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official text of the opinion.
In the Supreme Court of Georgia
Decided: September 6, 2023
S23A0736. WILKERSON v. THE STATE.
BOGGS, Chief Justice.
Appellant Kentavous Wilkerson challenges his 2019
convictions for felony murder and other crimes in connection with
the shooting death of Bradley Green and the non-fatal shooting of
Rodney Greene. On appeal, Appellant contends that (1) the evidence
was constitutionally insufficient to support his convictions, (2) the
trial court erred in failing to instruct the jury on voluntary
manslaughter, and (3) the trial court abused its discretion in
denying the motions for mistrial that he made following the
prosecutor’s statements to the jury indicating that Appellant had
been in jail for more than two years before trial. For the reasons that
follow, we affirm.1
The crimes occurred on July 15, 2017. On May 28, 2019, a Sumter
1
County grand jury indicted Appellant for felony murder, possession of a
Viewed in the light most favorable to the verdicts, the evidence
at trial showed as follows. On July 15, 2017, hundreds of people
attended an event known as the “Southside Reunion” at a park on
the south side of Americus, Georgia. More than 100 members of the
“Gangster Disciples” street gang, whose territory was on the south
side of Americus, were present at the event. Sakeitha Waters,
Appellant’s sister, attended the event and bought a marijuana
cigarette for five dollars from Greene, who was affiliated with the
Gangster Disciples. She did not feel that she had gotten her money’s
worth and argued with Greene, but he refused to refund her money,
so she snatched a small plastic bag containing pills from his pocket.
Waters then called Appellant and asked if he wanted some pills.
firearm during the commission of a felony, aggravated assault against Green,
and aggravated assault against Greene. At a trial from July 15 to 18, 2019, the
jury found Appellant guilty of all charges. The trial court sentenced Appellant
to serve life in prison with the possibility of parole for felony murder, a
concurrent term of 20 years for the aggravated assault of Greene, and a term
of five years for possession of a firearm during the commission of a felony,
consecutive to the sentence for felony murder. The count of aggravated assault
against Green merged. Appellant filed a timely motion for new trial, which he
amended with new counsel on June 18, 2021. On February 8, 2023, the court
denied Appellant’s motion. Appellant filed a timely notice of appeal, and the
case was docketed to this Court’s April 2023 term and submitted for a decision
on the briefs.
2
After Appellant overheard Greene make threats to Waters during
the call, Appellant asked where she was and asked her to pick him
up. When the phone call ended, Waters returned the pills to Greene,
he refunded her money, and the two of them separated. Waters then
left the park, picked up Appellant, and returned to the park with
him.
Appellant was affiliated with the “Bloods” street gang, which
operated on the north side of Americus, and he arrived at the park
wearing a red bandana, a color associated with the Bloods gang.
Appellant walked directly to Greene, and the two men argued for
several minutes. Greene, described by a witness as “amped,” told
Appellant that he was “not supposed to be on the south side” and
threatened to “f**k [him] up” and make him “bleed” if he did not
leave. Appellant told Greene that he did not want to fight. Several
people approached Appellant and Greene and tried to calm the
situation, with Rogers Jackson and Daryl Lewis leading Appellant
down a street and away from Greene and the reunion, as others
attempted to hold Greene back. Greene, however, followed
3
Appellant down the street and continued to verbally threaten him.
Jackson testified that Appellant said that “he wanted to walk away
peacefully,” and Jackson described Appellant as “chill” during the
altercation. However, Jackson added that Appellant kept reaching
in his back pocket like he had a gun and “warned that he was not
going to be fighting” and that “it’s not going to be good.” Other
witnesses also testified that Appellant was flashing a gun as he was
moving down the street, with one witness stating that Appellant
“was showing [Greene] the pistol” to make Greene know that if it
came to a fight, Appellant “was going to shoot him.”
When Greene was 20 or more feet away from Appellant,
Appellant turned toward Greene and pulled out a gun. A witness
testified that, as Greene was “coming back towards” the crowd and
was no longer facing Appellant, Appellant fired a shot and hit
Greene in the buttocks. After being shot, Greene ran between two
cars toward the crowd. After two or three seconds, as Appellant “was
tracing” Greene through the crowd with the gun, Appellant fired
again but missed Greene and instead struck bystander Green in the
4
chest. One witness described Appellant as taking a “coward shot,”
saying that Appellant “had got far enough away from the scene and
was safe, and fired back into a crowd of people.” Multiple witnesses
testified that although Greene was belligerent, Greene was
unarmed and never struck, swung at, or charged Appellant. After
the shooting, Appellant fled the scene with Waters; the gun was
never recovered. After the shooting, Greene ran into Jackson, who
drove Greene to the hospital. While Greene survived, bystander
Green, who was taken by ambulance to the hospital, died from the
gunshot wound.
