296 Ga. 663
FINAL COPY

                          S14A1702. JONES v. THE STATE.

       NAHMIAS, Justice.

       Appellant Jarquez Jones was convicted of two counts of malice murder for

the shooting deaths of Thaddeus Nelson and Randy Wilder; four counts of

aggravated assault for shooting toward Amanda Hill, Alexis Jenkins, Audra

McCluster, and Shametia McCluskey; and possession of a firearm during the

commission of a felony. Appellant argues that the trial court erred in not

charging the jury on voluntary manslaughter and that his sentence of two

consecutive terms of life imprisonment plus 85 years constitutes cruel and

unusual punishment. We affirm.1

       1
          The crimes occurred on September 14, 2010. On December 17, 2010, a Fulton County
grand jury indicted Appellant, Ladarrius Jones, and Samuel Jones for two counts of malice murder,
two counts of felony murder, six counts of aggravated assault, 11 counts of participation in criminal
street gang activity, and one count of possession of a firearm during the commission of a felony.
Appellant and his co-indictees were tried from September 7 to September 23, 2011. The jury found
Samuel Jones not guilty of all charges and Appellant and Ladarrius Jones guilty of all charges except
the 11 gang activity counts. The felony murder counts were vacated as a matter of law, and the
charges for aggravated assault of Nelson and Wilder merged into the two malice murder counts. The
trial court sentenced Appellant and Ladarrius Jones to serve two consecutive terms of life
imprisonment for the malice murder convictions, 20 consecutive years for each of the four remaining
aggravated assault convictions, and five consecutive years for the firearm offense. On September
30, 2011, Appellant filed a motion for new trial, which he amended with new counsel on December
20, 2012. After a hearing, the trial court denied the motion on April 28, 2014. Appellant filed a
timely notice of appeal, and the case was docketed to this Court for the September 2014 term and
submitted for decision on the briefs. The record does not indicate whether Ladarrius Jones has
appealed.
      1.    Viewed in the light most favorable to the verdicts, the evidence at

trial showed the following. Appellant, his brother Samuel Jones, and his cousin

Ladarrius Jones were part of the “Bluff Gang,” a rap group in the Atlanta

neighborhood known as the Bluff. On September 13, 2010, Appellant and

Samuel’s mother posted insulting remarks on Samuel’s girlfriend’s Facebook

page. Samuel’s girlfriend and the four aggravated assault victims were members

of the “Young Crew,” or “YC,” another rap group in the Bluff. After several

more insults were exchanged via Facebook, members of the Bluff Gang and YC

took the online dispute to the streets. That night, Appellant and some YC

members including Alexis Jenkins had a confrontation, during which insults

were exchanged and YC members may have threatened Appellant with a gun

and a taser. In response, Appellant drew a gun and then shot at the YC members

as they ran away.

      Around 3:00 p.m. the next day, September 14, Appellant and YC members

had another confrontation, during which Appellant put a gun to Jenkins’s head

and then fired a shot into the air. Jenkins threatened to get her cousins to fight

Appellant, but she did not display a weapon.

      Around 10:00 p.m. that night, Appellant again confronted YC members

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on the street. A witness who saw the encounter testified that Appellant looked

like he was going to fight the YC members, and they appeared to exchange

angry words. As the witness turned away, the YC members ran past her, and

she heard gunshots. Several other witnesses, most of whom were YC members,

testified to seeing Appellant shoot at the fleeing group of YC members, which

included Jenkins, Hill, McCluster, and McCluskey.2 The testimony varied as to

who was with Appellant (most witnesses said he was with two or three other

men), whether his associates had guns, and how many shots were fired. Wilder

and Nelson, who were not involved in the dispute between the Bluff Gang and

YC, were standing in the area when the shooting began and were the only

people hit by the gunfire; they both died from their gunshot wounds. When the

first police officer arrived on the scene, Jenkins, who also testified at trial, told

him that Appellant and others had been shooting at them. Appellant and his co-

indictees were not located that night, but they were arrested six days later after



        2
           Although the indictment lists the name of one of the aggravated assault victims as
Shametia McCluster, at trial she was identified without dispute as Shametia McCluskey. Appellant
does not argue that this variance undermines his conviction for that count of aggravated assault, and
this Court has held that a challenge to the sufficiency of the evidence based on an incorrectly named
victim will fail when “it is clear that the two names referred to the same individual,” Bostic v. State,
294 Ga. 845, 847 (757 SE2d 59) (2014), as is the case here.

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being pulled over for speeding. No witnesses saw any YC members with guns

on September 14, and shell casings were recovered only from the area where

Appellant had been seen.

      At trial, Appellant’s defense theory was that he did not participate in the

shootings. Appellant did not testify, but he offered two alibi witnesses who

claimed that he was in a different area of the Bluff and took cover inside a

building with them when the shooting began.

      Appellant does not dispute the legal sufficiency of the evidence supporting

his convictions. Nevertheless, as is this Court’s practice in murder cases, we

have reviewed the record and conclude that, when viewed in the light most

favorable to the verdicts, the evidence presented at trial and summarized above

was sufficient to authorize a rational jury to find Appellant guilty beyond a

reasonable doubt of the crimes for which he was convicted. See Jackson v.

Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega

v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to

determine the credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.’” (citation omitted)).

      2.    Appellant argues that the trial court erred in denying his request for

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an instruction on voluntary manslaughter as a lesser included offense of murder.

In fact, that instruction was requested only by one of Appellant’s co-defendants,

and when the court denied it, Appellant did not object, likely because any

contention that he committed voluntary manslaughter would have been entirely

inconsistent with his alibi defense. Accordingly, the trial court’s failure to give

a voluntary manslaughter instruction is reviewable on appeal only for plain

error. See OCGA § 17-8-58 (b) (providing that the failure to object regarding

a jury instruction at trial precludes appellate review unless “the jury charge

constitutes plain error which affects substantial rights of the parties”); State v.

