McIver v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 30, 2022
S22A0093. McIVER v. THE STATE.
BOGGS, Presiding Justice.
At a 2018 jury trial, Claud Lee “Tex” McIver III was convicted
of felony murder and other crimes arising out of the shooting death
of his wife, Diane McIver. 1 He appeals, asserting among other
enumerations of error that the trial court erred in refusing his
1The shooting occurred on September 25, 2016. McIver was originally
indicted in April 2017; on August 22, 2017, he was reindicted for malice murder
(Count 1), felony murder (Count 2), aggravated assault (Count 3), possession
of a firearm during the commission of a felony (Count 4), and three counts of
influencing a witness (Counts 5-7). McIver was tried before a jury from March
5 to April 23, 2018. The trial court granted a directed verdict of acquittal as to
two counts of influencing a witness, and the jury found McIver not guilty of
malice murder but guilty of felony murder, aggravated assault, the firearm
possession charge, and the remaining count of influencing a witness. On May
23, 2018, McIver was sentenced to serve life in prison for felony murder, five
years in prison for influencing a witness concurrently with the felony murder
conviction, and a suspended concurrent sentence of five years on the firearm
charge. The aggravated assault merged with the felony murder count. McIver
filed a timely motion for new trial, which was amended on February 3, 2020,
and March 10, 2020. After a hearing on October 23, 2020, the motion was
denied on July 2, 2021. McIver’s notice of appeal was filed on July 6, 2021, and
amended on July 13, 2021. The case was docketed in this Court for the term
beginning in December 2021, and orally argued on January 19, 2022.
request to charge the jury on the lesser grade of involuntary
manslaughter under OCGA § 16-5-3 (b) and in allowing the State to
introduce allegedly inadmissible and prejudicial evidence and make
improper comments during closing argument.
We conclude that the trial court erred in refusing McIver’s
request to charge on the lesser grade of involuntary manslaughter,
because the charge was authorized by law and some evidence
supported the giving of the charge. We further conclude that the
failure to give the charge was not harmless error, because we cannot
say that it is highly probable that this error did not contribute to the
jury’s verdicts. We therefore reverse McIver’s convictions for felony
murder and possession of a firearm in the commission of a felony. 2
We do not decide issues that are unlikely to recur if the State elects
to retry McIver, but we do address certain evidentiary issues. We
see no abuse of discretion in admitting some of the challenged
evidence, but other evidence lacked relevance or its probative value
2 McIver does not enumerate any error on appeal with respect to his
conviction for influencing a witness, which is therefore affirmed.
2
was substantially outweighed by the danger of unfair prejudice, so
that unless the evidentiary posture changes for any retrial, that
evidence should not be admitted again.
1. The evidence at trial.3
The evidence presented at trial showed the following: Late in
the evening of September 25, 2016, McIver, Diane, and Diane’s close
friend, Dani Jo Carter, were on their way back from a weekend at
the McIvers’ property in Putnam County, driving to Diane’s
condominium in the Buckhead area of Atlanta after a stop for dinner
in Conyers. Carter testified that she was driving, Diane was in the
front passenger seat, and McIver was in the rear passenger seat, at
times conversing and at other times asleep. Carter was not aware of
any argument or disagreement between Diane and McIver that
weekend or during the drive.
When they got onto the Downtown Connector in Atlanta, traffic
3 Because in this case we must consider whether the trial court’s error
was harmful and therefore requires reversal, we review the evidence in some
detail and not only in the light most favorable to the jury’s verdicts. See Strong
v. State, 309 Ga. 295, 296 n.2 (845 SE2d 653) (2020).
3
was heavy, and Carter said they needed to get off the interstate and
go up Peachtree Street. Diane said something to McIver, but he did
not respond, and Diane told Carter to get off at the Edgewood
Avenue exit. After they exited the interstate, McIver said, “Girls, I
wish you hadn’t done this. This is a really bad area,” and asked
Diane to hand him his gun from the center console. Diane handed
him the gun, a .38-caliber revolver, which was not in its holster,
which was also in the center console, but rather in a plastic grocery
bag.
Diane instructed Carter to turn onto Piedmont Road and
continue north. Carter assumed that McIver had fallen asleep again,
because he did not join in their conversation. Sometime later, they
were stopped at a traffic light on Piedmont Road, at 14th Street,
when Carter heard several clicks and asked what Diane was doing;
she responded that she was locking the doors. At that moment
Carter heard a loud “boom” and Diane swung around and asked,
“Tex, what did you do?” McIver responded that “the gun discharged.”
Carter saw the gun in McIver’s hand, pointing down, still in the
4
plastic bag. The bullet passed through the back of the front
passenger seat, striking Diane in the back.
McIver instructed Carter to drive to Emory University
Hospital on Clifton Road.4 At the hospital, when asked how the
shooting occurred, Diane told doctors it was an accident. Carter told
the police it was “a horrible accident.” Diane died during surgery as
a result of internal injuries to her spine, pancreas, kidney, and
stomach.
According to some witnesses at the hospital, at times McIver
did not appear to be upset or grieving. The State presented evidence
that McIver told the police that he fell asleep with the gun in his lap
and the gun fired, and that he made statements at the hospital that
the gun discharged accidentally when the car went over a bump. The
State also presented testimony from a nurse who was not involved
4 Although the State argued at trial that Emory Hospital is farther than
Grady Memorial Hospital from the scene of the shooting, the actual distances
were never established. Moreover, while evidence was presented that Grady is
better equipped to treat gunshot wounds, during oral argument in this Court,
the State’s counsel acknowledged that no evidence was presented that McIver
believed that Grady was so equipped or that he intentionally directed Carter
to drive to Emory to avoid going to Grady.
5
in treating Diane, who said that she was passing by in the hospital
hallway when she overheard McIver say, “I was cleaning my gun in
the bathroom when I shot her.” McIver later told a friend that there
had been a “car accident” and Diane had died. He made several
statements within the hearing of police officers and others
indicating that he “could not go to jail,” that he knew “how these
things can go down,” and that “this doesn’t look good.” McIver also
told Carter to say that she had just come to the hospital as a family
friend, but she told him she could not lie.
A firearms examiner for the State determined that McIver’s
double-action .38-caliber revolver was in good working order and,
due to the internal hammer block, could not have discharged
without the trigger being pulled. The trigger pull was either 2 ¼
pounds with the hammer cocked or 12 ¼ pounds with the hammer
uncocked. An accident reconstruction expert for the State examined
the pistol and the vehicle and testified, based on the trajectory of the
bullet, that McIver did not have the pistol in his lap but was holding
the pistol in a raised position, above the plane of his lap, at the time
6
it was fired. But an expert for the defense also examined the pistol
and the vehicle and concluded, to the contrary, that the trajectory
and the limited space in the rear seat made it “physically
impossible” for the gun to have been held upright, and that the
bullet’s path showed that the gun was lying on its side resting on
McIver’s lap when it discharged. McIver also elicited testimony from
a State’s witness that McIver suffered from a sleep disorder that
could cause him to make involuntary movements if he was startled
awake.
The State presented a substantial amount of evidence
regarding the McIvers’ financial circumstances. McIver and Diane
were married in 2005, a second marriage for both of them. McIver
was a partner at a large Atlanta law firm; Diane was wealthy and
an active business owner, the president of one real estate business
and an owner or part owner of three other businesses. The McIvers
kept their business interests and sources of income separate. Diane
owned a condominium in Buckhead, and the McIvers owned a rural
property in Putnam County, referred to as “the ranch,” where they
7
spent most weekends. They covered the expenses for their own
properties, but Diane funded some improvements to the ranch.
Before their marriage, Diane loaned McIver $750,000. At the time
of the marriage, McIver gave Diane her ownership interest in the
ranch, which they held as joint tenants with right of survivorship.
In 2011, one of Diane’s companies loaned McIver an additional
$350,000 through a promissory note secured by the ranch property.
The note was renewed in 2014, payable in 2017 or on demand within
90 days. If the property was foreclosed on, Diane as sole owner of the
lending company could have deeded full title to the property to
herself.
McIver executed a will in 2005, providing that his interest in
the ranch would go to Diane if she survived him, and the residue of
the estate would go to one of his adult children. Diane executed a
will in 2006 that contained substantial bequests to McIver and
established a trust for his benefit. Diane had no children but was
very close to the McIvers’ godson. Her will was executed before their
godson was born and so did not include him, but several witnesses
8
testified that she wished to leave the ranch to him. The State
presented evidence that McIver and Diane disagreed about how the
ranch should be disposed of after both of them died. Codicils to
Diane’s will were prepared in 2007 and in 2009 or 2010 but were
never executed.5 McIver executed a codicil to his will in 2009, which
reiterated that Diane was to receive all of his interest in the ranch
if he predeceased her. An attorney testified that between 2009 and
2011, McIver and Diane discussed executing new wills with him.
McIver later made several appointments for the couple to discuss
the contents of the new wills, but cancelled them. The attorney
testified that no new wills were ever prepared. 6
5 The State elicited testimony from a neighbor and friend of the McIvers
that approximately three years before Diane’s death, she told the witness that
she had made changes to her will to remove some beneficiaries. Diane’s
attorney testified that he had prepared a codicil in 2007 to remove a female
friend with whom Diane had had a falling out, and to add several individuals
including the McIvers’ godson as beneficiaries, but that codicil was never
executed. Neither of the two attorneys who worked for the McIvers on estate
matters testified to the contents of the second codicil, and it was not admitted
into evidence.
6 No testimony was presented as to the contents of any new will, and no
such will was ever found. The only evidence regarding even the existence of a
second will was the testimony of a witness who worked in Diane’s office that
approximately two years before Diane’s death, Diane told the witness that a
9
The State also presented evidence suggesting that McIver was
experiencing financial difficulty as a result of his impending
retirement from his law firm. He had recently become an “income
partner,” which meant that he was paid a set salary rather than a
share of profits. His financial position had been worsening for
several years, and he had told friends that he did not have enough
money to cover expenses. The State presented testimony that Diane
had regularly transferred money to McIver, that he would have had
a negative cash flow but for those transfers, and that before Diane’s
death, McIver’s net worth was approximately $1.5 million, but after
her death, it increased to between $3.6 million and $6.9 million.
Several months after Diane’s death, McIver sold her furs, jewelry
and other personal items through an auction company. According to
the attorney for the estate, he recommended the sale to pay cash
bequests specified in Diane’s will, as well as expenses of and claims
document the witness had copied for her was “my new will.” The witness did
not look at the contents of the document, but she testified that it was
somewhere between two and ten pages long. Diane’s 2006 will was 19 pages
long, while the unexecuted 2007 codicil is 5 pages long.
10
against the estate.
The trial took place over a seven-week period in March and
April of 2018. The State asserted that McIver committed malice
murder and felony murder based on aggravated assault, while
McIver contended that Diane’s death was caused by an accident. The
jury was charged on the indicted crimes and also involuntary
manslaughter in the commission of an unlawful act as a lesser
included offense of malice murder and felony murder, but not on
involuntary manslaughter in the commission of a lawful act in an
unlawful manner as a lesser included offense. The jury deliberated
for more than four days, sending numerous notes to the trial court,
including a request to inspect the vehicle involved, which was
arranged. On the fifth day of deliberations, the jury sent a note
indicating that it was unable to reach a verdict as to intent on the
indicted counts of malice murder, felony murder, aggravated
assault, and influencing a witness. After an extended discussion
with counsel, the trial court gave the jury a slightly modified pattern
11
Allen charge. 7 The jury then returned its verdicts, finding McIver
not guilty of malice murder but guilty of felony murder, aggravated
assault, influencing a witness, and possession of a firearm in the
commission of a felony. 8
2. Refusal of requested charge on OCGA § 16-5-3 (b).
McIver contends that the trial court erred in refusing his
written request to instruct the jury on the lesser grade of
involuntary manslaughter pursuant to OCGA § 16-5-3 (b).9 We
7 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896);
Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.70.70
(4th ed. 2007) (Jury (Hung)).
8 The verdict form provided blanks for each count of the indictment, and
the jury was instructed that under “Count 1 (Murder)” and “Count 2 (Felony
murder),” it had the option for a finding of “Guilty of involuntary
manslaughter” as a lesser included offense, and both counts contained such a
blank. The jury did not mark either of those blanks.
9 OCGA § 16-5-3 provides in its entirety:
(a) 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. A person who
commits the offense of involuntary manslaughter in the
commission of an unlawful act, upon conviction thereof, shall be
punished by imprisonment for not less than one year nor more
than ten years.
(b) A person commits the offense of involuntary manslaughter in
the commission of a lawful act in an unlawful manner when he
causes the death of another human being without any intention to
12
agree.
The offense of involuntary manslaughter can be committed in
two ways: causing the death of another without any intention to do
so “by the commission of an unlawful act other than a felony,” OCGA
§ 16-5-3 (a), which is a felony, or “by the commission of a lawful act
in an unlawful manner likely to cause death or great bodily harm,”
OCGA § 16-5-3 (b), which is a misdemeanor.10
In extended discussions during the charge conference, the trial
court stated:
[W]e have three tiers of potential culpability. If the jury
were to find that Mr. McIver were merely criminally
negligent for holding a loaded gun pointed at his wife’s
do so, by the commission of a lawful act in an unlawful manner
likely to cause death or great bodily harm. A person who commits
the offense of involuntary manslaughter in the commission of a
lawful act in an unlawful manner, upon conviction thereof, shall
be punished as for a misdemeanor.
10 We note that, while the terms “felony” and “misdemeanor” are
sometimes used to distinguish the provisions of OCGA § 16-5-3 (a) and (b), that
terminology should not be used before the jury. See Johnson v. State, 261 Ga.
236, 239 (5) (404 SE2d 108) (1991). See also Paul M. Kurtz and Robert E.