Appellant elected not to testify but called a number of defense
witnesses, including Waters, his father, and his cousin. Waters
testified that Greene reached in the front of his pants as though he
were going for a weapon when Appellant and Greene were arguing
face-to-face, but admitted that she never saw Greene with a gun.
Vincent Wilkerson, Appellant’s cousin, testified that once the
shooting started, he walked to his car to leave the event. As he was
doing so, Greene, who was holding a “.38 snub nose” revolver, came
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“running towards [him]” and was “hollering” at him. Greene got into
the passenger side of a car, sitting with one leg in the car and one
leg outside the car. Greene was by himself. Vincent added that
Greene pulled down his pants and showed him where he had been
shot. Vincent could see the bullet sticking out of Greene’s “butt.”
Vincent testified that he assured Greene that he would be “all right.
It’s only a flesh wound.” Vincent spoke with Greene for several
minutes, and no one else came to the car during that time.
Christopher Wilkerson, Appellant’s father, testified that, during the
initial part of the altercation between his son and Greene, Greene
put his hand on the handle of a gun that was in his waistband but
did not pull it out. Christopher did not see the shooting. Both
Vincent and Christopher acknowledged that the first time they had
told anyone that Greene was armed was in conversation with
defense counsel a few weeks before trial. Another defense witness
testified at trial that she had only heard two shots and never saw
Greene with a gun, but in her statement to the police on the night of
the crimes, which was played for the jury, she said that she thought
6
she had heard three shots and that she had seen smoke near Greene
but did not see him with a gun.
The State called Jackson as a witness again to rebut Vincent’s
testimony of his encounter with Greene. Jackson testified that
shortly after the shots were fired, he saw Greene and they both ran
to Jackson’s car. According to Jackson, Greene was not holding a
gun. Jackson added that, when they got to Jackson’s car, Jackson
reclined his passenger seat and Greene laid face down on it, facing
the backseat of the car. Jackson testified that Greene did not speak
to anyone before Jackson drove him to the hospital.
1. Appellant argues that the evidence was constitutionally
insufficient to support his convictions because the evidence showed
that he acted in self-defense. We disagree.
When evaluating the sufficiency of the evidence as a matter of
federal due process, we view the evidence presented at trial in the
light most favorable to the verdicts and consider whether it was
sufficient to authorize a rational trier of fact to find the defendant
guilty beyond a reasonable doubt of the crimes of which he was
7
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979); Moore v. State, 311 Ga. 506, 508 (858 SE2d
676) (2021). This “limited review leaves to the jury the resolution of
conflicts in the evidence, the weight of the evidence, the credibility
of witnesses, and reasonable inferences to be made from basic facts
to ultimate facts.” Rich v. State, 307 Ga. 757, 759 (838 SE2d 255)
(2020) (cleaned up).
At trial, Appellant claimed that he acted in self-defense, and
the trial court instructed the jury to consider that affirmative
defense. “[A] person is justified in using force which is intended or
likely to cause death or great bodily harm only if he . . . reasonably
believes that such force is necessary to prevent death or great bodily
injury to himself . . . .” OCGA § 16-3-21 (a). “When a defendant
presents evidence that he was justified in using deadly force, the
State bears the burden of disproving the defense beyond a
reasonable doubt.” Birdow v. State, 305 Ga. 48, 50 (823 SE2d 736)
(2019). However, “[a]s we have explained before, issues of witness
credibility and the existence of justification are for the jury to
8
determine, and it is free to reject a defendant’s claim that he acted
in self-defense.” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019)
(cleaned up).
The evidence here authorized the jury to reject Appellant’s
claim that he shot the victims because he reasonably feared for his
life. Although many witnesses testified that Greene was the
aggressor during the altercation and several members of Appellant’s
family testified that Greene was armed, multiple witnesses testified
that Greene was unarmed, that Greene never moved to strike
Appellant, and that the confrontation was entirely verbal before
Appellant opened fire. And even the defense witnesses who testified
that Greene had a weapon did not testify that they saw him draw
the weapon before the shooting or that Appellant was aware of the
weapon. Moreover, at the time of the shooting, Greene and
Appellant were no longer arguing face-to-face, and Appellant was
separated from Greene by a distance of 20 or more feet. Greene was
also hit in the buttocks, supporting witness testimony that he was
turned away from Appellant at the time of the shooting. Finally,
9
there was testimony that Appellant “was tracing” Greene through a
crowd while Greene was running away from Appellant when he fired
the shot that struck and killed Green, an innocent bystander.2 When
viewed in the light most favorable to the verdicts, the evidence
presented at trial was sufficient to authorize a rational jury to find
beyond a reasonable doubt that Appellant did not shoot at Greene
in self-defense and that Appellant instead was guilty of the crimes
for which he was convicted, including felony murder and aggravated
assault. See Jackson v. State, 315 Ga. 543, 550-551 (883 SE2d 815)
(2023) (holding that where, among other things, there was evidence
showing that the victims were not armed at the time of the shooting
and that one of the victims was walking away from the defendant
2 We note that the trial court charged the jury on the doctrine of
transferred intent. Under that doctrine, “when an unintended victim is struck
down as a result of an unlawful act actually directed against someone else, the
law prevents the actor from taking advantage of his own wrong and transfers
the original intent from the one against whom it was directed to the one who
actually suffered from it.” Smith v. State, 315 Ga. 357, 364 (882 SE2d 289)
(2022) (cleaned up). Similarly, the trial court charged on the principle of
transferred justification, under which “no guilt attaches if an accused is
justified in shooting to repel an assault, but misses and kills an innocent
bystander.” Howard v. State, 307 Ga. 12, 22 (834 SE2d 11) (2019) (cleaned up).
