooting, and what he

testified to at trial, Williams saw Lenix approaching the truck “ducking and

dodging” between cars, putting his hand in his waistband, and reaching for the

door of the vehicle. The bullet went through the closed driver’s side window and

fatally struck Lenix in the chest.

      Immediately after the shooting, Williams rapidly drove away from the

theater. Law enforcement officers engaged in a high-speed chase, and Williams

crashed his vehicle and escaped by foot; he was later arrested. Williams

testified at trial that, as far as he knew, he did not fire the bullet that killed

Lenix; he stated that he shot above Lenix to scare him away, and fled because

he was on probation and believed that a warrant was out for his arrest. A

ballistics expert testified that the condition of the projectile fragment recovered

from Lenix’s body did not allow him to conclude that it was fired from the

handgun found in Williams’s truck. There was no evidence of any other gunshot

having been fired at the drive-in that evening.

      1. The evidence was sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Williams was guilty of the crimes of which he

was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

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560) (1979).

      2. Williams asserts that during argument, the State misstated the law

regarding justification and told the jury that, as a matter of law, Williams’s

failure to admit that he fired the fatal shot would preclude the affirmative

defense of justification; Williams objected to the argument; the trial court

overruled the objection, and informed the jury that the court would provide the

law to it. The trial transcript reveals the following:


      [PROSECUTOR]: Self-preservation does not equal self-defense. Self-
      preservation does not equal self-defense. [Defense] counsel says it’s not
      relevant that he couldn’t — Quentric couldn’t bring himself to say that his
      bullet, even though the evidence is clear he’s the only one out there
      shooting, struck and killed Mitt Lenix. He says it’s not relevant. But in
      fact it’s probably the most significant relevant information. Why?
             An affirmative defense, his defense, self-defense, I had no choice,
      I was scared, the affirmative defense requires by law that the defendant
      admits the doing of the act. You don’t get self-defense if you don’t say
      you did it. You don’t get it. He wants it all. He wants to say if I did it,
      then I had no choice. But y’all can also find out that I didn’t do it. You
      don’t get it unless you admit it. It is the most relevant part. And if you
      don’t admit it and you don’t get self-defense, then you don’t get
      justification.
             You’re justified? What are you justified in doing, Quentric? What
      are you justified in doing, Quentric? According to you, you didn’t do it.
      So what are you justified in doing? That’s why his lawyer was pushing
      him. Come on, just say it, just say it. ’Cause he knew, his lawyer knew,
      and he’s supposed to know. The problem is nobody clued Quentric.


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      [DEFENSE COUNSEL]: Your honor, I’m going to object to this
      characterization of the law.

      [THE COURT]: At this point in time, I’m going to overrule the objection.
      I will be providing the law at the conclusion of the trial and the jurors will
      draw an inference on what was - - what was or was not argued during this
      course. But objection’s noted.

      [DEFENSE COUNSEL]: Thank you, Your Honor.

      [THE COURT]: All right. I’ll allow the lawyers to continue.

      [PROSECUTOR]: Nobody clued Quentric that if you can’t admit the
      doing of the act, then you don’t get the protection of self-defense in
      justification. And now the lawyer says what was in Quentric’s mind?
      What was Quentric thinking?

The prosecutor’s argument then continued, addressing the concept of

“reasonable belief” as it related to the justification defense.

      The State asserts that the argument was essentially a comment on

Williams’s credibility and his inconsistent defenses, i.e., his claims that he did

not fire any gunshot that killed Lenix, and that if he did fire the fatal shot, he

was justified in doing so. Certainly, Williams was entitled to claim both

justification and lack of causation, as “[a] defendant who pursues alternative

defense theories is entitled to requested charges on both theories, if there is

some evidence to support each theory. [Cits.]” Bishop v. State, 271 Ga. 291, 292


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(3) (519 SE2d 206) (1999). See also Turner v. State, 262 Ga. 359, 361 (2) (c)