Cleary, Jr., CRIMINAL OFFENSES AND DEFENSES IN GEORGIA 844 (2019 ed.)
(suggesting the terms “unlawful act” involuntary manslaughter and “criminal
negligence” involuntary manslaughter). Hereafter in this opinion, we will use
the statutory language of “unlawful act” and “unlawful manner” to
differentiate the two offenses.
13
back in a car, then we’d be talking about misdemeanor
involuntary manslaughter [i.e., OCGA § 16-5-3 (b)]. If it
is, in fact, [the crime of] reckless conduct, then it’s felony
involuntary manslaughter [i.e., OCGA § 16-5-3 (a)]. And
then if it was an intentional act, then it’s as charged.
But the night before closing arguments, the trial court informed the
parties that it would not give the instruction on the misdemeanor
form of involuntary manslaughter – the commission of a lawful act
in an unlawful manner. 11 With respect to the homicide counts, the
court instructed the jury on malice murder, felony murder based on
aggravated assault, unlawful act involuntary manslaughter under
OCGA § 16-5-3 (a) based upon the offense of “reckless conduct,” see
OCGA § 16-5-60 (b),12 and accident.
11 Before closing arguments began, the trial court noted that it had sent
the revised charge to counsel via email. McIver’s counsel objected to the
omission of an instruction on OCGA § 16-5-3 (b), asserting that reckless
conduct and negligent conduct were different, and the trial court noted that
“you and I disagree,” but gave no explanation.
12 OCGA § 16-5-60 (b) provides:
A person who causes bodily harm to or endangers the bodily safety
of another person by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or
endanger the safety of the other person and the disregard
constitutes a gross deviation from the standard of care which a
reasonable person would exercise in the situation is guilty of a
misdemeanor.
14
In its order denying McIver’s motion for new trial, the trial
court only briefly addressed the question of the jury instruction on
unlawful manner involuntary manslaughter:
Defendant, in his requests to charge, sought to have the
Court charge the jury on misdemeanor involuntary
manslaughter (O.C.G.A. § 16-5-3 (b)), arguing that some
evidence supported a finding that, in killing his wife,
Defendant engaged in a lawful act in an unlawful
manner. The Court found both that the record did not
support such a charge and that the pertinent case law
disallowed such a charge. See, e.g., Manzano v. State, 282
Ga. 557, 559 [(651 SE2d 661)] (2007). Having reviewed
the post-trial arguments of both parties, the Court
maintains the position articulated at trial that a charge
on misdemeanor involuntary manslaughter was
supported neither by the record nor existing precedent
and thus that is was not error to exclude such a charge
from the instructions provided to the jury.
McIver argues that there was, at a minimum, slight evidence
that he was engaged in a lawful act (which he describes as falling
asleep with a gun on his lap in the back seat of a vehicle) in an
unlawful manner (that is, in a criminally negligent manner likely to
cause death or great bodily harm) when the gun inadvertently
The amendment to the statute that will take effect on July 1, 2022 does not
alter the wording of subsection (b).
15
discharged and killed Diane. He therefore contends that the trial
court erred in denying his written request to charge the jury on
unlawful manner involuntary manslaughter. The State argues that
the trial court properly declined to instruct the jury on unlawful
manner involuntary manslaughter, relying upon decisions such as
Manzano to contend that any defendant who handles a gun with
fatal results, even if unintentional, “has necessarily committed the
misdemeanor of reckless conduct.” (Citations and punctuation
omitted.) 282 Ga. at 559 (3) (a).
To resolve this dispute, we must look first to the extensive
history of the law of involuntary manslaughter, including the
changes made by the General Assembly in altering that law and
other related statutes in its general revision of the Criminal Code in
1968. We must always consider statutory text in its context, “which
includes the structure and history of the text and the broader
context in which that text was enacted, including statutory and
decisional law that forms the legal background of the written text.”
(Citations and punctuation omitted.) Seals v. State, 311 Ga. 739,
16
740-741 (1) (860 SE2d 419) (2021).
We conclude from our review that Georgia has a long-
established, statutory homicide offense of involuntary
manslaughter, with two grades: first, the felony offense of
involuntary manslaughter in the commission of an unlawful act
other than a felony, and second, the misdemeanor offense of
involuntary manslaughter in performance of a lawful act but with
criminal negligence. This distinction was retained by the General
Assembly in the 1968 revision of the Criminal Code. We further
conclude that the element of criminal negligence in unlawful
manner involuntary manslaughter is distinguishable from ordinary
negligence on the one hand and from the mental state required for
statutory reckless conduct on the other, and that the law does not
forbid the giving of an instruction on unlawful manner involuntary
manslaughter in every case involving a firearm. Finally, slight
evidence authorizing the refused instruction was presented at trial,
and we cannot say that it is highly probable that the error did not
contribute to the jury’s verdict.
17
(a) History of the involuntary manslaughter statute.
The distinction in Georgia between the two grades of
involuntary manslaughter dates back to the 1816 Penal Code. See
Ga. L. 1816, p. 142. There, the offense of manslaughter was defined
as follows:
§ 5. Manslaughter, is homicide in the second degree;
manslaughter is the killing of a human creature without
malice, express or implied, and without any mixture of
deliberation whatever. It must be voluntary, upon a
sudden heat of passion; or involuntary, in the commission
of an unlawful act, or a lawful act without due caution and
circumspection.
After §§ 6 and 7, which further defined voluntary manslaughter and
its prescribed punishment, involuntary manslaughter was further
defined as follows:
§ 8. Involuntary manslaughter, shall consist in the
killing of a human being, without any intention to do so;
but in the commission of an unlawful act, or a lawful act,
which probably might produce such a consequence.
§ 9. Involuntary manslaughter, in the commission of
an unlawful act, shall be punished by confinement or
labor, or solitude, in the penitentiary, for a term not less
than six months, and not longer than three years.
§ 10. Involuntary manslaughter, in the commission
18
or performance of a lawful act, where there has not been
observed necessary discretion and caution, shall be
punished by confinement or labor, or solitude in the
penitentiary, for a term not less than three months, and
not longer than one year.
Ga. L. 1816 at pp. 147-148.
With the enactment of the 1817 Penal Code, § 8 of the
involuntary manslaughter statute was revised to include the first
reference to “unlawful manner,” as well as to add a provision in
effect describing felony murder:
Involuntary manslaughter, shall consist in the
killing of a human being, without any intention to do so;
but in the commission of an unlawful act, or a lawful act,
which probably might produce such a consequence, in an
unlawful manner: Provided always, that where such
involuntary killing shall happen in the commission of an
unlawful act, which in its consequences naturally tends
to destroy the life of a human being, or is committed in
the prosecution of a felonious or riotous intent, the offence
shall be deemed and adjudged to be murder. 13
Ga. L. 1817 at p. 96. See also Oliver H. Prince, A DIGEST OF THE
13 The second clause, as later modified by the 1833 Penal Code, was
removed in 1968 when a separate felony murder statute was enacted, now
OCGA § 16-5-1 (c). For a history of felony murder statutes in Georgia, see
generally Shivers v. State, 286 Ga. 422, 425 n.3 (1) (688 SE2d 622) (2010)
(Nahmias, J., concurring specially).
19
LAWS OF THE STATE OF GEORGIA 347 (1st ed. 1822).14 The language
used to define the elements of the two grades of involuntary
manslaughter was carried forward through subsequent codes
unchanged. Although the relevant code sections were revised in
some respects in the Code of 1933,15 they continued in force until the
14 Available at University of Georgia School of Law, Historical Georgia
Digests and Codes, https://digitalcommons.law.uga.edu/ga_code/6 .
15 Former 1817 Penal Code § 5 was enacted as Code of 1933 § 26-1006:
Manslaughter is the unlawful killing of a human creature, without
malice, either express or implied, and without any mixture of
deliberation whatever, which may be voluntary, upon a sudden
heat of passion, or involuntary, in the commission of an unlawful
act, or a lawful act without due caution and circumspection.
(Emphasis supplied).
Former 1817 Penal Code § 8 was enacted as Code of 1933 § 26-1009:
Involuntary manslaughter shall consist in the killing of a human
being, without any intention to do so, but in the commission of an
unlawful act, or a lawful act, which probably might produce such
a consequence, in an unlawful manner: Provided, that where such
involuntary killing shall happen in the commission of an unlawful
act which, in its consequences, naturally tends to destroy the life
of a human being, or is committed in the prosecution of a riotous
intent, or of a crime punishable by death or confinement in the
penitentiary, the offence shall be deemed and adjudged to be
murder. (Emphasis supplied.)
The Code of 1933 combined former 1817 Penal Code §§ 9 and 10 as Code of
1933 § 26-1010:
Punishment for involuntary manslaughter. — Involuntary
manslaughter, in the commission of an unlawful act, shall be
punished by confinement and labor in the penitentiary for not less
than one nor longer than three years. Involuntary manslaughter,
in the commission or performance of a lawful act, where there has
20
general revision of the Georgia criminal statutes in 1968.16
The 1968 revision was intended “to revise, classify, consolidate,
and supersede the present laws relating to crimes and the
punishment therefor and to establish new laws relating thereto” and
“to provide a new Criminal Code.” Ga. L. 1968, p. 1249. It was
initiated by the appointment of a Criminal Law Study Committee
tasked with revising the criminal statutes to address “problems
which have arisen due to ambiguities and inconsistencies in the
present law.” Ga. L. 1961, p. 96, 98; see also Patterson v. State, 299
Ga. 491, 505 (2) (b) (789 SE2d 175) (2016) (Blackwell, J., dissenting).
The 1968 Code consolidated the statutes pertaining to
manslaughter: it eliminated Code of 1933 § 26-1006 defining
manslaughter generally. It retained one section defining voluntary
manslaughter, Ga. Code Ann. § 26-1102, and one defining
involuntary manslaughter, Ga. Code Ann. § 26-1103 (a) and (b). See
not been observed necessary discretion and caution, shall be
punished as for a misdemeanor. (Emphasis supplied.)
16 The maximum penalty for unlawful act involuntary manslaughter was
increased in 1951 to imprisonment for five years. See Ga. L. 1951, p. 737.
21
Ga. L. 1968 at pp. 1276-1277.17 It also removed the language in the
involuntary manslaughter statute referring to felony murder, and
enacted a separate statute defining felony murder, Ga. Code Ann. §
26-1101 (b), now OCGA § 16-5-1 (c). See Ga. L. 1968 at p. 1276.18
Significantly for our analysis, in the 1968 revision the General
Assembly also created a new, misdemeanor offense, denominated
“reckless conduct,” Ga. Code Ann. § 26-2910. See Ga. L. 1968 at pp.
1325-1326.19
17 When the Official Code of Georgia Annotated was adopted in 1982, the
1968 revision, Ga. Code Ann. § 26-1103, was carried forward as OCGA § 16-5-3.
The definitional language was unchanged, other than the removal of two
commas, but the language prescribing the penalty was reworded. The
maximum penalty for unlawful act involuntary manslaughter was increased
in 1984 to imprisonment for ten years. See Ga. L. 1984, p. 397.
18 Ga. Code Ann. § 26-1101 (a), unlawful act involuntary manslaughter,
further specified that the unlawful act must be “other than a felony,” removing
possible ambiguity or inconsistency with respect to the felony murder statute.
19 As originally enacted, Ga. Code Ann. § 26-2910 provided:
A person commits a misdemeanor when he causes bodily harm to
or endangers the bodily safety of another person by consciously
disregarding a substantial and unjustifiable risk that his act or
omission will cause the harm or endanger the safety, and the
disregard constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the situation.
Ga. Code Ann. § 26-2910 was carried forward into the Official Code of Georgia
Annotated as OCGA § 16-5-60. The text, as amended in 1988 and 2003, is now
found at OCGA § 16-5-60 (b), which, as noted above, provides:
A person who causes bodily harm to or endangers the bodily safety
22
(b) Statutory construction.
In interpreting statutes, we “presume that the General
Assembly meant what it said and said what it meant.” (Citations
and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a)
(751 SE2d 337) (2013). And in determining a statute’s meaning,
we apply the fundamental rules of statutory construction
that require us to construe the statute according to its
terms, to give words their plain and ordinary meaning,
and to avoid a construction that makes some language
mere surplusage. We must also seek to effectuate the
intent of the Georgia legislature. OCGA § 1-3-1 (a). In this
regard, in construing language in any one part of a
statute, a court should consider the entire scheme of the
statute and attempt to gather the legislative intent from
the statute as a whole.
(Citations and punctuation omitted.) Coates v. State, 304 Ga. 329,
330-331 (818 SE2d 622) (2018). “It is a basic rule of construction that
a statute . . . should be construed to make all its parts harmonize
and to give a sensible and intelligent effect to each part, as it is not
of another person by consciously disregarding a substantial and
unjustifiable risk that his act or omission will cause harm or
endanger the safety of the other person and the disregard
constitutes a gross deviation from the standard of care which a
reasonable person would exercise in the situation is guilty of a
misdemeanor.
23
presumed that the legislature intended that any part would be
without meaning.” (Citation and punctuation omitted.) Gilbert v.
Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994). And
“[c]ertainly our legislature is presumed to enact statutes with full
knowledge of existing law, including court decisions.” (Citation and
punctuation omitted.) Roberts v. Cooper, 286 Ga. 657, 660 (691 SE2d
875) (2010).
Moreover, “[f]or context, we . . . look to the other provisions of
the same statute, the structure and history of the whole statute, and
the other law — constitutional, statutory, and common law alike —
that forms the legal background of the statutory provision in
question.” (Citations and punctuation omitted.) Tibbles v. Teachers
Retirement System of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527)
(2015). And it is “a core principle of statutory interpretation that
changes in statutory language generally indicate an intent to change
the meaning of the statute.” (Citations and punctuation omitted.)