Kelly, 290 Ga. 29, 32 (718 SE2d 232) (2011) (“[A]ppellate review for plain

error is required whenever an appealing party properly asserts an error in jury

instructions.”).

            The “plain error” test adopted by this Court in State v. Kelly
      . . . authorizes reversal of a conviction if the instruction was
      erroneous, the error was obvious, the instruction likely affected the
      outcome of the proceedings, and the error seriously affected the
      fairness, integrity or public reputation of judicial proceedings.
      Satisfying all four prongs of this standard is difficult, as it should
      be.

Lake v. State, 293 Ga. 56, 59 (743 SE2d 414) (2013) (citations and punctuation

omitted). We see no plain error here.

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      A voluntary manslaughter charge is required only if there is “‘slight

evidence showing that the victim seriously provoked the defendant, causing the

defendant to kill the victim “solely as the result of a sudden, violent, and

irresistible passion,” OCGA § 16-5-2 (a).’” Merritt v. State, 292 Ga. 327, 331

(737 SE2d 673) (2013) (citation omitted). Appellant argues that evidence of

witnesses to the deadly encounter hearing numerous gunshots raised the

possibility of mutual gunfire. But there was no evidence that the YC members

had guns or shot at Appellant, and the only shell casings at the scene were found

where Appellant was seen firing his gun.

      Some evidence did suggest that YC members may have threatened

Appellant with a gun and a taser during their first encounter on the night before

the killings. It was not plain error, however, for the trial court to determine, as

a matter of law, that the one-day interval between that possible provocation and

the killings was “sufficient for the voice of reason and humanity to be heard” by

Appellant, so that “the killing[s] shall be attributed to deliberate revenge and be

punished as murder.” OCGA § 16-5-2 (a). See, e.g., Merritt, 292 Ga. at 331

(holding that no voluntary manslaughter instruction was required where “a few

hours passed between the [allegedly provoking] argument and the killing”);

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Howard v. State, 288 Ga. 741, 746 (707 SE2d 80) (2011) (same, where “the

shooting occurred three to four hours after the initial confrontation,” so that

“objectively, [Appellant’s] response to the provoking incident was

unreasonable” (citation omitted)).

      Appellant also points to evidence suggesting that he was arguing with the

YC members immediately before the shootings, but there is no evidence as to

what words were exchanged and in any event, “[a]s a matter of law, angry

statements alone ordinarily do not amount to ‘serious provocation’ within the

meaning of OCGA § 16-5-2 (a).” Merritt, 292 Ga. at 331. Moreover, “[t]his

Court has repeatedly held that neither fear that someone is going to pull a gun

nor fighting prior to a homicide are types of provocation demanding a voluntary

manslaughter charge.” Funes v. State, 289 Ga. 793, 795 (716 SE2d 183) (2011).

For these reasons, the trial court’s failure to charge on voluntary manslaughter

was not plain error. See Merritt, 292 Ga. at 331.

      3.    Appellant, who was 17 years old at the time of his crimes, also

asserts that his sentence — two consecutive terms of life imprisonment plus 85

years — constitutes cruel and unusual punishment in violation of the Eighth



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Amendment to the United States Constitution.3 Appellant did not raise this

constitutional claim at or before his sentencing or in his motion for new trial,

however, and he therefore has waived appellate review of the issue. See

Brinkley v. State, 291 Ga. 195, 196 (728 SE2d 598) (2012).

       In any event, Appellant’s Eighth Amendment claim is meritless. Georgia

law provides that “[a] person convicted of the offense of murder shall be

punished by death, by imprisonment for life without parole, or by imprisonment

for life.” OCGA § 16-5-1 (e) (1). The Supreme Court of the United States has

in recent years limited the sentences that may be imposed on defendants who

murder before they turn 18, holding first that the Eighth Amendment forbids

imposing a death sentence on such juveniles, see Roper v. Simmons, 543 U. S.

551 (125 SCt 1183, 161 LE2d 1) (2005), and then that the Constitution forbids

imposing even a mandatory sentence of life without parole, see Miller v.

Alabama, 567 U. S. ___, 132 SCt 2455, 183 LE2d 407 (2012). Since Miller,

this Court has held that sentencing a juvenile to life in prison without the

possibility of parole pursuant to OCGA § 16-5-1 (e) (1) does not violate the


       3
         Appellant raises no distinct claim under the parallel provision of the Georgia Constitution.
See Ga. Const. of 1983, Art. I, Sec. I, Par. XVII.

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federal or state constitution because such a sentence is not mandatory but rather

is imposed in the discretion of the sentencing court after consideration of all the

circumstances in the given case, including the age of the offender and the

qualities that accompany youth. See Bun v. State, 296 Ga. 549 (769 SE2d 381)

(2015); Foster v. State, 294 Ga. 383, 387 (754 SE2d 33) (2014).

      In sentencing Appellant, the trial court followed the guidance offered in

Miller and explicitly considered Appellant’s relatively young age. See Miller,

132 SCt at 2469 (requiring courts to “take into account how children are

different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison”). The court explained that it based its sentence on

balancing Appellant’s youth against the “vicious, mean, violent behavior and the

adult conduct that was engaged in,” which included the murder of not one but

two innocent bystanders. Appellant’s sentence was constitutional.

      Judgment affirmed. All the Justices concur.



                            Decided March 2, 2015.

      Murder. Fulton Superior Court. Before Judge Schwall.

      C.F. Brock & Associates, Chaunda Brock, for appellant.

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      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I.

Krick, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia

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

Attorney General, Matthew B. Crowder, Assistant Attorney General, for

appellee.




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