(418 SE2d 52) (1992); Hendrix v. State, 268 Ga. App. 455, 456 (1) (602 SE2d

133) (2004). And, the State was free to comment upon Williams’s choice to

defend against the charges in that manner. See Davis v. State, 290 Ga. 757, 759

(3) (725 SE2d 280) (2012) (“It is well settled that counsel ‘is permitted wide

latitude in closing argument, and any limitation of argument is a matter for the

court’s discretion.’ [Cit.]”).   However, we cannot agree with the State’s

assertion that the prosecutor’s argument can be seen as something other than a

statement regarding the law, i.e., an attempt to inform the jury that the

affirmative defense of justification was not, as a matter of law, available to

Williams. The prosecutor specifically told the jury that “the affirmative defense

requires by law that the defendant admits the doing of the act.” (Emphasis

supplied.) The prosecutor also told the jury that “if you don’t admit it . . . then

you don’t get justification,” and that Williams’s attorney “knew [this] and he’s

supposed to know.” Of course, as noted, Williams could pursue the seemingly

contradictory defenses of lack of causation and self-defense, Bishop, supra, and

Williams was entitled to argue self-defense so long as the evidence supported

it, whether or not he admitted in his testimony that the gunshot he fired struck

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Lenix and caused his death. The prosecutor thus misstated the law so as to

potentially mislead the jury. See Long v. State, 307 Ga. App. 669, 673 (3) (705

SE2d 889) (2011).

      But, that does not end the inquiry, and we conclude that no harm arose

from the State’s argument. See Inman v. State, 281 Ga. 67, 73 (5) (635 SE2d

125) (2006). Rather, the court informed that jury that it would provide the law

to be used in the jury’s deliberations, and it did so. See Spivey v. State, 253 Ga.

187, 189-190 (3) (a) (319 SE2d 420) (1984). The court instructed the jury that

the closing arguments were not evidence, and that it was the court’s

      duty and responsibility to determine the law that applies to this case
      and to instruct you on that law. You are bound by these
      instructions. It is your responsibility to determine the facts of the
      case from all the evidence presented. Then you must apply the law
      I give you in the charge to the facts as you find them.

Furthermore, the court fully instructed the jury on the defenses of mistake of

fact and justification. Accordingly, the court made it clear that instruction on

the law would come from the court, negating any harmful effect of the

prosecutor’s misstatement of the law. Id. Moreover, at the conclusion of the

court’s charge, Williams stated that he had no objections to the charge; if

Williams believed that the court’s charge did not go far enough to correct the

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prosecutor’s misstatement, he could have asked for additional instructions.2

        3. In its charge to the jury immediately before deliberations, the trial court

instructed the jury:

An affirmative defense is a defense that admits the doing of the act charged but
seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the
burden is on the State to disprove it beyond a reasonable doubt.

This instruction was, verbatim, that which Williams had requested the court give

the jury. Williams made no objection to the instruction at trial, and now

contends that it was plain error within the meaning of OCGA § 17-8-58 (b)3 to

        2
          Williams asserts that, despite the court’s action at the time of the objection, its instruction
in its charge to the jury that “[a]n affirmative defense is a defense that admits the doing of the act
charged but seeks to justify, excuse, or mitigate it,” see Division 3, infra, exacerbated beyond any
cure what he contends is confusion created by the prosecutor’s argument; but, the separate roles of
the court and counsel were made clear. While Williams might have sought an instruction from the
court that clarified that, under the specific facts of this case, the language “admits the doing of the
act charged” referred to the act of firing his pistol as the “relevant act that was directly connected to
his [affirmative] defense,” Price v. State, 289 Ga. 459, 461 (2) (712 SE2d 828) (2011), he did not
do so. Williams requested and received a jury instruction on the law of mistake of fact.
        3
            OCGA § 17-8-58 reads:

                (a) Any party who objects to any portion of the charge to the jury or the
        failure to charge the jury shall inform the court of the specific objection and the
        grounds for such objection before the jury retires to deliberate. Such objections shall
        be done outside of the jury's hearing and presence.
                (b) Failure to object in accordance with subsection (a) of this Code section
        shall preclude appellate review of such portion of the jury charge, unless such portion
        of the jury charge constitutes plain error which affects substantial rights of the
        parties. Such plain error may be considered on appeal even if it was not brought to
        the court's attention as provided in subsection (a) of this Code section.