Middleton v. State, 309 Ga. 337, 345 (3) (846 SE2d 73) (2020).
(c) The revision of the involuntary manslaughter statutes.
24
In the 1968 revision, the General Assembly retained the
distinction between involuntary manslaughter in the commission of
“an unlawful act” and in the commission of “a lawful act in an
unlawful manner.” But it removed the language “without due
caution and circumspection” and “where there has not been observed
necessary discretion and caution,” and altered “which probably
might produce such a consequence,” i.e., the death of another human
being, to “likely to cause death or great bodily harm.” Presuming
significance to these textual changes, as we must, we conclude that
the 1968 revision, true to its expressed aim, removed inconsistent or
ambiguous language that had defined the offense of unlawful
manner involuntary manslaughter in language that suggested mere
civil or ordinary negligence. 20
20For prior use of the same or similar language in civil contexts, see, e.g.,
Central of Ga. R. Co. v. Price, 121 Ga. 651, 655 (1) (49 SE 683) (1905) (in
personal injury action against railroad by employee, “it was for the jury to say
whether or not the plaintiff, on this occasion, acted with due caution and
circumspection”); Merchants’ Nat. Bank v. Carhart, 95 Ga. 394, 398 (2) (22 SE
628) (1894) (in action for negligent retention of bank cashier, bank required “to
show reasonable care and circumspection” in selecting and retaining
employee); Savannah, Fla. & W. R. Co. v. Slater, 92 Ga. 391 (1) (17 SE 350)
(1893) (headnote by the Court) (in personal injury action, describing negligence
25
This conclusion is also supported by the fact that, while the
pre-1968 Code provisions were in effect, this Court and the Court of
Appeals had considered the scope of the involuntary manslaughter
statutes and noted that, despite the inclusion of civil or ordinary
negligence language, the unlawful manner involuntary
manslaughter statute required something more than ordinary civil
negligence. See Geele v. State, 203 Ga. 369, 373 (47 SE2d 283) (1948)
(noting the statutory language in the involuntary manslaughter
statutes referring to “due caution and circumspection” and
“necessary discretion and caution” and the “culpable neglect”
language in Code of 1933 § 26-404, addressing otherwise criminal
conduct committed “by misfortune or accident”). 21 Geele cites a
of railroad employee in permitting wood to fall from locomotive tender or
“casting it from the tender without due caution and circumspection”); Eason v.
Crews, 88 Ga. App. 602, 615-616 (4) (77 SE2d 245) (1953) (charge of trial court
in personal injury action that children not bound “to exercise the discretion
and prudence necessary for their safety, with regard to dangerous agencies.”
(Punctuation omitted.)).
21 In Geele, the appellants, operators of the Winecoff Hotel in Atlanta,
were indicted for unlawful manner involuntary manslaughter after the hotel
burned on December 7, 1946. This Court reversed the trial court’s decision
overruling appellants’ demurrers, concluding that the indictment failed to
allege any crime. See 203 Ga. at 377.
26
number of earlier decisions such as Cain v. State, 55 Ga. App. 376,
379 (1) (190 SE 371) (1937), in which the Court of Appeals concluded
that “criminal negligence” and “culpable negligence” are
synonymous, and further concluded:
The degree of negligence to be shown on indictment for
manslaughter, where an unintentional killing is
established, is something more than is required on the
trial of an issue in a civil action. A want of due care, or a
failure to observe the rule of a prudent man, which
proximately produces an injury, will render one liable for
damages in a civil action; but to render one criminally
responsible there must be something more, culpable
negligence, which under our law is criminal negligence,
and is such recklessness or carelessness, resulting in
injury or death, as imports a thoughtless disregard of
consequences or a heedless indifference to the safety and
rights of others and a reasonable foresight that injury
would result.
(Citations omitted.) Id. at 379-380. See also Jordan v. State, 103 Ga.
App. 493, 494 (2) (120 SE2d 30) (1961) (in instructing jury on
unlawful manner involuntary manslaughter, “it is the better
practice to charge that it must result from criminal negligence,
which is something more than ordinary negligence which would
authorize a recovery in a civil action.” (Citations and punctuation
27
omitted.)).
In effect, the 1968 revision reconciled the involuntary
manslaughter statutes with the judicial gloss that had been placed
upon them by removing the references to ordinary negligence. It also
addressed the other concern raised in Geele by reconciling the
language in the statute defining what constitutes a “crime” with that
of the statute addressing misfortune or accident, removing the
reference to “culpable neglect” in the latter and substituting
“criminal negligence.” See Code of 1933 § 26-201 (“Definition of
crime or misdemeanor”);22 Ga. L. 1968 at p. 1269, enacting Ga. Code
Ann. § 26-601 (“Definition of Crime”).23 Compare Code of 1933 § 26-
404 (“Misfortune or accident as affecting liability”) 24 with Ga. L.
1968 at p. 1269, enacting Ga. Code Ann. § 26-602 (“Misfortune or
22 “A crime or misdemeanor shall consist in a violation of a public law, in
the commission of which there shall be a union or joint operation of act and
intention, or criminal negligence.”
23 “A crime is a violation of statute of this State in which there shall be a
union of [sic] joint operation of act, or omission to act, and intention, or criminal
negligence.”
24 “A person shall not be found guilty of any crime or misdemeanor
committed by misfortune or accident, and where it satisfactorily appears there
was no evil design, or intention, or culpable neglect.”
28
Accident Not a Crime”). 25
But despite these changes to the relevant statutes, and despite
the comments of the Criminal Law Study Committee questioning
the merits of the distinction, 26 the General Assembly retained the
separate unlawful act and unlawful manner provisions in the new
involuntary manslaughter statute. Moreover, the legislature
retained an unlawful manner involuntary manslaughter statute
despite enacting a new misdemeanor offense of “reckless conduct.”
Presuming that no part of the statutory scheme is without meaning,
and that the General Assembly sought “to avoid inconsistencies and
overlapping laws,” Patterson, 299 Ga. at 505 (2) (b) (Blackwell, J.,
dissenting), we conclude that the term “unlawful manner,” in the
25 “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, or intention, or criminal negligence.” Ga. Code Ann. §
26-602 was carried forward almost verbatim into the current Code as OCGA §
16-2-2, which provides: “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.”
26 See Ga. Code Ann., Committee Notes to Chapter 26-11, Criminal
Homicide p. 522 (Harrison Co. 1998) (referring to the distinction between
unlawful act and unlawful manner involuntary manslaughter in the past tense
and with disapproval); Kurtz, supra, pp. 844-845 n.716 (concluding that the
committee notes referred to a change that was proposed but not made).
29
involuntary manslaughter statute, requires a mens rea that is more
culpable than ordinary or civil negligence, but less culpable than the
mens rea required for the crime of “reckless conduct,” now codified
as OCGA § 16-5-60 (b). And, as discussed below, we also conclude,
based upon the body of relevant Georgia law, that the mens rea
required for unlawful manner involuntary manslaughter is
“criminal negligence.”
(d) Criminal negligence as an element of unlawful manner
involuntary manslaughter.
The term “criminal negligence” was not defined by statute until
2004, when the General Assembly added a definition to the Code
section defining a “crime.” See Ga. L. 2004, p. 57 (codified as OCGA
§ 16-2-1).27 Before that definition was provided, the Georgia courts
27 Subsection (b) of that Code section now provides: “Criminal negligence
is an act or failure to act which demonstrates a willful, wanton, or reckless
disregard for the safety of others who might be injured thereby.” Criminal
negligence is not in itself a crime, but appears in other definitions in the
Criminal Code. See, e.g., OCGA § 16-2-1 (a): “A ‘crime’ is a violation of a statute
of this state in which there is a joint operation of an act or omission to act and
intention or criminal negligence”; OCGA § 16-2-2: “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.” We hold today that it is likewise an element of unlawful manner
30
developed interpretations of the term that varied to some extent
depending upon the circumstances; for example, if the court was
considering whether a defendant’s conduct fell within the scope of
the “misfortune or accident” statute or whether the conduct fell
within one or the other grade of involuntary manslaughter. 28
Moreover, before 1968 there was no separate crime of “reckless
conduct” that courts were required to differentiate from criminal
negligence for purposes of unlawful manner involuntary
manslaughter, and indeed there was no statutory definition of
“criminal negligence” for some time thereafter. Therefore, when pre-
involuntary manslaughter.
28As LaFave and Scott have observed:
Though the legislatures and the courts have often made it clear
that criminal liability generally requires more fault than the
ordinary negligence which will do for tort liability, they have not
so often made it plain just what is required in addition to tort
negligence — greater risk, subjective awareness of the risk, or
both. Statutes are sometimes worded in terms of “gross negligence”
or “culpable negligence” or “criminal negligence,” without any
further definition of these terms . . . . The courts thus have had to
do their best with little guidance from the legislature, with varying
results.
Wayne R. LaFave & Austin W. Scott Jr., CRIMINAL LAW § 3.7, at 235 - 237 (2d
ed. 1986), quoted in Black’s Law Dictionary, “Criminal negligence” (11th ed.
2019).
31
1968 courts analyzed the elements of the offense of unlawful manner
involuntary manslaughter, there was no need to carefully
distinguish between criminal negligence, the definition of which now
includes the word “reckless,” and the mens rea now required for
statutory “reckless conduct,” which may not be precisely what we
have referred to as “recklessness” in older cases.29 See, e.g., Cain, 55
Ga. App. at 379-380 (1). For example, in Austin v. State, 110 Ga. 748(36 SE2d 52) (1900), cited with approval in Geele, this Court noted
that
[w]here death results to one from the discharge of a gun
in the hands of another, and there was no intention to kill
nor an intention to discharge the gun, the person in whose
hands the gun was held would not be guilty of murder,
although the gun may have been handled in a careless and
negligent, even reckless manner. In such a case the slayer
would be guilty of involuntary manslaughter only, and
the particular grade of that crime would depend upon
whether it was lawful or unlawful for the slayer to be in
possession of a deadly weapon at the time and place of the
killing.
29As we noted in Dunagan v. State, 269 Ga. 590, 593 n.3 (2) (a) (502 SE2d
726) (1998), the language of pre-1968 cases must be considered with “[g]reat
caution and care,” because the 1968 Criminal Code made significant changes
in the law of homicide, as noted above.
32
(Citations omitted; emphasis supplied.) Id. at 750.30 And although
Geele stated that Austin “defined negligence, carelessness, and
recklessness under the involuntary-manslaughter statute to mean
the same thing,” 203 Ga. at 375, and that recklessness was required
to show either grade of involuntary manslaughter, the Court in
Austin seemed to indicate, by use of the qualifying term “even,” that
recklessness was more culpable than either ordinary negligence or
carelessness, even before the enactment of the statutory offense of
reckless conduct. See 110 Ga. at 750. 31
Other decisions of Georgia courts have not included the concept
30 In Austin, the State introduced evidence of a deliberate shooting, but
the evidence for the defense tended to show that a group of friends was
engaging in horseplay and that the victim was fatally shot while playfully
attempting to take a firearm away from the appellant. The Court reversed the
appellant’s murder conviction based on the trial court’s erroneous charge on
murder and unlawful manner involuntary manslaughter, concluding that if
the jury believed the appellant’s evidence, he “was either not guilty of any
offense, or, at most, guilty of the lowest grade of manslaughter [that is,
unlawful manner involuntary manslaughter]. If the testimony in behalf of the
State was true, the accused was guilty of willful and deliberate murder.” 110
Ga. at 750.
31 Moreover, these conclusions in Geele were at best dicta, since this
Court went on to hold that the indictment failed to allege any criminal offense,
including unlawful manner involuntary manslaughter, and reversed the
overruling of the appellants’ demurrers. See 203 Ga. at 376-377.
33
of recklessness in their analysis of unlawful manner involuntary
manslaughter. For example, in Drake v. State, 221 Ga. 347 (144
SE2d 519) (1965), the appellant shot and killed the victim in the
woods of north Georgia. The appellant told the investigating officers
that he was deer hunting but shot at what he thought was a fox in
the mist or fog. While the State’s evidence was sufficient to support
the appellant’s conviction of murder, it also could have supported a
finding that the appellant killed the victim without any intention of
doing so in the commission of an unlawful act – hunting deer out of
season – or “while shooting at a fox, a lawful act, without due caution
and circumspection, resulting in culpable negligence.” (Citations
omitted.) 221 Ga. at 348 (2).32 This Court held that the trial court
erred in failing to instruct the jury on both grades of involuntary
manslaughter. See id.In Flannigan v. State, 136 Ga. 132 (70 SE 1107) (1911), a young
32As noted above, “culpable neglect,” part of the definition of “misfortune
or accident” in Code of 1933 § 26-404, was replaced in 1968 by the term
“criminal negligence” in Ga. Code Ann. § 26-601, now OCGA § 16-2-2, see Ga.
L. 1968 at p. 1269, but the latter term was not statutorily defined until 2004.
34
man was fatally stabbed. The appellant was convicted of murder and
appealed the denial of his request for an instruction on unlawful
manner involuntary manslaughter. While the State offered evidence
tending to prove murder, the appellant’s evidence would have
allowed the jury to find that he and two friends were playfully
wrestling over the appellant’s knife when the victim was
inadvertently stabbed in the leg. This Court concluded that the trial
court should have instructed the jury on unlawful manner
involuntary manslaughter:
If the circumstances attending the commission of a
homicide by stabbing or cutting with a knife authorize the
inference that there was no wrongful act, and no intention
to stab or cut, but that the wound was inflicted because
the person lawfully in possession of the knife may not
have exercised necessary and proper precaution against a
probable serious injury to the person who is engaged in a
playful struggle to dispossess him of the knife, the
homicide would be involuntary manslaughter. The
accused under such circumstances would not be entirely
exonerated from the consequences of his unintentional
act, where he fails to observe proper precaution against
the infliction of serious injury, or where the injury would
not have been inflicted but for his negligence.
