310 Ga. 365
FINAL COPY
S20A0718. MIDDLETON v. THE STATE.
BOGGS, Justice.
Appellant Christopher Lamont Middleton challenges his 2018
conviction for felony murder for the shooting death of Wesley
Bryant. Appellant contends that the evidence was insufficient to
support his conviction, that the count of the indictment charging
him with felony murder based on armed robbery was void because it
did not allege the essential elements of armed robbery, and that the
trial court erred in refusing to charge the jury on self-defense. Seeing
no reversible error, we affirm.1
1 Bryant was killed on November 22, 2016. On March 29, 2017, a
Gwinnett County grand jury indicted Appellant for malice murder, three
counts of felony murder, armed robbery, aggravated assault with a deadly
weapon, and possession of a firearm by a first offender probationer. At a trial
from August 20 to 24, 2018, the jury acquitted Appellant of malice murder but
found him guilty of two counts of felony murder and the underlying charges of
armed robbery and aggravated assault. The trial court then entered an order
of nolle prosequi on the firearm possession count and the associated felony
murder count, which had been bifurcated for trial. On August 27, 2018, the
trial court sentenced Appellant to serve life in prison for felony murder based
on armed robbery. The felony murder verdict based on aggravated assault,
1. The evidence at trial showed the following. On November
11 and 12, 2016, Appellant was communicating via Facebook with
an associate named Shawn “Face” Thomas, who was trying to find a
gun for Appellant to purchase. Thomas messaged Appellant about
different types of guns that were available and their prices, and
Appellant responded, “I gotta make something shake now.” Thomas
messaged back saying, “told you I was going to find you one,” and
Appellant replied, “I’m going to try to make a play.”
Bryant worked a regular job in a warehouse but also sold
marijuana on the side. On Tuesday, November 22, 2016, someone
listed in his cell phone only as “Check” sent Bryant a text message
at 10:02 a.m. saying, “Gotta play for two zips.” Bryant replied that
which the trial court purported to merge, was actually vacated by operation of
law, see Stewart v. State, 299 Ga. 622, 627 (
791 SE2d 61) (2016), and the armed
robbery and aggravated assault verdicts merged, see Long v. State,
287 Ga.
886, 888-889 & n.2 (
700 SE2d 399) (2010). On August 29, 2018, Appellant filed
a motion for new trial, which he amended with new counsel on January 15 and
March 7, 2019. After an evidentiary hearing, on April 29, 2019, the trial court
denied the motion. Appellant filed a timely notice of appeal. Following the trial
court’s transmission of the record, on January 7, 2020, the case was docketed
in this Court to the April 2020 term. On March 6, 2020, the State filed an
untimely request for oral argument, which this Court denied. See Supreme
Court Rule 51 (1) (“No extensions of the time for filing a request for oral
argument will be allowed.”).
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he was at work. Check asked what time Bryant got off and said that
he would “just tell him [to] hit u up when u get off.” Bryant
responded that he got off at “5,” and Check said that he would tell
the person to contact Bryant “at 6.” Bryant told Check to make sure
to “tell him to text first.”
At 6:08 p.m., Appellant sent Bryant a text message introducing
himself as “[B]lack” and saying that “[C]heck told me to text u about
them 2.” Appellant and Bryant arranged to meet up in a pharmacy
parking lot in Gwinnett County shortly after 7:30 p.m. When Bryant
arrived, he backed his car into a parking space across from the
pharmacy’s well-lit entrance. Bryant had a Glock .45, which he got
from Anthony Tucker, who had known Bryant since middle school
and who still saw Bryant four or five times a week. According to
Tucker, the Glock .45 was Bryant’s only gun, and every time that
Tucker was in Bryant’s car, including the previous Saturday, Bryant
had the Glock .45 tucked between the driver’s seat and the center
console.
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At 7:37 p.m., Bryant opened a text message from Appellant
saying that Appellant was walking up to the pharmacy. At 7:40 p.m.,
a pharmacy surveillance camera recorded Appellant walking
casually up to Bryant’s car, opening the front passenger-side door,
and getting inside. A little more than a minute later, the
surveillance camera recorded Appellant getting out of Bryant’s car
holding a gun in his right hand, closing the door, and running away
with what appeared to be items stuffed into the left pocket of his
jacket. A few moments later, the surveillance camera recorded
Bryant on the driver side of his car walking a few steps and dropping
his cell phone before collapsing onto the pavement.
