In the Supreme Court of Georgia



                                               Decided: October 5, 2015


                    S15A0796. THOMAS v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Dorville Thomas was convicted of malice murder in connection

with the shooting death of Kalvin McGee and was sentenced to life

imprisonment. Thomas now appeals his conviction and sentence on the grounds

that the evidence was insufficient to support the verdict, that the trial court

wrongly refused his requested jury instructions, and that his trial counsel was

ineffective. Finding no error, we affirm.1


      1
        Thomas was indicted in May 2009 by a Cobb County grand jury for malice
and felony murder. A jury trial was held on March 9 and March 10, 2010. The jury
was instructed on malice murder, felony murder, and voluntary manslaughter; the jury
found Thomas not guilty of voluntary manslaughter and guilty of both malice murder
and felony murder. The felony murder count was vacated by operation of law, see
OCGA § 16-1-7, and Thomas was sentenced to life imprisonment for malice murder.
Thomas filed a motion for new trial on March 11, 2010, and, after new counsel was
appointed, filed an amended motion for new trial on September 6, 2013. In October
2013, the trial court held a hearing on the amended motion for new trial and, on
November 13, 2013, denied the motion. Thomas filed his notice of appeal on
November 27, 2013; the appeal was docketed to the April 2015 term of this Court and
was thereafter submitted for decision on the briefs.
      Viewed in the light most favorable to the jury’s verdicts, the evidence

adduced at trial established as follows. McGee was a self-described transsexual

who advertised escort services under the name “Meeya” and met with clients at

an apartment he shared with his roommate, Christian Alexander. Although

McGee had long hair, breasts, and a “soft feminine voice,” McGee’s

advertisements clearly indicated that he identified as transsexual. Around 11

p.m. on the night of the murder, Alexander was returning to the apartment and

had a brief telephone conversation with McGee; McGee, who was at the

apartment, indicated that a client was coming over. Alexander arrived a few

minutes later, and, when he arrived, he observed that the apartment was set up

as if McGee had a client there. Alexander also noticed that the front door was

unlocked and that a door leading to McGee’s side of the apartment was open,

which Alexander found strange. After getting to his room, Alexander sent a text

message to McGee but received no response. Shortly thereafter, Alexander

entered McGee’s room and discovered him dead on the floor next to the bed.

      McGee’s death was caused by two gunshots, one to the jaw and one to the

chest, and McGee’s bed showed evidence of two additional gunshots. The

gunshot to McGee’s jaw, which likely came first and was fired at close range,

                                      2
could have occurred during a struggle; the chest wound, however, was fired

from several feet away and likely did not occur during a struggle. Soot on

McGee’s hand indicated that his hand was near the gun when it was fired.

     Although McGee communicated with his clients using a cell phone,

investigators were unable to locate McGee’s cell phone. Likewise, although

McGee was known to be paid up-front in cash and to keep cash in various

locations in his bedroom, investigators found no cash there. A review of

McGee’s cell phone records led to Thomas, and a search of Thomas’s residence

yielded what was later confirmed to be the murder weapon, a .32 caliber Smith

and Wesson revolver. Thomas was interviewed by investigators, and, initially,

he denied knowing McGee or being present at his apartment.           Thomas

eventually admitted that, after purchasing marijuana, he spoke with McGee by

phone and went to McGee’s apartment. According to Thomas, he was armed

when he went to McGee’s apartment because he carried a gun for protection

when he purchased marijuana. Thomas told investigators that, as he was lying

next to McGee on the bed, he observed that McGee was not fully female and got

up to leave; as he was leaving, an agitated McGee reached for the gun in

Thomas’s back pocket, and Thomas pulled out the gun. According to Thomas,

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he and McGee “tussled” for the gun, fell to the bed, and, while struggling on the

bed for the gun, it “went off” three times. Thomas told investigators that he

never paid McGee.

      1. The evidence as summarized above was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Thomas was guilty of

malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). Thomas argues, however, that there is no evidence that he acted with

express or implied malice. According to Thomas, there was no evidence that

he was familiar with McGee before the murder or that he knew that McGee was

a man before he arranged to meet him. Thomas also argues that his statement

to investigators is the only direct evidence of what occurred that night.