Id. at 133. And in Burton v. State, 92 Ga. 449 (17 SE 99) (1893), the
35
concept of recklessness was specifically excluded:
where both the evidence and the prisoner’s statement
indicate that the shooting which produced the homicide
may have been accidental, and that the fatal result may
have been due to handling the pistol, not recklessly, but
without the observance of proper caution and
circumspection, the offence committed, if any, was not
necessarily murder, but may have been involuntary
manslaughter in the commission of a lawful act.
(Emphasis supplied.) Id. at 449. As noted in those decisions,
unlawful manner involuntary manslaughter gives the finder of fact
the option to find a level of culpability between complete exoneration
by reason of misfortune or accident and involuntary manslaughter
in the commission of an unlawful act.
In defining the upper limit of that lower level of culpability for
purposes of unlawful manner involuntary manslaughter, the term
“reckless” has been somewhat elastic and has had different
meanings in different contexts.33 In Georgia, it has been used in the
33 The ordinary dictionary definition of “reckless” is expansive: “1a:
lacking in caution: deliberately courting danger: foolhardy, rash . . . b: careless,
neglectful, thoughtless . . . 2a: marked by a lack of caution: heedless, rash . . .
b: marked by a lack of foresight or consideration: improvident, negligent . . . c:
irresponsible, wild.” Webster’s Third New International Dictionary 1896
36
analysis of intent for purposes of malice murder, 34 the statutory
definition of “criminal negligence,” and as part of the definition of
“gross negligence” in the civil context.35 But, somewhat curiously,
the word “reckless” itself is not included in the statutory definition
of the offense denominated as “reckless conduct,” but instead
appears in the definition of “criminal negligence.”
We accordingly must look at the specific wording of the statutes
to differentiate unlawful manner involuntary manslaughter from
the misdemeanor offense of “reckless conduct.” Under OCGA § 16-5-
60 (b), to commit the offense of “reckless conduct,” a person must
“consciously disregard[] a substantial and unjustifiable risk that his
(1976).
34 See Downey v. State, 298 Ga. 568, 569-570 (1) (783 SE2d 622) (2016)
(firing shots “in conscious disregard of the substantial risk of harm to which
the shots exposed others” constitutes “recklessness sufficient to imply malice”
for purposes of malice murder).
35 See McKinney v. Burke, 108 Ga. App. 501, 507 (4) (133 SE2d 383)
(1963) (“[A]n inadvertent act accompanied by recklessness is said to be
something more than ordinary negligence, and to amount at the least to gross
negligence.” (Citation omitted.)). See also Wheat v. State, 171 Ga. App. 583, 584
(2) (320 SE2d 808) (1984) (second degree vehicular homicide by violation of
State Department of Transportation rules for oversize loads; indictment “based
on appellant’s gross negligence by operating an oversized vehicle without
providing a front escort vehicle for the mobile home, in reckless and careless
disregard for the safety of the traveling public”).
37
act or omission will cause harm or endanger the safety of [another]
person,” in “gross deviation” from the standard of care which a
reasonable person would exercise in the situation. On the other
hand, OCGA § 16-2-1 defines “criminal negligence” as “an act or
failure to act which demonstrates a willful, wanton, or reckless
disregard for the safety of others who might be injured thereby.” The
distinction between the two is found in the statutory requirements
in OCGA § 16-5-60 (b) that the person “consciously disregard[] a
substantial and unjustifiable risk” that is a “gross deviation” from a
reasonable standard of care. See Henderson v. Hames, 287 Ga. 534,
538-539 (3) (697 SE2d 798) (2010) (construing virtually identical
language in OCGA § 16-11-108, misuse of a firearm while hunting,
as prescribing the mens rea of the offense, and holding Hames’
convictions void for failure of the indictment to allege that the
defendant “consciously disregard[ed] a substantial and unjustifiable
risk that his act or omission will cause harm to or endanger the
safety of another person” although the indictment did allege a gross
deviation from the standard of care).
38
The Court of Appeals has also applied this analysis in cases
involving a shooting death. In Nutt v. State, 159 Ga. App. 46 (282
SE2d 696) (1981), the appellant contended that he was examining a
pistol that the victim was offering for sale when he cocked it and
then attempted to lower the hammer, and the pistol discharged. The
appellant claimed an accidental shooting but was convicted of
unlawful act involuntary manslaughter, and enumerated as error
the trial court’s refusal to charge on unlawful manner involuntary
manslaughter. The Court of Appeals in its analysis contrasted
criminal (formerly “culpable”) negligence with the statutory offense
of reckless conduct:
Our view of the evidence is that the victim’s death
resulted from (1) accidental discharge of the pistol, if
appellant’s testimony were to be believed, or (2) in the
commission of an unlawful act, either pointing the pistol
at the victim (Code Ann. § 26-2908) [now OCGA § 16-11-
102] or while consciously disregarding a substantial and
unjustifiable risk (Code Ann. § 26-2910) [now OCGA § 16-
5-60 (b)], or (3) handling the pistol, a lawful act, without
due caution and circumspection resulting in culpable
negligence.
39
Id. at 47 (1). 36 The Court of Appeals reversed the appellant’s
conviction due to the trial court’s failure to instruct the jury on
unlawful manner involuntary manslaughter under the last
alternative. See id.; see also Chambers v. State, 205 Ga. App. 16, 19
(421 SE2d 88) (1992) (criminal negligence may be distinguished
from the statutory offense of reckless conduct because the latter
requires that the appellant act while consciously disregarding “a
substantial and unjustifiable risk” of harm in “gross deviation from
the standard of care which a reasonable person would exercise in the
situation”).37
36 Because one judge on the panel concurred in the judgment only, Nutt
is “physical precedent only.” See Court of Appeals Rule 33.2 (a) (2). However,
the reasoning of Nutt was relied upon by the Court of Appeals in Chambers v.
State, 205 Ga. App. 16, 19 (421 SE2d 88) (1992), in which all members of the
panel concurred. Moreover, while the Court of Appeals in Nutt omitted the
second part of the mens rea required for statutory “reckless conduct” (that the
disregard was a gross deviation from a reasonable standard of care), Chambers
correctly states the language of the Code section.
37 In Chambers, as in Nutt, the appellant contended that he attempted
to lower the hammer on a loaded and cocked revolver to render the gun safe,
but the gun accidentally discharged. See 205 Ga. App. at 17. The Court of
Appeals rejected the appellant’s contention that he was entitled to a charge on
unlawful act involuntary manslaughter based upon statutory reckless conduct,
because “appellant’s statements indicate that he acted consciously to avoid the
substantial risk of harm to himself” and the victim, “but that the manner in
which he handled the revolver he received from [the victim] was without due
40
This distinction explains those decisions which on first glance
appear to conflate criminal negligence with statutory “reckless
conduct,” such as State v. Springer, 297 Ga. 376 (774 SE2d 106)
(2015), in which this Court stated: “Reckless conduct, in contrast [to
aggravated assault], is an act of criminal negligence, rather than an
intentional act, that causes bodily harm or endangers the bodily
safety of another.” (Citations and punctuation omitted.) Id. at 379(1). The issue in Springer, however, was not the necessary elements
of statutory “reckless conduct,” but whether convictions for
aggravated assault and reckless conduct arising out of a shootout in
a public parking lot were mutually exclusive; this Court concluded
that they were not. See id. at 382 (1).38
Similarly, in Dunagan v. State, 269 Ga. 590 (502 SE2d 726)
caution and circumspection, resulting in culpable negligence.” (Emphasis in
original; citation and punctuation omitted.) 205 Ga. App. at 19. The court
further concluded that the appellant would have been entitled to a charge on
unlawful manner involuntary manslaughter under OCGA § 16-5-3 (b), but that
he expressly disavowed requesting that instruction, and the failure to give it
was not harmful as a matter of law. See 205 Ga. App. at 20; see also OCGA §
5-5-24 (c).
38 Elsewhere in the opinion, Springer noted all the necessary elements of
the statutory offense of reckless conduct. See 297 Ga. at 383 (3).
41
(1998), the Court did not address the elements of the statutory
offense of reckless conduct in concluding that “criminal intent and
criminal negligence are not interchangeable in those instances
where the mental culpability of the actor is the essential element
that distinguishes two separate crimes,” such as the offense of
aggravated assault. Id. at 592 (2) (a). Dunagan relied in part upon
Lindsey v. State, 262 Ga. 665 (424 SE2d 616) (1993), in which the
Court observed that “[r]eckless conduct is an act of criminal
negligence, rather than an intentional act,” (citation omitted), id. at
666 (2) (b), but in the context of determining that the appellant was
not entitled to instructions on accident or involuntary manslaughter
when he admitted that he deliberately fired his gun at the victims’
car and asserted the defense of justification by self-defense.39 As
Hames, 287 Ga. at 538 (3), clearly holds in interpreting the almost
identical language of OCGA § 16-11-108 (a), “consciously
39 This is consistent with our decisions noting that a defendant who
asserts justification by self-defense is not entitled to an additional instruction
on involuntary manslaughter on the theory that he used excessive force in
defending himself. See footnote 47 below.
42
disregarding a substantial and unjustifiable risk” and “gross
deviation” from a reasonable standard of care are requirements of
the reckless conduct statute and together constitute the mens rea
necessary to establish that crime, and our decisions in Springer,
Dunagan, and Lindsey do not contradict that.
Accordingly, we conclude that the General Assembly, in
enacting the reckless conduct statute while retaining both grades of
involuntary manslaughter, meant to preserve a distinction between
criminal negligence as the mens rea element of the offense of
unlawful manner involuntary manslaughter and the statutory
offense of “reckless conduct,” and that it reaffirmed that decision in
2004 by providing a statutory definition of “criminal negligence.”
(e) What constitutes a “lawful act” under OCGA § 16-5-3 (b).
“A ‘crime’ is a violation of a statute of this state in which there
is a joint operation of an act or omission to act and intention or
criminal negligence.” OCGA § 16-2-1 (a). Conversely, a lawful act is
something that is not a crime within the meaning of the laws of this
state. Whether a defendant is entitled to a jury instruction on a
43
lawful act committed in an unlawful manner under OCGA § 16-5-3
(b) depends upon the evidence presented at trial with respect to the
defendant’s actions. If the evidence at trial shows without dispute
that the fatal act was unlawful, the defendant is not entitled to such
an instruction. And if the evidence shows without dispute that the
fatal act constituted no crime at all (due to, for example, accident or
self-defense), the defendant is likewise not entitled to an instruction
on unlawful manner involuntary manslaughter. But if the evidence
is in conflict as to whether the fatal act was unlawful or merely rose
to the level of criminal negligence, the defendant is entitled, at least
when he so requests, to have the jury instructed on the commission
of a lawful act in an unlawful manner under OCGA § 16-5-3 (b).
A review of selected cases on involuntary manslaughter
provides some guidance for determining whether there is slight
evidence of the commission of a lawful act in an unlawful manner to
support an instruction on OCGA § 16-5-3 (b). For example, if the
uncontradicted evidence shows that the defendant was not in lawful
possession of the weapon that caused the victim’s death at the time
44
the fatal injury was inflicted, no instruction on unlawful manner
involuntary manslaughter is required. See Austin, 110 Ga. at 750(“the particular grade” of involuntary manslaughter involved in that
case – that is, unlawful act or unlawful manner – “would depend
upon whether it was lawful or unlawful for the slayer to be in
possession of a deadly weapon at the time and place of the killing”);
Flannigan, 136 Ga. at 133 (1) (lawful act for purpose of unlawful
manner involuntary manslaughter statute requires, at a minimum,
that “the person [be] lawfully in possession of” the fatal weapon). 40
See also Snell v. State, 306 Ga. App. 651, 654 (3) (703 SE2d 93)
(2010) (using reasoning consistent with this Court’s analysis in
Austin and Flannigan to reject appellant’s contention that he was
entitled to an instruction on unlawful manner involuntary
40 In Flanigan, the appellant’s employer testified that the knife used to
inflict the fatal injury belonged to the employer and was kept at his place of
business, but that the appellant was “a trusted servant and occasionally
carried the knife off with him.” 136 Ga. at 134. An instruction on unlawful
manner involuntary manslaughter was required because some evidence at
trial suggested that the appellant was merely engaging in “prankish sport” by
wrestling with the victim over the knife, without being “sufficiently
circumspect in guarding against the probable consequences of playing with a
dangerous weapon.” Id.45
manslaughter, because even under his own version of the events,
Snell conceded that his possession of a concealed weapon in the
victim’s home at the time of the fatal shooting was a violation of the
version of OCGA § 16-11-126 then in effect).41
Another question in determining whether an instruction on
unlawful manner involuntary manslaughter is warranted is
whether there is slight evidence that the defendant’s handling of the
weapon at the time the fatal injury to the victim was inflicted
amounted to at least (and not necessarily more than) criminal
negligence, in light of all the surrounding circumstances. Such
evidence may include a showing of a deliberate but lawful act done
in an unlawful (criminally negligent) manner, such as intentionally
discharging a firearm with the professed intent of shooting a fox but
without verifying his target in poor visibility, as in Drake, 221 Ga.
41 Snell was indicted for murder, felony murder, and aggravated assault,
but convicted of unlawful act involuntary manslaughter as a lesser included
offense of felony murder. See Snell, 306 Ga. App. at 651. The State’s witnesses
testified that Snell deliberately shot the victim at point-blank range, while
Snell contended that the shooting occurred when he accidentally dropped his
pistol from his coat and attempted to grab it, causing it to discharge. See id. at
652 (1).