At around 7:45 p.m., Gwinnett County Police Department
(GCPD) officers were dispatched to the pharmacy in response to a
911 call. An officer found Bryant lying on his back, shaking, with
blood coming out of his mouth. Bryant was not breathing, and his
pulse was faint. Paramedics soon arrived and took Bryant to the
hospital, where he was pronounced dead. Bryant had no marijuana
or firearms on his person and a single dollar bill in his wallet. The
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police found two empty 9mm cartridge cases in Bryant’s car but no
marijuana, firearms, or money. Bryant’s Glock .45 was never
located.
The medical examiner who performed the autopsy on Bryant’s
body determined that Bryant had been shot twice. One bullet
entered his right side and fractured a rib before coming to rest in his
left flank, and the other bullet entered the top back of his right
shoulder and traveled in a downward trajectory through several
vital organs before coming to rest in his small intestine. Based on
the entry points of the bullets, their wound paths through the body,
the number of shots fired, and the physical evidence that both shots
were fired at close but not contact range, the medical examiner
concluded that Bryant’s injuries were not self-inflicted. A GBI
firearms and tool mark examiner determined that the two bullets
removed from Bryant’s body during the autopsy and the two
cartridge cases recovered from his car were all 9mm and that the
bullets could not have been fired from a Glock pistol.
Corporal Micah Hegwood of the GCPD was assigned as the lead
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detective. He obtained the access code to Bryant’s cell phone from
Bryant’s family and saw the text message exchange between
Appellant and Bryant that led up to the shooting. Corporal Hegwood
tried to ping Appellant’s cell phone, but it had been turned off, and
within a couple of hours of the shooting, Appellant contacted his cell
phone provider and changed his cell phone number.
On the day after the shooting, Appellant started making
arrangements to leave Gwinnett County. Two days later, he was in
Augusta and messaged a contact on Facebook to say that he “came
early,” and the next day, he messaged his girlfriend saying, “please
understand I had to go right away.” Several days later, he sent his
girlfriend a message saying that he was going to be back soon but
had to “stay low” because he was “all on the news.” He spent the next
several weeks in Augusta.
On January 12, 2017, Appellant was located at a hotel in
Gwinnett County and taken into custody, and Corporal Hegwood
and another detective interviewed him at police headquarters. The
interview was video recorded, and the recording was later played for
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the jury. At first, Appellant said that he was unaware that there had
been a shooting at the pharmacy, denied seeing anything about it on
the news, and claimed that he sold his cell phone on the day of the
shooting “at probably like 10:00 a.m.” The detectives told Appellant
that they had evidence proving that he was not being honest with
them and left him alone in the interview room. After about five
minutes, Appellant knocked on the door and said that he wanted to
tell the detectives what happened because he did not commit a
murder, and the detectives returned to the interview room.
Appellant then changed his story. Appellant admitted that he
knew about the shooting at the pharmacy, that he did “cancel” his
cell phone, and that he got a new phone the day after the shooting.
Appellant said that on the evening of the shooting, he was at Face’s
apartment near the pharmacy with Face, Check, and another man
when they decided to chip in together to buy marijuana. Appellant
claimed that he gave his cell phone to Face to arrange the purchase;
that the four of them walked together to a gas station across the
street from the pharmacy; that he went into the gas station
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convenience store to buy cigarillos while Face, Check, and the other
man went across the street to get the marijuana; that he heard
gunshots across the street and saw Face, Check, and the other man
running from the pharmacy parking lot; and that he then met up
with Face, Check, and the other man back at Face’s apartment.
According to Appellant, Face said that someone got shot, and
Appellant responded by asking where the marijuana was. Appellant
claimed that they had seven grams of marijuana and that he did not
ask for his money back because “I did get my weed.” The detectives
told Appellant that they knew that Face had gotten Appellant a gun,
which Appellant denied, stating that he did not have the money to
buy a gun. He acknowledged that he was “looking for a gun” but
claimed that he never found one. The detectives told Appellant that
surveillance footage from the pharmacy contradicted his story.
After a break, Appellant changed his story again, telling the
detectives, “I’m fixing to tell you the truth right now. Have a seat.”
