Manning v. State

Decision Date21 May 2018
Docket NumberS18A0369
Citation814 S.E.2d 730
Parties MANNING v. The STATE.
CourtGeorgia Supreme Court

David D. Marshall, LAW OFFICE OF DAVID D. MARSHALL, 2550 Sandy Plains Road, Suite 225, PMB 349, Marietta, Georgia 30066, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Anna Green Cross, Deputy Chief A.D.A., Lenny I. Krick, A.D.A., Sherry Boston, District Attorney, DEKALB COUNTY DISTRICT ATTORNEY'S OFFICE, 556 North McDonough Street, Suite 700, Decatur, Georgia 30030, for Appellee.

Benham, Justice.

Appellant Marvin Charlton Manning was charged with malice murder, two counts of felony murder, and other offenses arising out of the shooting death of Jimmy Sims. The jury found Manning not guilty of malice murder but found him guilty of the remaining charges.1 At trial, the victim’s friend Demont Shorter testified that the victim accompanied him when he drove his grandmother’s car to a gas station. After parking the car near the gas station store, the two went into the store together. Shorter testified he heard the victim speaking on his cell phone inside in a normal voice and the victim did not appear to be angry or upset. Shorter saw the victim exit the store, return to the car, and sit in the front passenger seat with the door open. Shorter then observed a person he identified at trial as Manning standing next to the car and pointing a gun at the victim through the open car door. Another person standing near Manning was pointing a gun at the victim as well, as if he were covering for Manning. Shorter commenced exiting the store and heard the victim yell, "Damn, brother, you going to do me like that?"

Another witness who was at the gas station at the time of these events testified he saw a man standing next to the car in which the victim was sitting and heard that man say something to the effect of, "You think I’m mother f– – – – – – playing around about my money!" This witness also observed another person standing behind the man who made that statement. According to this witness, the man who made the statement pulled out a gun and immediately started firing it at the victim. He was standing up while shooting into the car, and the witness believed that this man fired the first shot. The victim shot back at the man and wounded


When Shorter exited the store he found Manning lying on the ground near the car. The victim was slumped out of the car, and Shorter pulled the victim out onto the ground. A police officer who happened to be in the neighborhood in his patrol car heard gunshots and drove immediately to the scene. He testified that a revolver containing five spent rounds was found on the ground next to Manning and $424 in cash was found on the ground near the vehicle. The interior panel from the front passenger side door apparently had been pulled away and was also laying on the ground. The other man who had been standing near Manning fled the scene. The victim died from multiple gunshot wounds

after being transported to the hospital. A crime scene analyst testified for the defense that the shots fired from the victim’s gun were fired in a downward angle, and that four of the five shots fired from Manning’s gun were fired upward. He therefore concluded Manning was on the ground shooting up.

1. Appellant raised justification as a defense, and he argues that based upon the testimony of the witnesses and other evidence, it cannot be determined who fired the first shot. Accordingly, appellant challenges the sufficiency of the evidence to support the convictions. On appeal, however, the evidence must be viewed in the light most favorable to supporting the verdict, and this Court "defers to the jury’s assessment of the weight and credibility of the evidence." Mosby v. State , 300 Ga. 450, 452 (1), 796 S.E.2d 277 (2017). The trial court instructed the jury on self-defense and justification. The jury was not required, however, to conclude appellant acted in self-defense where, as here, the State presented evidence to refute that defense. See Blackmon v. State , 302 Ga. 173, 174-175 (1) (b), 805 S.E.2d 899 (2017) ; Pridgett v. State , 290 Ga. 365, 366, 720 S.E.2d 639 (2012).

In this case, one witness heard appellant make threatening remarks to the victim just prior to seeing appellant pull a gun and commence shooting. Another witness heard the victim exclaim, before the shooting started, "[Y]ou going to do me like that?" From the testimony of both witnesses, a reasonable trier of fact could conclude another man appeared to be acting in concert with appellant to threaten the victim at gunpoint. Such evidence was sufficient to permit the jury to reject appellant’s claim that he was acting in self-defense when he shot the victim, and thus was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Batten v. State , 295 Ga. 442, 444 (1), 761 S.E.2d 70 (2014) (where two witnesses heard appellant’s threats and eyewitnesses saw appellant shoot the victim). Accordingly, applying the standard set forth in Jackson v. Virginia ,2 we reject appellant’s challenge to the sufficiency of the evidence.

2. Prior to trial, the State filed a written request for leave to introduce evidence of appellant’s 2008 convictions for aggravated assault and terroristic threats involving a drive-by shooting at the home of a person who appellant believed had identified him to police as a suspect in a burglary, as well as a threat to kill another person who appellant also believed had turned him in to police for that offense. Appellant opposed the introduction of this evidence. At the hearing on this request, the State asserted that the evidence of the convictions for these prior criminal acts was admissible pursuant to OCGA § 24-4-404 (b) (Rule 404 (b) )3 in order to prove motive and intent with respect to the charged offenses, as well as to refute appellant’s self-defense claim. The trial court granted the State’s request on the ground that the evidence of the prior convictions was relevant to the issue of intent. At trial, a witness testified regarding the circumstances surrounding these prior acts, and a certified copy of the appellant’s convictions for these crimes was admitted into evidence. The trial court gave limiting instructions immediately before the witness testified about the prior crimes and again during the final charge to the jury. In both instances the court instructed the jury that it was permitted to consider the State’s evidence of other acts allegedly committed by the accused for the limited purpose of determining the issue of the accused’s intent with respect to the crimes for which he was being tried. Appellant asserts the trial court committed harmful error in admitting this Rule 404 (b) evidence in that the evidence of commission of these other bad acts was not relevant to establish intent in this case and was unduly prejudicial.

Since the enactment of the new Evidence Code, this Court has been called upon in a number of cases to examine the method by which lower courts are to determine the admissibility of evidence offered under Rule 404 (b) of other acts committed by the accused to prove intent. See, e.g., Brown v. State , 303 Ga. 158 (2), 810 S.E.2d 145 (2018) ; Jones v. State , 301 Ga. 544, 802 S.E.2d 234 (2017) ; Parks v. State , 300 Ga. 303, 305-308 (2), 794 S.E.2d 623 (2016) ; Olds v. State , 299 Ga. 65, 69-76 (2), 786 S.E.2d 633 (2016)

. "A trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Jones , 297 Ga. 156, 159 (1), 773 S.E.2d 170 (2015). For other acts evidence to be admissible, the moving party must satisfy a three-pronged test by showing: (1) that the evidence is relevant to an issue other than the defendant’s character, (2) that the probative value is not substantially outweighed by undue prejudice, and (3) that there is sufficient proof from which the jury could find the defendant committed the other act. See Booth v. State , 301 Ga. 678, 682 (3), 804 S.E.2d 104 (2017).

The test for determining whether evidence is relevant to an issue other than a defendant’s character, to satisfy the first prong of Rule 404 (b), is based on OCGA § 24-4-401 (Rule 401). Rule 401 defines "relevant evidence" as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." To determine whether the second prong of Rule 404 (b) is satisfied, we look to OCGA § 24-4-403 (Rule 403), which provides that even "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Appellant does not challenge the admission of his prior convictions based upon the third prong of the Rule 404 (b) test. He does, however, challenge the admission of this evidence on the ground of relevance and prejudice.

Appellant argues that the prior conviction for aggravated assault fails to satisfy the test for relevance with respect to the element of intent required to prove the crime charged. He also asserts that the probative value of the other act evidence was substantially outweighed by undue...

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