10
when he was shot, the jury was authorized to reject the defendant’s
claim of self-defense).
2. Appellant contends that the trial court committed plain
error in failing to charge the jury on voluntary manslaughter. We
disagree.
Although Appellant requested a charge on voluntary
manslaughter, the trial court informed the parties that it would not
give the charge. In its charge to the jury, the trial court did not
charge on voluntary manslaughter, and Appellant did not object to
the court’s failure to do so. For that reason, we review Appellant’s
claim for plain error only. See OCGA § 17-8-58 (b); Davis v. State,
312 Ga. 870, 873 (866 SE2d 390) (2021) (explaining that the failure
to charge the jury on voluntary manslaughter could be reviewed only
for plain error where the appellant “made a written request for a
jury charge on voluntary manslaughter” and argued the point at the
charge conference but “did not object to the omission of the charge
after the trial court instructed the jury”). Reversal is not authorized
under plain error review unless “the instruction was erroneous, the
11
error was obvious, the instruction likely affected the outcome of the
proceedings, and the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Davis, 312 Ga. at 873-874. “We need not analyze all of the elements of this test when, as
in this case, the defendant has failed to establish one of them.” Jones
v. State, 314 Ga. 466, 469 (877 SE2d 568) (2022) (cleaned up).
A person commits voluntary manslaughter when he causes the
death of another “under circumstances which would otherwise be
murder and if he acts solely as the result of a sudden, violent, and
irresistible passion resulting from serious provocation sufficient to
excite such passion in a reasonable person.” OCGA § 16-5-2 (a). “A
trial court is required to grant the defendant’s request for a charge
on the lesser included offense of voluntary manslaughter if there is
any evidence, however slight, to support such a charge. Whether
such slight evidence exists is a question of law.” Munn v. State, 313
Ga. 716, 721 (873 SE2d 166) (2022) (cleaned up).
Appellant argues that a voluntary manslaughter instruction
was justified because Greene seriously provoked Appellant,
12
emphasizing that the two were involved in a heated argument
during which Greene pursued, verbally abused, and threatened to
harm Appellant. However, “neither fear that someone is going to
pull a weapon nor fighting are the types of provocation that demand
a voluntary manslaughter charge.” Rountree v. State, 316 Ga. 691,
694 (889 SE2d 803) (2023) (cleaned up). Accord Burke v. State, 302
Ga. 786, 790-791 (809 SE2d 765) (2018) (explaining that “acting out
of fear of bodily harm is not the same as acting in the heat of passion,
and only evidence of the latter supports a voluntary manslaughter
conviction”). Moreover, “angry statements alone ordinarily do not
amount to ‘serious provocation’ within the meaning of OCGA § 16-5-2 (a). To put it simply, words alone generally are not sufficient
provocation to excite the passion necessary to give rise to voluntary
manslaughter.” Rountree, 316 Ga. at 694 (cleaned up).
Indeed, “words alone, regardless of the degree of their
insulting nature, will not in any case justify the
excitement of passion so as to reduce the crime from
murder to manslaughter when the killing is done solely
on account of the indignation aroused by use of
opprobrious words.”
13
Id. at 694-695 (cleaned up).
Appellant did not testify at trial, and testimony at trial
described him as “chill” during the altercation. Moreover, the
threatening words that witnesses testified were used by Greene
“were still only words.” Id. at 695. For the foregoing reasons, we
conclude that Appellant has failed to show that the trial court erred
by failing to charge the jury on voluntary manslaughter, much less
that the trial court committed plain error. See id. (holding that
neither the defendant’s fear arising from evidence that the victim
brought a gun to his home nor the victim’s use of threatening words
required a charge on voluntary manslaughter); Behl v. State, 315
Ga. 814, 816-817 (885 SE2d 7) (2023) (rejecting the defendant’s
contention that evidence of “‘heated arguments and physical
beatings’” that preceded the killing of the victim warranted a charge
on voluntary manslaughter); Collins v. State, 312 Ga. 727, 740 (864
SE2d 85) (2021) (the defendant’s testimony did not require a charge
on voluntary manslaughter where the defendant testified that the
victim called him a “‘mother f**ker’ to his face, threatened to kill
14
him, and pulled a handgun on him,” but “never testified that he was
angry or mad or that he had any other response showing he might
have reacted passionately”).