This time, Appellant admitted that he went alone to the pharmacy
to meet Bryant to purchase the marijuana and that he was in
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Bryant’s car when Bryant was shot. According to Appellant, Check
said that a friend had a “zip” of marijuana, which sells for $185, but
Appellant had only $75 or $85, so Appellant said that he would go
up and “get a seven,” meaning seven grams of marijuana. Appellant
denied sending any of the texts from his cell phone to Bryant leading
up to the shooting, stating that Face and Check sent all the texts.
Appellant claimed that when he got into Bryant’s car, Bryant
handed him the marijuana before any money was exchanged; he
asked if Bryant was trying to rip him off; and Bryant said that he
did not have a scale to weigh the marijuana and accused Appellant
of trying to act like Appellant was in a gang.
Appellant admitted that he got aggressive with Bryant but said
that it was because Bryant got aggressive with him. Appellant
stated that Bryant pulled a 9mm gun from his side and pointed it at
Appellant, that Appellant grabbed Bryant’s hand and the gun, and
that the gun “went off” several times. Appellant also stated that his
finger never touched the gun’s trigger, although he said at one point
that his hand “might have” pushed Bryant’s finger while it was on
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the trigger. Appellant was adamant that he did not shoot Bryant
and that Bryant shot himself. Appellant admitted taking the 9mm
gun and Bryant’s marijuana when he got out of the car, claiming
that the gun was in his left hand and the marijuana was in his right
hand. Corporal Hegwood tried to get Appellant to tell him the
location of the 9mm gun because it was connected to the murder.
Appellant insisted that he did not know where it was, although he
said later in the interview that Face did not have it.
Appellant did not testify or present any other evidence. The
defense theory was that Bryant had a 9mm pistol in his car where
he usually kept his Glock .45 and pulled it on Appellant, that
Appellant grabbed Bryant’s hand to keep Bryant from shooting him,
and that during a struggle over the gun, the gun twice fired
accidentally, striking Bryant. The trial court instructed the jury on
accident but declined Appellant’s written request to instruct the jury
on justification based on self-defense, citing the Court of Appeals’
decision in McClure v. State, 347 Ga. App. 68 (
815 SE2d 313) (2018)
10
(McClure I), which this Court later vacated. See McClure v. State,
306 Ga. 856 (
834 SE2d 96) (2019) (McClure II).2
When viewed in the light most favorable to the verdicts, the
evidence presented at trial and summarized above was sufficient as
a matter of constitutional due process to authorize a rational jury to
find Appellant guilty beyond a reasonable doubt of felony murder
based on armed robbery. See Jackson v. Virginia, 443 U. S. 307, 319
(
99 SCt 2781, 61 LE2d 560) (1979). See also Eberhart v. State,
307
Ga. 254, 262 (
835 SE2d 192) (2019) (explaining that the jury is free
to reject a claim of accident, and that whether the acts charged were
committed “by accident [is] a question for the jury”); 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 OCGA § 16-2-2 says: “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.” As we
have previously explained, “This 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 (
734 SE2d 50) (2012).
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2. Appellant claims that his felony murder conviction on
Count 2 of the indictment must be vacated because that count did
not allege the essential elements of the underlying offense of armed
robbery. This claim is a challenge to the form of the indictment. See
Reed v. State, 291 Ga. 10, 11 (
727 SE2d 112) (2012) (holding that a
claim that a felony murder count fails to allege the essential
elements of the predicate offense “is, in essence, a special demurrer
seeking greater specificity with regard to the predicate felony”
(citation and punctuation omitted)). Appellant waived this claim by
failing to raise it before trial in a timely filed special demurrer. See
id. See also OCGA §§ 17-7-110 (“All pretrial motions, including
demurrers and special pleas, shall be filed within ten days after the
date of arraignment, unless the time for filing is extended by the
court.”), 17-7-113 (“All exceptions which go merely to the form of an
indictment or accusation shall be made before trial.”).
3. Appellant also claims that the trial court erred in relying
on the Court of Appeals’ decision in McClure I, which this Court later
vacated in McClure II, to deny his written request to instruct the
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jury on the affirmative defense of justification based on self-defense.
The State responds that an instruction on self-defense was not
adjusted to the evidence, because there was not even slight evidence
that Appellant shot Bryant in self-defense. Pretermitting these
issues, we conclude that the error, if any, was harmless.