46
at 348 (2), or a box located too close to a person, as in Teasley v State,
228 Ga. 107 (184 SE2d 179) (1971), with fatal consequences not
intended by the shooter. Such evidence also may include a showing
that the defendant had no intention of discharging a firearm, but an
inadvertent and fatal discharge occurred while the defendant was
lawfully handling the firearm but in an unlawful, criminally
negligent manner, as in Austin, 110 Ga. at 750, or Maloof v. State,
139 Ga. App. 787 (229 SE2d 560) (1976).
Thus, determining whether there is slight evidence of the
commission of a “lawful act” in an “unlawful manner” within the
meaning of OCGA § 16-5-3 (b), to support a jury instruction on
unlawful manner involuntary manslaughter, requires consideration
of all the evidence of the defendant’s intent based on, among other
things, the circumstances surrounding the fatal act in question. The
cases make clear that, in considering whether an instruction on
OCGA § 16-5-3 (b) is appropriate, the trial court must consider only
whether slight evidence supports the charge, and the ultimate
determination of whether the defendant acted lawfully but with
47
criminal negligence is for the jury under proper instruction.
(f) Application in firearm cases.
As the foregoing discussion demonstrates, here the trial court
erred when it ruled as a matter of law that a jury should never be
instructed on unlawful manner involuntary manslaughter in a
shooting death case. In its order denying McIver’s motion for new
trial, the trial court cited Manzano in support of its refusal to give
the requested charge. While the trial court did not quote the
language it relied upon, that decision states broadly that
“[a] defendant who handles a gun in such a way as to
accidentally cause the death of another human being,
albeit without any intention to do so, has necessarily
committed the misdemeanor of reckless conduct. . . .
[Cit.]” (Emphasis supplied.) Cook v. State, 249 Ga. 709,
712 (4) (292 SE2d 844) (1982). See also Reed v. State, 279
Ga. 81, 85 (7) (610 SE2d 35) (2005).
Manzano, 282 Ga. at 559 (3) (a). The same language is relied upon
in Cook and Reed, and appears to have originated in an expansive
interpretation of language used in Raines v. State, 247 Ga. 504, 507
(3) (277 SE2d 47) (1981). But in each of those cases, the
uncontradicted evidence as outlined in the opinion showed that the
48
appellant committed an unlawful act that caused the death of the
victim, thus taking his conduct outside the scope of unlawful manner
involuntary manslaughter.
In Manzano, unlawful manner involuntary manslaughter was
not even addressed. Manzano testified that he intentionally pressed
his pistol to his wife’s head and pulled the trigger, but that he and
his wife were only engaging in “horseplay” because both mistakenly
believed that the pistol was unloaded. See 282 Ga. at 557. Convicted
of felony murder, Manzano appealed, asserting that the trial court
should have given his requested instructions on unlawful act
involuntary manslaughter with the alternative predicate
misdemeanor offenses of pointing a pistol at another and reckless
conduct. This Court agreed and reversed with respect to the
predicate act of pointing a pistol at another, see id. at 558-559 (2),
also noting that the trial court erred in refusing to instruct on
unlawful act involuntary manslaughter with reckless conduct as the
predicate offense. See id. at 559 (3) (a).
Similarly, the cases cited in Manzano involved conduct in
49
handling a firearm amounting at least to the statutory offense of
reckless conduct. For example, in Reed, the appellant shot his
girlfriend in the head, killing her, while he was driving a car and
she was riding in the front passenger seat. Reed’s defense at trial
was accident, and the jury was charged on that issue. Convicted of
murder, Reed appealed, asserting that he was entitled to a charge
on unlawful manner involuntary manslaughter. However, the
evidence as recited in the opinion showed that “Reed’s admitted
conduct was not a lawful act.” 279 Ga. at 86 (7). He intentionally
produced and displayed a loaded firearm with his finger on the
trigger in close proximity to the victim, and his attention was
diverted from the location of the muzzle because he was “watching
the road trying to drive.” Id. Moreover, the State presented
uncontradicted testimony that the gun’s trigger was pulled twice.
See id. at 82.
Reed, like Manzano, quotes the language in Cook that “a
defendant who handles a gun in such a way as to accidentally cause
the death of another human being . . . has necessarily committed the
50
misdemeanor of reckless conduct,” 249 Ga. at 712 (4). But in Cook,
even according to Cook’s testimony at trial, he retrieved a pistol
during an argument with the victim, the mother of his child; he
turned towards her; and “the gun accidentally went off,” striking the
victim in the forehead. 249 Ga. at 710. The opinion notes no
contradiction to the medical examiner’s testimony that “the gun was
no more than several inches away from the victim’s head when the
fatal shot was fired.” Id. Cook’s deliberately bringing a loaded gun
into close proximity to the victim’s head during an argument
constituted conscious disregard of a substantial and unjustifiable
risk that he would cause harm or endanger the safety of the victim,
and the disregard constituted a gross deviation from a reasonable
standard of care, establishing the statutory offense of reckless
conduct, and thus was not a lawful act. See id. at 712 (4). See also
McDonald v. State, 224 Ga. App. 411, 413 (481 SE2d 1) (1997) (the
defendant’s deliberately grabbing his wife by the arm during an
argument and firing a revolver next to her head was sufficient to
support his conviction for reckless conduct under OCGA § 16-5-60
51
(b)).
In Cook, this Court cited two cases in support of its statement:
Raines and Ranger v. State, 249 Ga. 315 (4) (290 SE2d 63) (1982). 42
In Raines, the appellant was convicted of murder after he shot his
wife three times with a revolver during a domestic quarrel, killing
her. 43 Raines, a double amputee paralyzed from the waist down,
maintained that the revolver inadvertently discharged when he lost
his balance because he was not wearing his prosthetic device. See
247 Ga. at 505.44 The Court rejected Raines’ contention that the trial
court should have instructed the jury on both unlawful act and
42In Ranger, the appellant was convicted of murder of his pregnant
girlfriend and her child, who was born alive but died shortly afterwards. The
defense called no witnesses, and there was no evidence of how the shooting
occurred. Ranger asserted as error the trial court’s refusal to charge on
unlawful manner involuntary manslaughter, and in its brief treatment of this
enumeration of error, this Court simply observed, “There is no evidence here
that Helena Carter’s death, or her child’s, was caused by commission of a
lawful act in an unlawful manner,” and cited Raines. Ranger, 249 Ga. at 320(4).
43 The Raines court was sharply divided, with Chief Justice Jordan and
Justices Hill and Marshall dissenting as to the reversal on the voluntary
manslaughter charge in Division 1, while Justices Undercofler and Smith
dissented as to Divisions 2 and 3. The opinion was issued per curiam.
44 Raines’ doctor, asked what Raines’ balance would be like without the
prosthesis, testified, “Well, categorically it would be awkward to say the least.”
247 Ga. at 504 n.1.
52
unlawful manner involuntary manslaughter. See id. at 507 (3). 45
With respect to unlawful act involuntary manslaughter, Raines
claimed that he did not intend to shoot his wife and that the jury
could have found that he did so while committing the misdemeanor
of pointing a pistol at another. The Court rejected Raines’ contention
with respect to unlawful act involuntary manslaughter, concluding
that the evidence showed that, even if Raines’ wife had not died,
Raines committed aggravated battery, a felony, by shooting and
wounding his wife three times, id. at 507 (3), and pointing out that,
in the case relied upon by Raines, only a single shot was fired. See
id. at 507 n.4 (2).46
With respect to unlawful manner involuntary manslaughter,
Raines contended that his “lawful act” occurred earlier in the
45 The Court reversed, however, based upon the trial court’s failure to
instruct the jury on voluntary manslaughter by reason of “serious provocation”
under former Ga. Code Ann. § 26-1102, now OCGA § 16-5-2, due to the victim’s
taunting of Raines with her adultery and his disability. See 247 Ga. at 506 (1).
But because of the possibility of the issue arising on retrial, we also considered
Raines’ contentions with regard to instructions on both grades of involuntary
manslaughter.
46 Despite the physical evidence of his wife’s wounds and three
discharged shells found at the scene, Raines maintained that the gun only
“fired twice.” 247 Ga. at 505.
53
evening, when, he testified, he retrieved his revolver from under a
mattress and “walked on his hands” to the back door because he
“thought he heard a noise outside.” Id. at 504. Thereafter, he found
a letter from his wife’s boyfriend in her purse, returned to the
bedroom and confronted her about the letter, and she began to taunt
him with his disability and her infidelities. It was during the course
of this subsequent quarrel, he claimed, that he lost his balance while
attempting to lie down on the bed, fell down, and the gun “went off.”
Id. at 505. The Court concluded that the evidence, including Raines’
own testimony and argument, showed that he was not engaged in a
lawful act at the time of the shooting. Holding a loaded gun while
involved in an argument and attempting to move around, knowing
that one is both paralyzed from the waist down and dependent upon
a prosthesis for balance, can be fairly characterized as a conscious
disregard of a substantial and unjustifiable risk of harm to another
that constitutes a gross deviation from a reasonable standard of
care, thereby fulfilling all the elements of the statutory offense of
reckless conduct, then Ga. Code Ann. § 26-2910. See id. at 507 (3)
54
and n.5.
The State also relies upon Ward v. State, 252 Ga. 85 (311 SE2d
449) (1984). There, the victim was told to come to Ward’s trailer
regarding a debt he owed to Ward. Ward testified that the victim
offered drugs in partial payment of the debt, but the owner of those
drugs, Whitlock, objected and put his hand in his back pocket. See
id. at 87. Ward retrieved a rifle, cocked it, and told Whitlock to take
his hand out of his pocket and leave; at that point, the victim
“started up from the bed,” Ward “jumped backwards” and hit a piece
of furniture, and “the gun went off.” Id. The jury was instructed on
accident and justification by self-defense. The Court rejected Ward’s
contention that the trial court erred in refusing his request to charge
on unlawful manner involuntary manslaughter, noting that Ward’s
conduct in handling the rifle “consciously disregard[ed] a
substantial and unjustifiable risk that the act [would] cause harm
or endanger the safety of another” and constituted the offense of
reckless conduct, citing OCGA § 16-5-60 (now OCGA § 16-5-60 (b))
55
and Raines. Ward, 252 Ga. at 88 (a).47
A close reading of these decisions shows that the expansive
language used in Cook, Reed, and Manzano, derived from but not
quoting the decision in Raines, fails to take into account the context
in which it originated and was applied. In Cook, Reed, and Manzano,
the undisputed evidence established that the appellant acted with
conscious disregard of a substantial and unjustifiable risk of harm,
constituting a gross deviation from a reasonable standard of care –
the elements of statutory reckless conduct under OCGA § 16-5-60
47 In Ward, we failed to mention the other component of the mens rea
required for statutory reckless conduct, namely, gross deviation from a
reasonable standard of care. Ward also relies upon Crawford v. State, 245 Ga.
89 (263 SE2d 131) (1980), and Saylors v. State, 251 Ga. 735 (309 SE2d 796)
(1983). The latter two decisions are inapplicable to the case before us, because
they hold that a defendant asserting justification by self-defense is not entitled
to an additional instruction on involuntary manslaughter under either
subsection of OCGA § 16-5-3 on the theory that the defendant used excessive
force in self-defense. See Crawford, 245 Ga. at 92 (3); Saylors, 251 Ga. at 737(3); see also Harris v. State, 272 Ga. 455, 456-457 (3) (532 SE2d 76) (2000)
(“Because appellant conceded that he shot at the victims intentionally, albeit
in self-defense, a charge on the lesser offense of involuntary manslaughter,
which requires a lack of intent, was not warranted.” (Citations and footnote
omitted.)). In Raines, the Court noted that Crawford is not controlling when a
defendant claims accident and not self-defense. Raines, 247 Ga. at 506 (2). See
also Chambers, 205 Ga. App. at 19 (noting that Willis v. State, 258 Ga. 477,
477-478 (1) (371 SE2d 376) (1988), citing Saylors and Crawford, “does not hold
that OCGA § 16-5-3 (b) is inapplicable any time the victim is killed by the
shooting of a gun”).
56
(b). An unlawful manner involuntary manslaughter charge was not
requested in Manzano, and in Cook and Reed this Court concluded
that the trial court correctly refused a charge on OCGA § 16-5-3 (b)
because slight evidence did not support such a charge. But none of
these decisions supports the proposition that any handling of a
firearm resulting in an unintended death always constitutes at least
the statutory offense of reckless conduct and therefore forecloses an
instruction on unlawful manner involuntary manslaughter.
We accordingly disapprove the statement in Cook, Reed, and
Manzano that “[a] defendant who handles a gun in such a way as to
accidentally cause the death of another human being, albeit without
any intention to do so, has necessarily committed the misdemeanor
of reckless conduct,” to the extent it suggests that an instruction on
unlawful manner involuntary manslaughter is never appropriate in
a case involving a fatal shooting. 48 Under the specific circumstances
outlined in those decisions, a jury instruction on unlawful manner
48We disapprove only this statement, and express no opinion regarding
whether these cases were correctly decided.
57
involuntary manslaughter was not appropriate. But when there is
slight evidence, even if in dispute, that the defendant caused the
death of another person in the commission of a lawful act but in a
merely criminally negligent manner, a charge on unlawful manner
involuntary manslaughter is supported.
The Court of Appeals reached a similar conclusion in Allison v.