3. Appellant contends that the trial court abused its discretion
in denying motions for mistrial that he made following the
prosecutor’s statements to the jury indicating that Appellant had
been in jail for more than two years before trial. We conclude that
the trial court did not abuse its discretion in denying the motions for
mistrial.
At trial, Appellant called his cousin, Vincent Wilkerson, as a
witness. Vincent testified, among other things, that he had seen
Greene with a gun on the day of the crimes. On cross-examination,
Vincent acknowledged that the first time that he had told anyone
about Greene’s possession of a gun was when he told defense counsel
“a few weeks” before trial. The prosecutor asked Vincent if he knew
that Appellant had been arrested for murder shortly after the crimes
and had been incarcerated awaiting trial on the charges for just over
two years. Vincent responded that he did, and the prosecutor asked
15
Vincent why, knowing that his cousin “was sitting in jail,” he had
not told anyone that he saw Greene with a gun during the two year
period before he informed defense counsel. Appellant moved for a
mistrial on the ground that the prosecutor had improperly placed
his character in evidence. The trial court denied the motion, but
instructed the State to avoid reference to Appellant’s custodial
status. A curative instruction was given to the jury noting that the
fact that the defendant was held in jail, if true, was not to be held or
considered against him. After the defense rested, the State called a
rebuttal witness, which prompted Appellant to recall Vincent to the
stand. On cross-examination, the prosecutor again asked Vincent
why he waited two years to inform anyone that he had seen Greene
with a gun, knowing that Appellant was in jail awaiting trial on
charges relating to the shooting of Greene. Appellant did not move
for a mistrial at that time. Instead, only after Appellant engaged in
further direct examination of Vincent and after the evidence was
closed and the trial court discharged the jury for the day did
Appellant move for a mistrial. The trial court denied the motion.
16
Even assuming that Appellant’s second motion for mistrial
was timely, Appellant has failed to show that the trial court abused
its discretion in denying both the first and second motions. “Whether
to grant a motion for mistrial is within the trial court’s sound
discretion, and the trial court’s exercise of that discretion will not be
disturbed on appeal unless a mistrial is essential to preserve the
defendant’s right to a fair trial.” Allen v. State, 315 Ga. 524, 532 (883
SE2d 746) (2023) (cleaned up). Appellant claims that the prosecutor
placed prejudicial information about his character before the jury
and that a mistrial was necessary to preserve his right to a fair trial.
We disagree.
We have held that “evidence that an accused has been confined
in jail in connection with the case at issue does not place his
character in evidence.” Bright v. State, 292 Ga. 273, 275 (736 SE2d
380) (2013) (quoting Jackson v. State, 284 Ga. 484, 486 (668 SE2d
700) (2008)). Accord Early v. State, 313 Ga. 667, 671 (872 SE2d 705)
(2022) (explaining that “the jury would not have been unfairly
influenced by the fact that a defendant charged with murder was
17
being detained while awaiting trial”); Rivers v. State, 296 Ga. 396,
402 (768 SE2d 486) (2015) (“evidence that an accused has been
confined in jail in connection with the case at issue does not place
his character in evidence”), overruled on other grounds by State v.
Lane, 308 Ga. 10, 23 (Appendix) (838 SE2d 808) (2020). Accordingly,
here, because the prosecutor’s references to Appellant being in jail
for the charges on which he was on trial did not place his character
in issue, we conclude that the trial court did not abuse its discretion
in denying Appellant’s motions for mistrial. See Rivers, 296 Ga. at
402 (holding that question on cross-examination referencing that
the defendant had been in jail in connection with the case for which
he was on trial did not place his character in evidence and did not
warrant the grant of a mistrial).3
3 Appellant also contends on appeal that the trial court should have
granted a mistrial because the prosecutor’s comment undermined the
presumption of innocence, but Appellant did not raise this ground for mistrial
at trial, and we therefore do not address it. See Jeffers v. State, 290 Ga. 311,
314 (721 SE2d 86) (2012) (noting that “standard practice . . . allows parties to
raise on appeal only the same objections that were properly preserved below”
and holding that the defendant failed to preserve a ground for mistrial raised
on appeal that was different from the ground asserted at trial).
18
Judgment affirmed. All the Justices concur.
19