      “Express malice is that deliberate intention unlawfully to take the life of

another human being which is manifested by external circumstances capable of

proof[,]” and malice may be implied “where no considerable provocation

appears and where all the circumstances of the killing show an abandoned and

malignant heart.” OCGA § 16-5-1 (b). “It is for a jury to determine from all the

facts and circumstances whether a killing is intentional and malicious.” White

v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010). Here, the jury heard

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evidence McGee clearly advertised himself as “transsexual” and that Thomas

was armed when he went to McGee’s apartment. Although the jury heard

Thomas’s statement claiming that there was a struggle for the gun, the jury also

heard evidence that the gunshot to the chest came after McGee had already been

shot and that gunshot to the chest likely did not occur during a struggle. As the

jury was instructed, “there is no requirement that there be ‘premeditation’ or a

‘preconceived’ intention to kill; malice aforethought can be formed instantly.”

Wynn v. State, 272 Ga. 861, 861 (1) (535 SE2d 758) (2000). The evidence was

sufficient to support the jury’s verdict.

      2. Thomas next argues that the trial court erred in denying his request to

charge on accident. Trial counsel submitted a written request on the law of

accident, and, although trial counsel argued in support of the instruction, trial

counsel did not object when the trial court announced that it would not give the

requested instruction. Thomas acknowledges that this issue is not preserved for

appellate review, but he asks this Court to review this issue for plain error. See

OCGA § 17-8-58 (b); Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669)

(2012) (“We review for plain error an alleged jury-instruction error if the error

is properly enumerated and argued on appeal.”). In State v. Kelly, 290 Ga. 29

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(718 SE2d 232) (2011), this Court adopted the federal plain-error standard as

set out in Puckett v. United States, 556 U. S. 129 (II) (a) (129 SCt 1423, 173

LEd2d 266) (2009), which involves the following four prongs:

      First, there must be an error or defect – some sort of “[d]eviation
      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 affect[s] the fairness, integrity or public reputation of
      judicial proceedings.”’

(Emphasis in original.) Kelly, 290 Ga. at 33. “Reversal is authorized only if all

four prongs are satisfied—a ‘difficult’ standard indeed.” Carruth v. State, 290

Ga. 342, 348 (6) (721 SE2d 80) (2012).

      “To authorize a requested jury instruction, there need only be slight

evidence supporting the theory of the charge.” Hicks v. State, 287 Ga. 260, 262

(2) (695 SE2d 195) (2010). “A person shall not be found guilty of any crime

committed by misfortune or accident where it satisfactorily appears there was

no criminal scheme or undertaking, intention, or criminal negligence.” OCGA


                                        6
§ 16-2-2. Even if the evidence did support an instruction on accident, the trial

court’s refusal to give the instruction did not affect the outcome of the trial.

“Th[e] accident defense applies where the evidence negates the defendant’s

criminal intent, whatever that intent element is for the crime at issue.” State v.

Ogilvie, 292 Ga. 6, 9 (2) (b) (734 SE2d 50) (2012). “Here, the jury was

properly and fully instructed that the State had the burden of proving beyond a

reasonable doubt that [Thomas] acted with the requisite malicious intent to

commit each of the crimes charged,” and “[t]he jury’s conclusion that [Thomas]

acted with malice thus necessarily means that it would have rejected any

accident defense, which is premised on the claim that he acted without any

criminal intent.” Sears v. State, 290 Ga. 1, 3-4 (3) (717 SE2d 453) (2011).

Accordingly, there is no plain error, and this enumeration is without merit.

      3. Thomas also argues that the trial court wrongly refused to instruct the

jury on involuntary manslaughter. Trial counsel requested the instruction based

on the theory that Thomas had unintentionally killed McGee during the

commission of an unlawful act other than a felony, namely, the misdemeanor

offense of pointing a gun at another. See OCGA § 16-11-102. Here, again,

Thomas acknowledges that this issue was not properly preserved, and he asks

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this Court to review this issue for plain error. See OCGA § 17-8-58 (b); Terry,

291 Ga. at 509.

      “A person commits the offense of involuntary manslaughter in the

commission of an unlawful act when he causes the death of another human

being without any intention to do so by the commission of an unlawful act other

than a felony.” OCGA § 16-5-3. One commits the offense of pointing a gun at

another when “he intentionally and without legal justification points or aims a

gun or pistol at another, whether the gun or pistol is loaded or unloaded.”

OCGA § 16-11-102. If, however, “the pointing of a firearm places the victim

in reasonable apprehension of immediate violent injury, then the felony of

aggravated assault, rather than the misdemeanor of OCGA § 16-11-102, has

occurred.” Savage v. State, 274 Ga. 692, 694 (3) (558 SE2d 701) (2002).