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give the instruction. As this Court has stated, the test for determining if there

has been plain error in jury instructions under OCGA § 17-8-58 (b) is:

      First, there must be an error or defect — some sort of deviation
      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 rights, which in the ordinary case means he
      must demonstrate that it affected the outcome of the trial court
      proceedings. Fourth and finally, if the above three prongs are
      satisfied, the appellate court has the discretion to remedy the error
      — discretion which ought to be exercised only if the error seriously
      affects the fairness, integrity or public reputation of judicial
      proceedings. [Cit.]

Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012).

      Assuming that Williams did not affirmatively waive this alleged error by

requesting the instruction of which he now complains, see Woodard v. State,

296 Ga. 803, 809 (3) (a) (771 SE2d 362) (2015); Shaw v. State, 292 Ga. 871,

873, n. 3 (742 SE2d 707) (2013), the alleged error is not clear or obvious, and

thus, fails to meet the second prong of the plain error test.

      The instruction at issue appears in this State’s pattern jury instructions, see

Council of Superior Court Judges of Georgia, Suggested Pattern Jury

Instructions, Vol. II: Criminal Cases § 3.00.00 (4th ed. 2007), and has been


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approved in multiple opinions of the Appellate Courts of this State.4 See, e.g.,

Brown v. State, 267 Ga. 350 (2) (478 SE2d 129) (1996); Ferguson v. State, 322

Ga. App. 565, 569 (2) (c) (745 SE2d 784) (2013); Taylor v. State, 231 Ga. App.

73 (2) (498 SE2d 552) (1998). Accordingly, it cannot be said that in giving the

requested instruction, the trial court committed an error that was clear or

obvious. See Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012); State

v. Kelly, 290 Ga. 29, 34 (2) (b) (718 SE2d 232) (2011).

       4. Williams also contends that the trial court committed plain error in the

context of OCGA § 17-8-58 (b) when it instructed the jury on the use of

testimony of a law enforcement officer about a prior incident in which Williams

fled from the officer after being stopped for speeding; the officer began to

investigate the smell of marijuana emanating from Williams’s vehicle, and

Williams snatched his driver’s license from the officer’s hand and rapidly drove

away.5 The evidence was admitted to show Williams’s intent under OCGA §

       4
         It appears that the first articulation of the principle in its current form was taken from a
definition that appeared at 21 AmJur2d 204, § 135. See Chandle v. State, 230 Ga. 574 (3) (198 SE2d
289) (1973); Radford v. State, 202 Ga. App. 532, 533, n. 1 (415 SE2d 34) (1992).
       5
         Williams was charged with two counts of fleeing or attempting to elude a police officer.
Although he contends that his admission that he fled from police removed any question of those
crimes from the jury’s consideration, and hence, obviated the need for the State to present any
evidence regarding his intent as to those crimes, his “plea[s] of not guilty contested every allegation

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24-4-404 (b).6

       At trial, Williams objected to the admission of this evidence,7 and in

response to the trial court’s query, stated that he had no objection to the



of the criminal charges against him that was necessary to establish guilt.” Graves v. State, 269 Ga.
772, 773 (1) (504 SE2d 679) (1998), disapproved on other grounds, Jones v. State, 272 Ga. 900, 903
(2) (537 SE2d 80) (2000).
       6
        OCGA § 24-4-404 reads:
               (a) Evidence of a person's character or a trait of character shall not be
       admissible for the purpose of proving action in conformity therewith on a particular
       occasion, except for:
               (1) Evidence of a pertinent trait of character offered by an accused or by the
       prosecution to rebut the same; or if evidence of a trait of character of the alleged
       victim of the crime is offered by an accused and admitted under paragraph (2) of this
       subsection, evidence of the same trait of character of the accused offered by the
       prosecution;
               (2) Subject to the limitations imposed by Code Section 24-4-412, evidence
       of a pertinent trait of character of the alleged victim of the crime offered by an
       accused or by the prosecution to rebut the same; or evidence of a character trait of
       peacefulness of the alleged victim offered by the prosecution in a homicide case to
       rebut evidence that the alleged victim was the first aggressor; or
                (3) Evidence of the character of a witness, as provided in Code Sections
       24-6-607, 24-6-608, and 24-6-609.