State, 288 Ga. App. 482, 484-485 (1) (654 SE2d 628) (2007), an
appeal of a conviction for reckless conduct under OCGA § 16-5-60
(b). The appellant went to a friend’s apartment to retrieve a bag of
clothing. He had a pistol in the bag, and was checking the gun, which
was pointed down, when it went off. The bullet traveled through a
wall into an adjacent apartment, where it ricocheted off the floor and
a metal door before striking a child in the head, causing serious
injury. There was no evidence that the appellant knew the gun was
loaded, or that he intentionally fired it. See id. at 482 (1). The Court
of Appeals reversed the conviction, concluding that the evidence was
insufficient because it did not establish that the appellant handled
the firearm in a manner creating “a ‘substantial and unjustifiable
58
risk’ that he would endanger the safety of another person.” Id. at 483
(quoting OCGA § 16-5-60 (b)). In so deciding, the Court of Appeals
concluded that the language in Manzano, Reed, and Cook was not
intended to “transform the crime of reckless conduct into a strict
liability crime” whenever a firearm is involved, and that “[t]he words
‘in such a way’ should not be interpreted to mean any and all types
of gun handling; instead, they should be interpreted to track” the
mens rea language in OCGA § 16-5-60 (b). Allison, 288 Ga. App. at
484-485. We agree that such a construction is necessary in order to
avoid rendering OCGA § 16-5-3 (b) meaningless in every case
involving a shooting death.
This interpretation of Raines and its progeny is also consistent
with the principle that a charge on involuntary manslaughter –
including unlawful act involuntary manslaughter under OCGA § 16-
5-3 (a) – is not authorized when the undisputed evidence
demonstrates that the defendant acted intentionally in harming the
victim. See, e.g., Cheeves v. State, 306 Ga. 446, 447-448 (2) (831 SE2d
829) (2019) (instruction on unlawful act involuntary manslaughter
59
not required when appellant pointed gun directly at victim and shot
victim multiple times); Harris v. State, 257 Ga. 385, 386 (1) (359
SE2d 675) (1987) (trial court properly refused to charge on unlawful
act involuntary manslaughter when appellant repeatedly stabbed
victim and threatened him); Conner v. State, 251 Ga. 113, 116 (2) (c)
(303 SE2d 266) (1983) (appellant not entitled to instruction on
unlawful act involuntary manslaughter when victim was beaten
severely and “the number of wounds inflicted leaves no doubt on the
question of intent or voluntariness” (citation and punctuation
omitted)).49
Once these decisions are removed from consideration, however,
49 We also disapprove the bench note accompanying the Georgia pattern
jury instruction on involuntary manslaughter to the extent it suggests that “‘a
lawful act committed in an unlawful manner’ is often going to be equivalent to
reckless conduct (see [OCGA] § 16-5-60 (b)), a misdemeanor which would
support the charge of felony involuntary manslaughter,” citing Kellam v. State,
298 Ga. 520, 523 (2) (783 SE2d 117) (2016), and Harmon v. State, 259 Ga. 846,
848 (4) (b) (388 SE2d 689) (1990). Georgia Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases § 2.10.45 (4th ed. 2007, rev. 2021)
(Involuntary Manslaughter (Misdemeanor)). In the two cases cited by the
bench note, this Court held that the severe injuries to the victims could not
have resulted from any lawful act. And, as discussed above, statutory reckless
conduct is an “unlawful act” and thus never equivalent to a “lawful act
committed in an unlawful manner.”
60
a group of cases remains in which the evidence, even if slight, would
allow a jury to find unlawful manner involuntary manslaughter
because the act resulting in the victim’s death was not intentional
or unlawful in itself, and the defendant under the circumstances
acted only in a criminally negligent manner rather than in violation
of all the elements of the reckless conduct statute. And in such cases,
an instruction on OCGA § 16-5-3 (b) is appropriate.
For example, in Teasley, during a chaotic Christmas Eve
encounter between Teasley, his wife, his girlfriend, and the police,
the girlfriend was struck and killed by a bullet fired from Teasley’s
pistol. See 228 Ga. at 109. At some point, Teasley shot at the lock of
a metal box, located a few feet away from where the victim was lying
on the floor, in an apparent attempt to access its contents. See id. A
pathologist’s testimony did not exclude the possibility that the fatal
bullet ricocheted from the metal box, although he considered it
unlikely. See id.Teasley was convicted of malice murder and appealed,
complaining of error in the refusal of several of his requests to
61
charge. We reversed, concluding that the trial court erred in failing
to give several jury instructions, including on unlawful manner
involuntary manslaughter, observing that while the evidence was
sufficient to support the jury’s verdict of murder, it was also
sufficient to raise a jury issue as to unlawful manner involuntary
manslaughter:
From the circumstances of the homicide as referred to
above, the evidence was ample to raise an issue for the
jury’s consideration as to the defense of [involuntary]
manslaughter. It was sufficient to authorize the jury to
consider whether the victim’s death was a result of the
appellant’s lawfully firing the pistol in an unlawful
manner, in close proximity to the victim so as to cause the
bullet to richochet [sic] and strike her.
Id. at 110-111 (4).50 The evidence also appears to have been sufficient
for the jury to have found that the appellant’s act of intentionally
firing a loaded pistol at a box only a few feet away from the victim
amounted to statutory reckless conduct and thus the offense of
unlawful act involuntary manslaughter under OCGA § 16-5-3 (a),
50 This Court also concluded that the evidence authorized an instruction
on misfortune or accident under former Ga. Code Ann. § 26-602, now OCGA §
16-2-2, see 228 Ga. at 110 (3), as well as two requested instructions with
respect to the defense of insanity. See id. at 111-112 (5).
62
but it does not appear from the opinion that Teasley requested an
instruction on unlawful act involuntary manslaughter or
enumerated as error the refusal to give such an instruction.
Similarly, in Maloof, the appellant was indicted for murder but
convicted of unlawful act involuntary manslaughter in the shooting
death of his wife. See 139 Ga. App. at 787 (syllabus by the Court).
At trial, he testified that, during a domestic quarrel, he was
attempting to lower the hammer of a handgun after he noticed it
was cocked. While he did so, he pointed the gun upwards, “towards
the crease in the wall and ceiling,” and while he was not looking at
his wife she “tried to get past him” and the handgun discharged,
killing her. Relying on Teasley, the Court of Appeals reversed,
concluding that the trial court erred in failing to instruct the jury on
unlawful manner involuntary manslaughter because the evidence
authorized the jury to consider whether the appellant was lawfully
using the pistol, but “in an unlawful manner, in close proximity to
63
the victim.” (Citation and punctuation omitted.) Id. at 788.51
The trial court therefore erred in relying upon Manzano to
conclude that unlawful manner involuntary manslaughter is never
applicable in a shooting death case and in refusing McIver’s
requested instruction on unlawful manner involuntary
manslaughter on that basis.
(g) Evidence supporting the requested charge.
We must next consider whether slight evidence supported
McIver’s request to instruct the jury on unlawful manner
involuntary manslaughter.
To authorize a requested jury instruction, there need only
be slight evidence to support the theory of the charge, and
the necessary evidence may be presented by the State, the
defendant, or both. Whether the evidence presented is
sufficient to authorize the giving of a charge is a question
of law.
(Citations and punctuation omitted.) Merritt v. State, 311 Ga. 875,
889 (7) (860 SE2d 455) (2021). “The evidence necessary to justify a
51 On retrial, the appellant was convicted of unlawful manner
involuntary manslaughter, and that conviction was affirmed by the Court of
Appeals in Maloof v. State, 145 Ga. App. 408 (243 SE2d 634) (1978).
64
jury charge need only be enough to enable the trier of fact to carry
on a legitimate process of reasoning.” (Citations and punctuation
omitted.) Calmer v. State, 309 Ga. 368, 370 (2) (846 SE2d 40) (2020).
And “[i]n determining whether a trial court erred in giving jury
instructions, we read and consider the instructions as a whole.”
(Citation omitted.) Stafford v. State, 312 Ga. 811, 820 (4) (865 SE2d
116) (2021).
Here, the evidence presented at trial provided some support for
the requested instruction. Evidence was presented that, at the time
of the shooting, McIver was asleep in the back seat of a moving car
with the loaded revolver on his lap in a plastic grocery bag, and that
he was startled awake by the doors locking, someone speaking, or
the vehicle going over a bump in the road. In addition, expert
testimony was presented that at the time the revolver discharged,
McIver was not holding it upright in a raised position, but rather
that the gun was lying sideways and resting on his lap. Some
evidence was also presented that McIver suffered from a sleep-
related disorder that could produce involuntary movements when he
65
was awakened or startled.
From this evidence, the jury could have concluded that the
revolver was not deliberately or intentionally fired, but rather, as
McIver suggests, discharged as a result of his being startled awake,
reflexively or involuntarily clutching at the bag holding the firearm,
and inadvertently contacting the trigger. While the jury could have
found from the evidence that the shooting that killed Diane was an
accident under OCGA § 16-2-2, the jury also could have concluded
that, while it was not unlawful for McIver merely to have a loaded
revolver in his lap in the back seat of the vehicle, he was criminally
negligent in his manner of handling it by keeping it in his lap
unsecured, without a holster and in a plastic bag, in a moving
vehicle with two other people in the front seats, and by allowing
himself to doze off while the gun was so situated.52 This is at least
52 The State asserted at oral argument that not even slight evidence was
presented that the gun was handled in an unlawful manner. However, as
McIver points out, the State argued at trial that McIver was unsafe in handling
the gun by not giving the gun back to his wife or placing it on the floor or on
the seat beside him, by failing to return the gun to its available holster, and by
failing to exercise “muzzle awareness” by keeping the gun loose in a plastic
bag, thus placing Diane “in that kind of danger.”
66
slight evidence that the fatal discharge of the firearm was a lawful
act but performed in a criminally negligent manner, but not
necessarily statutory reckless conduct – an act performed in
conscious disregard of a substantial and unjustifiable risk of harm
to another amounting to a gross deviation from a reasonable
standard of care. 53
We need not decide whether we believe that McIver’s conduct
was only criminally negligent in manner, or instead amounted to
statutory reckless conduct under OCGA § 16-5-60 (b).
[W]e must decide only whether there was slight evidence
to support the jury instruction. . . . And if there was slight
evidence supporting the instruction – and there was – it
is irrelevant whether we find that slight evidence
persuasive in the face of contrary evidence; that question
was reserved exclusively for the jury.
Daly v. Berryhill, 308 Ga. 831, 834 (843 SE2d 879) (2020). The
evidence at trial constituted the slight evidence necessary to support
an instruction on unlawful manner involuntary manslaughter, and
53 A jury, of course, could also conclude that McIver was guilty of the
statutory offense of reckless conduct, and hence of unlawful act involuntary
manslaughter.
67
we therefore conclude that the trial court erred in refusing to give
McIver’s requested instruction on this point.
(h) Determining harmful error.
Having determined that the trial court erred, we next must
consider whether the error was harmful so as to require reversal of
McIver’s convictions. “The test for determining whether a
nonconstitutional instructional error was harmless is whether it is
highly probable that the error did not contribute to the verdict.”
(Citations and punctuation omitted). Jones v. State, 310 Ga. 886, 889
(2) (855 SE2d 573) (2021). And in determining whether such an error
is harmless, we assess the evidence from the viewpoint of reasonable
jurors, not in the light most favorable to the verdicts. See Thompson
v. State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899) (2017).
Here, we cannot say that the error was harmless, because the
evidence of McIver’s guilt of aggravated assault and felony murder
was not overwhelming or even strong, and the evidence of criminal
intent was disputed and circumstantial. Indeed, the State’s evidence
of intent was weak, as no witness testified to any disagreement or
68
quarrel between McIver and Diane, and many witnesses testified
that they were very much in love. The State’s evidence largely
focused on a possible financial motive for McIver to murder Diane,
but as McIver notes, the evidence connecting that alleged motive to
any actions that McIver took to intentionally kill his wife was thin.
The State’s murder theory – that McIver intentionally shot his wife
in the back in a moving car, with her best friend as a witness,
through a thin plastic bag and through the back of a seat that could
have diverted the bullet, while aiming so low as to potentially miss
any vital organs – is supported only by some circumstantial evidence
and conjecture; to the contrary, the circumstances of the shooting
suggest a lack of any preparation or planning. Indeed, the only
witness to the fatal shooting testified that shortly before asking for
his gun, McIver had fallen asleep in the back seat and that he
appeared to have fallen asleep again after that, an unlikely action
for someone intending to commit a murder.
Perhaps aware of the weakness of the State’s case, the
prosecutor argued to the jury, without citing any particular
69
evidence, that McIver must have planned to murder Diane earlier,
at the ranch, but was prevented from doing so by the presence of
Carter, and was so committed to killing Diane that day that he
“ha[d] to go to maybe a Plan B” in the vehicle. But, once again, the
evidence presented by the State provides little if any support for this
theory. If McIver intended to fatally shoot Diane, why would he do
it in the presence of Carter, and why would he do it in midtown
Atlanta, within a few miles of several major hospitals, instead of on
a rural interstate, far from any medical aid? The prosecutor argued
that McIver put the gun in a plastic bag to avoid DNA or gunshot
residue, even though Diane was the one who handed him the gun
already in the plastic bag, and given the circumstances there could
be little doubt that he was the person who discharged the gun. On
the other hand, the State’s evidence that McIver gave varying
statements to hospital personnel, the police, and others describing
how the incident occurred, and that some hospital personnel thought
that McIver was not grieving “appropriately” lend some support to
the State’s murder theory, but not much.
70
As McIver also points out, the refusal of his request to charge
the jury on unlawful manner involuntary manslaughter “deprived
[him] of the benefit of one of [his] defense theories – maybe the
stronger one – and thus deprived [him] of the chance for the jury to
convict [him] of [a] misdemeanor[] rather than felonies.” Shah v.
State, 300 Ga. 14, 22 (2) (b) (793 SE2d 81) (2016). In Shah, the
appellant was found guilty of felony murder and two counts of first-
degree cruelty to children in connection with the death of her infant
daughter due to dehydration and probable hyperthermia. The
State’s medical examiner had concluded that the death was
accidental. See id. at 16 (1) (b). The trial court refused the
appellant’s request to charge the jury on the misdemeanor of
statutory reckless conduct as a lesser included offense of the felonies
of first-degree cruelty to children under OCGA § 16-5-70 (a) and (b).