“‘The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.’” Smith v. State, 299 Ga. 424, 432 (
788 SE2d 433) (2016)
(citation omitted). “In determining whether trial court error was
harmless, we review the record de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as opposed to
viewing it all in the light most favorable to the jury’s verdict.”
Peoples v. State,
295 Ga. 44, 55 (
757 SE2d 646) (2014) (citation and
punctuation omitted). Where a claim of justification based on self-
defense “‘is supported by only the slightest evidence and . . . is
inconsistent with the defendant’s own account of the events . . . ,’ the
failure to give a charge on the defense generally will be harmless.”
Guerrero v. State,
307 Ga. 287, 288-289 (
835 SE2d 608) (2019)
13
(citation omitted).
Although generally “a person is justified in using force which
is intended or likely to cause death or great bodily harm . . . if he . . .
reasonably believes that such force is necessary to prevent death or
great bodily injury to himself[,]” OCGA § 16-3-21 (a), “[a] person is
not justified in using” such force “if he . . . [i]s attempting to commit,
committing, or fleeing after the commission or attempted
commission of a felony.” OCGA § 16-3-21 (b) (2). Thus, a jury
instruction on justification based on self-defense would have
included an admonition that Appellant was not justified if he was
committing or attempting to commit a felony. By his own account,
Appellant was purchasing marijuana, or at least attempting to
purchase marijuana, when Bryant was shot.3
Purchasing marijuana is a felony, regardless of the amount of
marijuana involved. See OCGA § 16-13-30 (j) (making it a felony to
3 Appellant claimed that the gun went off accidentally and denied
shooting Bryant, although that was inconsistent with forensic evidence.
14
purchase marijuana).4 See also State v. Jackson, 271 Ga. 5, 5 (
515
SE2d 386) (1999) (“Under OCGA § 16-13-30 (j) (2), conviction of this
crime [i.e., purchasing marijuana] would result in felony sentencing
even though the amount of marijuana that [the defendant] allegedly
purchased is less than one ounce.”); Johnson v. State,
296 Ga. App.
697, 698 (
675 SE2d 588) (2009) (“[T]he quantity of marijuana
purchased is not an element of the crime of purchasing marijuana.”
(emphasis in original)). Thus, even under Appellant’s own account
of the events, he was attempting to commit or committing a felony
at the time of the shooting. Accordingly, it is highly probable that
any error in denying Appellant’s request to instruct the jury on
justification based on self-defense did not affect the verdicts and was
4 OCGA § 16-13-30 (j) says:
(1) It shall be unlawful for any person to possess, have under his
or her control, manufacture, deliver, distribute, dispense,
administer, purchase, sell, or possess with intent to
distribute marijuana.
(2) Except as otherwise provided in subsection (c) of Code
Section 16-13-31 [i.e., trafficking marijuana] or in Code
Section 16-13-2 [i.e., possession of one ounce or less of
marijuana], any person who violates this subsection shall be
guilty of a felony and, upon conviction thereof, shall be
punished by imprisonment for not less than one year nor
more than ten years.
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therefore harmless. See Bannister v. State, 306 Ga. 289, 292 (
830
SE2d 79) (2019) (“There was also evidence that Appellant was
engaged in a felony drug deal at the time of the shooting, which
would preclude his self-defense claim, as the jury was properly
instructed.” (citing OCGA § 16-3-21 (b) (2))); Starks v. State,
304 Ga.
308, 312 (
818 SE2d 507) (2018) (“Because there is no dispute that
[the defendant] shot [the alleged victim] while committing two
felonies, he could not claim self-defense, and the evidence therefore
was overwhelming.”). See also Reynolds v. State,
275 Ga. 548, 549
(
569 SE2d 847) (2002) (“Even under [the defendant’s] version of the
events, he was a party to an armed robbery and thus, the evidence
did not show that he was justified in the use of deadly force. Because
the evidence did not support the charge, the trial court did not err
in failing to give it.”).
Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.
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Decided October 19, 2020 – Reconsideration denied November
16, 2020.
Murder. Gwinnett Superior Court. Before Judge Conner.
Frances C. Kuo, for appellant.
Daniel J. Porter, District Attorney, Christopher L. Lewis,
Samuel R. d’Entremont, Assistant District Attorneys; Christopher
M. Carr, Attorney General, Patricia B. Attaway GeneralBurton,
Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Michael A. Oldham, Assistant Attorney General,
for appellee.
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