               (b) Evidence of other crimes, wrongs, or acts shall not be admissible to prove
       the character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, including, but not limited to, proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident. The prosecution in a criminal proceeding shall provide
       reasonable notice to the defense in advance of trial, unless pretrial notice is excused
       by the court upon good cause shown, of the general nature of any such evidence it
       intends to introduce at trial. Notice shall not be required when the evidence of prior
       crimes, wrongs, or acts is offered to prove the circumstances immediately
       surrounding the charged crime, motive, or prior difficulties between the accused and
       the alleged victim.
       7
           In this Court, Williams does not enumerate as error the admission of the evidence.

                                                 10
instruction the court proposed to give, but reiterated his objection to the

evidence. Prior to the testimony about the prior incident, the court instructed the

jury:

        The State is offering this evidence of other crimes, wrongs, and act
        allegedly committed by the accused. You are permitted to consider
        that evidence only insofar as it may relate to those issues and not for
        any other purpose. You may not infer from such evidence that the
        defendant is of a character that would commit such crimes.
        Evidence may be considered only to the extent that it may show the
        intent to prove in the crimes charged in the case now on trial. Such
        evidence, if any, may not be considered by you for any other
        purpose. The defendant is on trial for the offenses charged in the
        indictment only and not for any other acts, even though such acts
        may incidentally be criminal. Before you may consider any such
        alleged acts for the limited purpose stated, you must first determine
        whether the accused committed the other alleged acts. If so, you
        must then determine whether the act shed any light on the elements
        of the offenses for which the act was admitted in the crimes charged
        in the indictment in this trial. Remember to keep in mind the
        limited use and prohibited use of this evidence about other acts of
        the defendant. By giving this instruction, the court in no way
        suggests that the defendant has or has not committed any other acts,
        nor whether such acts, if committed, prove anything. This is solely
        a matter for your determination.

In its charge to the jury just before deliberation, the court repeated this

instruction virtually verbatim.

        The State asserts that this limiting instruction, too, tracks the pattern jury

instructions.     And this is correct, although the instruction was given

                                          11
inaccurately; had the pattern charge been followed exactly, the fourth sentence

would have read, “[e]vidence may be considered only to the extent that it may

show the intent that the State is required to prove in the crimes charged in the

case now on trial.” See Council of Superior Court Judges of Georgia, Suggested

Pattern Jury Instructions, Vol. II: Criminal Cases § 1.34.10 (4th ed. 2007)

(Emphasis supplied.) Nonetheless, despite the trial court’s misstatement,

Williams fails to meet the third prong of the plain error test, which requires that

“the error must have affected the appellant’s substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome of the trial

court proceedings.” Cheddersingh, supra.

      The court’s charge to the jury included instructions that: intent is an

element of any crime, to be proven by the State beyond a reasonable doubt;

intent may not be presumed, but may be inferred from the proven circumstances,

or by the acts and conduct of the accused; and that criminal intent means the

intention to commit the act prohibited, which could be found “upon a

consideration of the words, conduct, demeanor, motive, and other circumstances

connected with the act for which the accused is being prosecuted.” Viewing the

contemporaneous instructions and jury charges as a whole, the jury was given

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a proper understanding of the concept of intent and the State’s burden to prove

it beyond a reasonable doubt, and the failure to give the complete limiting

instruction as set forth in the pattern jury instructions did not render deficient the

court’s instructions as to how the jury was to view the evidence of the prior

incident. See Sedlak v. State, 275 Ga. 746, 751 (2) (f) (571 SE2d 721) (2002).

Accordingly, even though the contemporaneous instruction was not complete

as set forth in the pattern jury instructions, there is no likelihood that the

instruction regarding “intent to prove” affected the jury’s verdicts. See Choisnet

v. State, 295 Ga. 568, 572-573 (2) (761 SE2d 322) (2014).

      Judgments affirmed. All the Justices concur, except Hunstein, J., who

concurs in judgment only as to Division 2.




                                         13
        Decided June 1, 2015 – Reconsideration denied July 6, 2015.

     Murder. DeKalb Superior Court. Before Judge Adams.

     Gerard B. Kleinrock, for appellant.

     Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Zina B.

Grumbs, A’Sheika L. Penn, Assistant District Attorneys; Samuel S. Olens,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Andrew G. Sims, Assistant

Attorney General, for appellee.




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