Shah’s counsel argued that the appellant’s conduct was not
intentional, and asserted the theory of accident as a defense, but also
conceded in his opening statement that the jury might find that her
conduct had been “reckless.” Id. at 22. The trial court refused to
71
charge the jury on statutory reckless conduct, thereby preventing
counsel from including this alternative and likely stronger theory in
his closing argument.
We noted that Shah’s counsel’s seeking to present two
alternative theories was “not an unreasonable strategy” under the
circumstances of that case, noting that “criminal defendants often
offer dissonant defense theories, particularly with regard to levels of
criminal intent when the result of the defendant’s actions was
undeniably tragic and the jury may be inclined against finding the
defendant entirely innocent.” Id. at 22 (2) (b). Concluding that the
appellant was deprived of an important defense by the trial court’s
refusal to give the requested charge, that some evidence supported
the lesser included offense, and that the evidence of the greater
offense was not overwhelming, we held that the error was harmful
and reversed the convictions. See id. at 23 (2) (b).
Here, as in Shah, McIver’s main defense theory at the outset
was accident – lack of any criminal mens rea – which was the only
theory set forth in his counsel’s opening statement. In closing,
72
McIver again asserted the accident theory, and while his counsel
mentioned statutory reckless conduct as a basis for finding unlawful
act involuntary manslaughter, it was only to argue that the facts did
not meet the statutory definition of that felony offense.54 But counsel
was prevented from arguing the theory of unlawful manner
involuntary manslaughter based on criminal negligence by the trial
court’s refusal to give his requested charge on that theory. And this
theory was important to McIver, given that his age at the time of
trial – almost 71 – deterred his counsel from suggesting to the jury
any felony outcome – including unlawful act involuntary
manslaughter – as he might not live long enough to serve even a ten-
year sentence.
The jury could have concluded – as McIver argued – that the
evidence presented here did not meet the statutory definition of
reckless conduct as correctly given by the trial court, involving as it
does both conscious disregard of a substantial and unjustifiable risk
54 The State, on the other hand, mentioned reckless conduct in closing
only to argue that it had proved McIver’s actions were intentional, not reckless.
73
of harm to another and a gross deviation from a reasonable standard
of care. But the jury was given no alternative instruction regarding
criminal negligence, a mental state more culpable than pure
accident and arguably more consistent with the evidence at trial.
This foreclosed the possibility of a finding that McIver was
criminally negligent but did not meet the definition of reckless
conduct, which would have enabled the jury to find that McIver was
not entirely guiltless, but guilty only of unlawful manner
involuntary manslaughter.
The trial court’s refusal to give the requested instruction on
unlawful manner involuntary manslaughter deprived McIver of the
opportunity to argue an alternative theory of defense that may have
been stronger than those permitted by the trial court, and to offer to
the jury an opportunity to convict him of a lesser offense without
entirely exonerating him from criminal responsibility for a tragic
and deadly event.
Moreover, considering the jury instructions as a whole, see
Stafford, 312 Ga. at 820 (4), the trial court compounded its error in
74
omitting a charge on unlawful manner involuntary manslaughter in
two ways. First, the court instructed the jury that accident involves
“no criminally negligent behavior such as reckless conduct.” Second,
it instructed the jury, “[I]f you don’t find beyond a reasonable doubt
that his conduct constituted reckless conduct, then you are dealing
with an unintentional situation along the lines of accident.” More
than mere omission, these instructions expressly foreclosed any
consideration of unlawful manner involuntary manslaughter, even
though there was evidence to support a finding of mere criminal
negligence.
The effect of the omission of an instruction on unlawful manner
involuntary manslaughter is suggested by the jury’s questions to the
trial court during its lengthy deliberations, repeatedly expressing
concerns regarding the question of McIver’s intent and ultimately
stating after four-and-a-half days of deliberations that it was
deadlocked on that very question. 55 See Davidson v. State, 304 Ga.
55 During its deliberations, the jury sent out numerous questions to the
trial court, beginning with, “If not guilty on 1 through 4 [malice murder, felony
75
460, 471 (4) (819 SE2d 452) (2018) (concluding constitutional error
was not harmless, in part because the jury asked for recharge on
issues implicated by error); Bracewell v. State, 243 Ga. App. 792, 796
(2) (534 SE2d 494) (2000) (concluding error in charge was harmful,
in part because the jury asked twice for recharges and “[c]larity in
this portion of the charge was critical to an issue of defense” (citation
and punctuation omitted)). Indeed, the jury ultimately found McIver
not guilty of malice murder.
The State asserts that the error is harmless because the jury
rejected the lesser included offense of unlawful act involuntary
manslaughter in finding McIver guilty of felony murder based on
aggravated assault, which means that the jury found that McIver
murder, aggravated assault, and possession of a firearm during the
commission of a felony], can number 5 [influencing a witness] be guilty?” then
asking to view the vehicle and to watch the video of McIver’s police interview
again. After further deliberations, the jury asked, “How does intent affect the
charge of aggravated assault with a deadly weapon?” and, “For an assault to
occur, does there need to be intent to cause violent injury or just an action that
causes violent injury?” Then, on the fifth day of deliberations, the jury sent out
a note to the trial court stating, “We don’t see a path to overcome our
differences on the defendant’s intent related to charges 1, 2, 3, and 5.” Over
McIver’s objection, the trial court delivered an Allen charge to the jury, and
shortly thereafter the jury reached its verdicts.
76
intended to shoot Diane, thereby causing a violent injury, but did
not intend to kill her, given that the jury acquitted him of malice
murder. Even assuming that is a correct interpretation of what the
jury’s verdicts signified, the jury reached its verdicts without a
complete instruction on the grades of culpability between accident
and felony murder, thus “depriv[ing] the jury of the necessary tools
to evaluate the charges against [McIver] and to reach a verdict.”
Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861) (2019). This
is particularly true in light of McIver’s desire to avoid a felony
conviction arising out of statutory reckless conduct: his inability to
argue criminal negligence as the basis for a misdemeanor conviction
of unlawful manner involuntary manslaughter deprived him of the
benefit of a strong theory of defense, and certainly the most
advantageous theory short of an outright acquittal on the basis of
accident. See Shah, 300 Ga. at 22 (2) (b). In light of all these
circumstances, we cannot say it is highly probable that the trial
court’s error in refusing the requested instruction did not contribute
to the jury’s verdicts, and reversal therefore is required.
77
We note that, as a matter of constitutional due process, the
evidence presented at trial and summarized above was, when
viewed in the light most favorable to the verdicts, legally sufficient
to authorize a rational jury to find McIver guilty beyond a
reasonable doubt of the crimes for which he was convicted. See
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). Therefore, although we reverse McIver’s
convictions for felony murder based on aggravated assault and
possession of a firearm in the commission of a felony based on the
instructional error, the State may choose to retry McIver on the
counts as to which the jury returned a verdict of guilty as well as the
lesser included offense of unlawful act involuntary manslaughter, as
to which the jury did not return a verdict. See Doyle v. State, 307 Ga.
609, 615 (2) n. 5 (837 SE2d 833) (2020).
3. Because we are reversing some of McIver’s convictions, we
next consider those evidentiary issues that are likely to recur if the
78
State elects to retry McIver. 56 All these issues concern evidence
admitted at trial that McIver contends was irrelevant, speculative,
or prejudicial.
(a) OCGA § 24-4-401 defines relevant evidence as “evidence
having 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.”
Although this relevance standard is a liberal one, it is not
meaningless or without boundaries. Any evidence that
fails to meet this standard will be barred by OCGA § 24-
4-402 (“Rule 402”), which provides, without exception,
that “[e]vidence which is not relevant shall not be
admissible.” A trial court’s decision whether to admit or
exclude evidence is reviewed on appeal for an abuse of
discretion.
(Citations and punctuation omitted.) Martinez-Arias v. State, 313
Ga. 276, 285 (3) (869 SE2d 501) (2022).
Moreover,
56 In addition to the instructional errors addressed in this opinion,
McIver enumerated two other claims of trial court error, which involve the
jury’s deliberations. These claims concern the interruption of deliberations to
permit a second inspection of, and experiments with, the vehicle and firearm
involved, and the giving of an Allen charge. These claimed errors are unlikely
to recur if the State elects to retry McIver, so we do not address them.
79
relevant evidence may be excluded under OCGA § 24-4-
403 (“Rule 403”) “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.” The major function of Rule 403 is
to exclude matter of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial
effect.
(Citations and punctuation omitted.) Lofton v. State, 309 Ga. 349,
355 (2) (b) (846 SE2d 57) (2020). And while relevance is a binary
concept – evidence is either relevant or not – probative value is
relative:
Evidence is relevant if it has “any tendency” to prove or
disprove a fact, whereas the probative value of evidence
derives in large part from the extent to which the evidence
tends to make the existence of a fact more or less
probable. Generally speaking, the greater the tendency to
make the existence of a fact more or less probable, the
greater the probative value. And the extent to which
evidence tends to make the existence of a fact more or less
probable depends significantly on the quality of the
evidence and the strength of its logical connection to the
fact for which it is offered. Probative value also depends
on the marginal worth of the evidence – how much it adds,
in other words, to the other proof available to establish
the fact for which it is offered. The stronger the other
proof, the less the marginal value of the evidence in
question. And probative value depends as well upon the
need for the evidence. When the fact for which the
80
evidence is offered is undisputed or not reasonably
susceptible of dispute, the less the probative value of the
evidence.
(Citations, punctuation and footnotes omitted; emphasis supplied.)
Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016). We
consider each of McIver’s evidentiary contentions in turn.
(b) McIver complains of the State’s introduction of evidence of
Diane’s supposed second will, which the trial court characterized as
“powerful evidence of motive.” As noted above in footnote 6, the
evidence that such a will existed was very slight, consisting of a
statement allegedly made by Diane about two years before her death
referring to an unidentified document as “my new will.” No second
will was ever found despite an intensive search; 57 the McIvers’ estate
planning attorneys knew of no such will; and no evidence was
presented of the supposed will’s contents or whether its provisions
were advantageous, disadvantageous, or neutral to McIver.
Moreover, no evidence was presented that McIver knew of such a
57 The State executed search warrants at the offices of the McIvers’
attorneys, and an advertisement was placed in the legal organ of the county
seeking any attorney who had drafted such a will.
81
will or its contents, or had access to it.
Yet the State argued that the mere existence of a supposed
second will, with no evidence of its provisions or of McIver’s
knowledge of or access to it, was relevant to show that he had a
financial motive to kill Diane and to show that when he shot her, he
did so with the intent to kill or at least violently injure her. The State
noted that the supposed second will theoretically could have left all
Diane’s property to someone other than McIver, including her
interest in the ranch property. But, as McIver points out, the
supposed second will could not have affected the disposition of
Diane’s interest in the ranch property, because the McIvers held the
property as joint tenants with right of survivorship. See OCGA § 44-
6-190; see also Biggers v. Crook, 283 Ga. 50, 52-53 (1) (656 SE2d 835)
(2008) (noting that OCGA § 44-6-190 (a) (3) provides for a “lifetime
transfer of all or a part” of a joint tenant’s interest. (Emphasis
supplied.)).
Moreover, as to Diane’s other property, the State’s argument
required the jury to make a series of increasingly speculative
82
inferences: (1) that Diane executed or intended to execute a second
will; (2) that the provisions of the will were disadvantageous to
McIver in some way; (3) that McIver knew of the new will; (4) that
McIver knew the contents of the new will; and (5) that McIver
therefore had a motive to kill Diane to prevent her from executing
the new will or, if she had already executed it, to kill her so that he
could obtain and destroy all copies of the new will. Without any
additional evidence, the chain of inferences between the evidence in
question and any legally relevant point “is simply too long, dubious,
[and] attenuated” to allow the evidence to be introduced. State v.
Stephens, 310 Ga. 57, 60-61 (1) (849 SE2d 459) (2020) (affirming
trial court’s exclusion of evidence requiring series of unproven
inferences to connect defendant with murder weapon). See also
Olds, 299 Ga. at 75 n.14 (2) (noting “‘the number of intermediate
propositions between the item of evidence and the ultimate
consequential fact that the item is offered to prove’” as tending to
diminish probative value. (Citations omitted.)). Here the State’s
evidence arguably showed the possibility of a second will, and such
83
a will might be relevant to motive if evidence of its provisions and
McIver’s knowledge of its existence were shown. However, the State
here did not offer evidence sufficient to “make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable” under Rule 401. It was therefore
irrelevant and inadmissible, and the trial court abused its discretion
in admitting it.
(c) McIver also complains of the State’s introduction of evidence
regarding OCGA § 53-1-5, sometimes referred to as the “slayer
statute,” which the trial court also characterized as “powerful
evidence of motive.” 58 Prosecution witnesses testified that the
statute imposed a forfeiture on any person found guilty of
“intentional” homicide, and would apply to Diane’s extant will and
58 OCGA § 53-1-5 (a) provides:
An individual who feloniously and intentionally kills or conspires
to kill or procures the killing of another individual forfeits the right
to take an interest from the decedent’s estate and to serve as a
personal representative or trustee of the decedent’s estate or any
trust created by the decedent. For purposes of this Code section,
the killing or conspiring to kill or procuring another to kill is
felonious and intentional if the killing would constitute murder or
felony murder or voluntary manslaughter under the laws of this
state.
84
possibly to the joint tenancy of the ranch property.