      Although Thomas argues that the evidence demonstrated that he had

“absolutely no intention of killing [McGee],” Thomas does not argue on appeal

that there was evidence that he committed the offense of pointing a gun at

another; in fact, he twice asserts in his brief that “the evidence showed that

[Thomas] never pointed the gun at [McGee].” Accordingly, this argument fails

on its face. Nevertheless, to the extent that the revolver may have been pointed

                                       8
at McGee, the evidence supports only that the firearm placed McGee in

reasonable apprehension of immediate violent injury. The jury heard evidence

that there was a struggle for the gun, that there were four shots fired, that McGee

suffered a close-contact gunshot wound, and that McGee’s hand was on or near

the gun when it was fired. “[T]here was no evidence that [Thomas] committed

an unlawful act not a felony,” and, thus, “it was not error for the trial court to

decline to give a charge on the offense of involuntary manslaughter.” Savage,

274 Ga. at 694 (3). Accordingly, there is no plain error, and this enumeration

is without merit. Kelly, 290 Ga. at 33.

      4. Thomas next argues that the trial court wrongly refused to give two of

his specific instructions related to voluntary manslaughter. Trial counsel asked

the trial court to instruct the jury that “[w]herever a homicide is neither

justifiable nor malicious, it is manslaughter.” Trial counsel also asked the trial

court to instruct the jury as follows: “Heated arguments, fear engendered by

some danger or unresolved assaults without a ‘cooling off’ period can each be

sufficient provocation to excite passion necessary for manslaughter. The

sufficiency of the provocation is an issue solely for the jury to determine.” The

trial court refused to give the requested instructions, concluding that the

                                        9
requested instructions were argumentative and covered by the pattern

instructions. Thomas again concedes that the trial court’s refusal to give these

instructions was not properly preserved, and he asks this Court to review this

issue for plain error. See OCGA § 17-8-58 (b); Terry, 291 Ga. at 509.

      “The refusal to give a requested charge, even though it is a correct

statement of law and pertinent and material to an issue in the case, is error only

if it contains information that is not substantially covered by the charge actually

given.” Velazquez v. State, 282 Ga. 871, 877 (7) (655 SE2d 806) (2008).

“Failure to give a requested jury charge in the precise language requested does

not warrant reversal where the charge given substantially covers the applicable

principles of law.” Walker v. State, 282 Ga. 406, 408 (2) (651 SE2d 12) (2007).

The trial court properly instructed the jury on murder and voluntary

manslaughter, and trial court’s instruction on voluntary manslaughter followed

the suggested pattern jury instructions. See Suggested Pattern Jury Instructions,

Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2010) §§ 2.10.40, 2.10.41,

2.10.42. The substance of both requested instructions was covered by the trial

court’s charge, and, thus, it was not error to refuse to give the instructions.

Velazquez, 282 Ga. at 877. See also Salyers v. State, 276 Ga. 568, 569-570 (3)

                                        10
(580 SE2d 240) (2003) (recognizing that the pattern instructions adequately

cover the law of “cooling time”).2

      5. Finally, Thomas contends that trial counsel was ineffective because she

failed to preserve the trial court’s refusal to give the above-referenced jury

instructions and that, as a result, Thomas has a much greater burden on appeal

under the plain-error standard. In order to prevail on this claim, Thomas must

show both that counsel’s performance was deficient and that the deficient

performance was prejudicial. See Terry v. State, 284 Ga. 119, 120 (2) (663

SE2d 704) (2008). “If an appellant fails to meet his or her burden of proving

either prong . . . the reviewing court does not have to examine the other prong.”

Rector v. State, 285 Ga. 714, 716 (6) (681 SE2d 157) (2009). As discussed

above, the trial court’s refusal to give Thomas’s requested instructions either

was not error or did not affect the outcome of Thomas’s trial. Accordingly,

Thomas would not have prevailed even if the issues were properly preserved,

and, thus, any failure by trial counsel to properly preserve the claims for appeal

      2
        In addition, we question whether the “justifiable nor malicious” instruction
was a complete statement of the applicable legal principle. See Washington v. State,
249 Ga. 728, 730 (3) (292 SE2d 836) (1982) (“When a homicide is neither justifiable
nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter.”
(Citations omitted; emphasis supplied)).

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did not prejudice Thomas. See Loadholt v. State, 286 Ga. 402 (2) (687 SE2d

824) (2010) (recognizing that trial counsel’s failure to raise a meritless objection

is, by definition, non-prejudicial).

      Judgment affirmed. All the Justices concur.




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