But the connection between this evidence and a motive for
McIver’s alleged intent to kill or injure Diane is tenuous at best. As
the trial court observed at the hearing on McIver’s motion for new
trial, “It seems like it would cut against the financial motive,”
because it would prevent McIver from receiving any interest in
Diane’s estate and possibly the ranch property as well. Neither the
Attorney General nor the District Attorney addresses this issue in
their briefs, asserting in conclusory fashion that testimony
regarding the slayer statute was evidence of motive and thus
relevant. 59 The State also fails to address why McIver, if he were
trying to avoid the effect of the slayer statute while intentionally
killing Diane for financial gain, would do so in circumstances where
there could be no question that he shot Diane, in the presence of her
59Both the District Attorney and the Attorney General rely heavily upon
the assertion that McIver invited testimony regarding the slayer statute in
questioning a witness, and thus cannot complain of its introduction. McIver
argues in reply that the witness’ answer was non-responsive and counsel
interposed an objection. But we assume that this will not recur on any retrial.
85
best friend. Without more, this evidence was not relevant to
demonstrate a motive for McIver to murder Diane or his intent to
kill her, and it should have been excluded. 60
(d) McIver next complains that evidence of the cataloging of
Diane’s possessions, as well as the auction of her jewelry, furs, and
other items months after her death, was irrelevant to any issue in
the case and should not have been admitted. The State argued at
trial that this evidence showed that McIver had no sentimental
attachment to Diane’s personal items, indicating that he did not love
60 McIver also asserts that the prejudicial effect of this evidence
substantially outweighs any probative value under Rule 403, arguing
strenuously that the State’s purpose in presenting evidence of the slayer
statute was to convince the jury to return a verdict of guilty at least as to felony
murder. We agree. He points out that the witnesses testified, and the
prosecutor emphasized, that a conviction for an intentional killing would
prevent McIver from inheriting any portion of his wife’s estate. This evidence
had an undue tendency to suggest that the jury should find McIver guilty of
murder rather than involuntary manslaughter in order to punish him by
barring him from inheriting Diane’s property, which would be an improper
basis for decision. Thus, even if relevant, the at best minimal probative value
of the evidence was substantially outweighed by the danger of unfair prejudice.
See Old Chief v. United States, 519 U. S. 172, 180 (B) (1) (117 SCt 644, 136
LE2d 574) (1997) (observing that evidence may create a danger of unfair
prejudice when it has “the capacity . . . to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged” or has “an
undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” (Citations and punctuation omitted.)). So
the evidence should have been excluded under Rule 403 as well.
86
her, only wished to obtain her money, and thus had a motive for
killing her.
We agree that the evidence is relevant. The attorney for
Diane’s estate explained at some length the manner in which the
estate was administered, and his fairly extensive role in advising
McIver, because he believed that McIver had never acted as an
executor before. The attorney testified that one of an executor’s first
duties is to locate all the assets of the estate, although several of
Diane’s friends testified that the cataloging of her possessions made
them uncomfortable. The attorney further explained that he, not
McIver, suggested the sale of Diane’s personal property, because he
reviewed the records of the estate and determined that there was
not sufficient cash in the estate to satisfy the specific bequests listed
in the will. For that reason, he advised McIver to sell Diane’s
clothing, jewelry, and furs to meet the immediate needs of the estate,
because those items were very stylish, expensive, one-of-a-kind
items that would lose their value over time. McIver agreed with this
recommendation, and the property was sold at auction.
87
As the State argues, this evidence was relevant to show a
financial motive on McIver’s part in agreeing to an early sale of
Diane’s property, because the cataloging and immediate sale of the
property, while not directly providing monetary gain to him, would
move the administration of the estate forward and thus contribute
to his earlier receipt of the remaining estate assets. 61 See Slakman
v. State, 280 Ga. 837, 841, 842 (3) (632 SE2d 378) (2006) (evidence
of defendant’s participation in probate proceeding admissible as
logically tending to show defendant’s “greed and his desire for
financial gain from his wife’s death”). In addition, this evidence was
relevant to show McIver’s indifference to Diane’s memory, which
would also go to motive.62 We therefore cannot say that the trial
61 Diane’s will provided that, after specific bequests of real and personal
property to McIver and others, and the distribution of furnishings, art,
“jewelry, clothing and other such personal effects” according to a list referenced
by the will, the residue of the estate was to be placed in a trust for McIver’s
benefit.
62 In his brief, McIver argues only that this evidence was not relevant
and does not assert that it should have been excluded under Rule 403. In any
event, while the probative value of this evidence was low, because of the
attorney’s initiation of the sale, the lack of a direct benefit to McIver, and the
small monetary amount involved compared to the overall value of the estate –
the State presented evidence that Diane’s estate was worth between $3.6 and
88
court abused its discretion in ruling that this evidence was relevant.
(e) McIver also complains that the State improperly elicited
testimony regarding the relative merits of Emory Hospital and
Grady Hospital with regard to treating gunshot wounds and their
distance from the site of the shooting, ostensibly to show that McIver
intentionally directed Carter to drive to Emory in order to delay
Diane’s treatment and increase the likelihood of her death. As noted
above in footnote 4, the State acknowledged during oral argument
in this Court that no evidence was presented at trial that McIver
believed that Grady was better equipped than Emory to treat
gunshot wounds or that he intentionally directed Carter to drive to
Emory to avoid going to Grady. Accordingly, this evidence was not
relevant and should have been excluded.
(f) We reach a different conclusion with regard to evidence of
McIver’s demeanor at the hospital. McIver complains that the State
elicited irrelevant testimony from hospital personnel that McIver
$4.6 million at her death, while the sale realized $67,848 – any prejudicial
effect likewise seems small.
89
shed “no tears” when told that Diane had died, that he was very
calm, and that he did not appear to be upset or distraught. From
this, the State argued in closing that McIver “show[ed] none of the
universal signs of grief.” The trial court denied McIver’s motion in
limine to exclude this evidence and admitted it at trial over his
objection. Evidence of a defendant’s “condition and demeanor” near
the time of the alleged crimes generally is relevant and admissible,
see Morgan v. State, 307 Ga. 889, 895 (3) (a) (838 SE2d 878) (2020),
including witness testimony regarding his or her “perception of [the
defendant’s] demeanor at that time.” (Citations omitted.) Snipes v.
State, 309 Ga. 785, 792 (3) (b) (i) (848 SE2d 417) (2020). McIver
makes no argument that would take the challenged evidence outside
the operation of this general principle. Accordingly, the trial court
did not abuse its discretion in admitting this testimony about
McIver’s demeanor at the hospital.
(g) Finally, McIver contends that the State used a “constant
drumbeat of racial animus” to “inflame the passion of the jury,”
pointing both to evidence and argument by the State to support this
90
contention.
First, a witness testified that McIver told him why he asked for
his gun when Diane and Carter decided to take the Edgewood
Avenue exit from the Downtown Connector: “He [i.e., McIver] was
concerned because of the people that were around, homeless people,
maybe they were carjackers. I didn’t know who they all were. Maybe
they were Black Lives Matter protesters.” McIver asserts that the
State brought one of the charges of influencing a witness – as to
which the trial court granted a directed verdict of acquittal – for the
sole purpose of getting this testimony admitted at trial by the
witness in question, and that its probative value was substantially
outweighed by the danger of unfair prejudice and thus should have
been excluded under Rule 403.
Even putting aside the relevance of this testimony to the
witness-influencing count, McIver’s testimony was relevant to show
what he was thinking in the time leading up to the shooting, and it
was highly probative on that issue because it was McIver’s own
description of why he asked for his gun. While McIver argues that
91
the testimony implied that he was prejudiced against the protesters
on account of their race and thus that he was a person of bad
character, any such prejudice did not substantially outweigh the
probative value of the testimony. Accordingly, the trial court did not
abuse its discretion in admitting this evidence. See Edwards v.
State, 308 Ga. 176, 183 (2) (839 SE2d 599) (2020) (appellant’s
explanation in recorded telephone call of events surrounding fatal
shooting was “highly probative” even though it “may have cast
appellant in an unfavorable light” (Citations omitted.)).
For similar reasons, we conclude that the trial court did not
abuse its discretion in admitting the testimony of Dr. Marty Sellers,
one of the two doctors who told McIver that Diane had died.
Specifically, Dr. Sellers testified that when McIver entered the
consulting room, the other doctor, Dr. Blayne Sayed, asked McIver
to sit down, and McIver responded, “Don’t tell me what to do, boy.”
McIver moved in limine to exclude this evidence as irrelevant and
unfairly prejudicial because it would “[a]ppeal to racial bias” and
“inject . . . racial issues into a trial that has nothing to do with race.”
92
The record shows, however, that Dr. Sayed did not testify at trial,
and Dr. Sellers did not testify about Dr. Sayed’s race, ethnicity, or
age. The trial court ruled that this testimony was relevant as it
showed McIver’s statements and demeanor during the aftermath of
the shooting, and that its probative value was not outweighed by
any unfair prejudice. We conclude that the trial court did not abuse
its discretion in so ruling. 63
Evidence is intrinsic when it pertains to the chain of
events explaining the context, motive, and set-up of the
crime, and is admissible so long as it is linked in time and
circumstances with the charged crime, forms an integral
and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.
There is no bright-line rule regarding how close in time
evidence must be to the charged offenses, or requiring
evidence to pertain directly to the victims of the charged
offenses, for that evidence to be admitted properly as
intrinsic evidence.
63 The trial court also stated that this evidence was admissible to
impeach by contradiction the testimony elicited by the defense on cross-
examination portraying McIver as a grieving husband and “the consummate
Southern gentleman who’s polite to everyone . . . . [and] just an all around
super good guy.” But a character trait may be proved or rebutted only by
testimony as to reputation or in the form of an opinion, unless the character
trait “is an essential element of a charge, claim, or defense or when an accused
testifies to his or her own character.” (Citations, punctuation, and footnote
omitted.) Griffin v. State, 309 Ga. 860, 873 (5) (b) (849 SE2d 191) (2020) (citing
OCGA § 24-4-405). Dr. Sellers’ testimony as to a single instance of conduct on
McIver’s part did not fall within this rule.
93
(Citations and punctuation omitted.) Hughes v. State, 312 Ga. 149,
152 (1) (861 SE2d 94) (2021). Evidence of McIver’s statements at the
hospital, shortly after the shooting and at or near the time of Diane’s
death, was closely linked in time and circumstances to the shooting
and was an integral part of the account of the event. And while
intrinsic evidence may be excluded under Rule 403 if its probative
value is substantially outweighed by unfair prejudice, see Hughes,
312 Ga. at 153 (1), this evidence, while not particularly probative,
was also not particularly prejudicial, especially given that Dr. Sayed
did not testify at trial and his age and ethnicity were not made
known to the jury. Therefore, the trial court did not abuse its
discretion in admitting this testimony.
Finally, with respect to McIver’s contentions as to improper
argument by the State in which it was stated or implied that McIver
harbored racial prejudice, we caution the State and the trial court to
be mindful of the impropriety of such arguments if there is a retrial.
While several portions of the State’s closing argument were
94
questionable,64 we note particularly and with disapproval the
prosecutor’s display of a PowerPoint slide with a bullet point reading
“KKK” during his closing argument. 65 Questioned at oral argument
in this Court, the State ultimately acknowledged that no evidence
was produced at trial to support any inference that the Ku Klux
Klan was relevant to this case.
McIver enumerates the prosecutor’s conduct as error, and he
included in his appellate brief a still frame from a video recording of
the prosecutor’s closing argument, showing the prosecutor gesturing
towards the offending slide in the courtroom. But McIver did not
object at trial, and “we do not review unpreserved challenges to
closing arguments in non-death penalty cases, even for plain error.”
(Citation omitted.) Moon v. State, 311 Ga. 421, 426 (4) (858 SE2d 18)
(2021).
64 As McIver notes, the State emphasized in closing argument both the
Black Lives Matter statement and the statement to Dr. Sellers, making several
pointed comments that, from the cold transcript, appear aimed at suggesting
that McIver was racially biased.
65 This bullet point appeared on the PowerPoint slide immediately below
one referencing “Black Lives Matter” protesters.
95
While this instance of the prosecutor’s conduct therefore
cannot be reviewed as potential reversible error, we strongly caution
the State that this or any similar behavior is not to be repeated upon
any retrial of this case. We have repeatedly noted that in the absence
of relevance, “racial bias or prejudice should not be injected into the
proceedings, as such issue could tend to destroy the impartiality of
the jury and because it would not be relevant.” (Citation and
punctuation omitted.) Merritt v. State, 311 Ga. 875, 884 (3) (860
SE2d 455) (2021); see also Boring v. State, 289 Ga. 429, 434 (711
SE2d 634) (2011) (link between evidence and appellant’s purported
satanic beliefs was “forged only via the State’s opening statement
and closing argument, which itself was improper.” (Citations
omitted.)). Moreover,
[t]he responsibility of a public prosecutor differs from that
of the usual advocate; his duty is to seek justice, not
merely to convict. . . . It has often been stated that it is
the duty of a prosecuting attorney to see that justice is
done and nothing more. That duty should not be forgotten
in an excess of zeal or the eager quest for victory in his
case. The people of the state desire merely to ascertain
beyond a reasonable doubt that the accused is guilty of
the crime charged, and do not countenance any
96
unfairness upon the part of their representatives in court.
(Citations and punctuation omitted.) Carr v. State, 267 Ga. 701, 712
(10) (482 SE2d 314) (1997), overruled in part on other grounds by
Clark v. State, 271 Ga. 6 (5) (515 SE2d 155) (1999); see also Smith
v. State, 288 Ga. 348, 355-356 (10) (b) (703 SE2d 629) (2010) (“In this
regard, we must remind all prosecutors in this State that it is not
their job to pursue stunts and antics during their closing arguments
that are designed merely to appeal to the prejudices of jurors.”)
Judgment affirmed in part and reversed in part. All the
Justices concur, except Peterson, J., not participating, and LaGrua,
J., disqualified.
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