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: August 21, 2023
S23A0601. LOCKLEAR v. THE STATE.
BETHEL, Justice.
A jury found Tony James Locklear guilty of the malice murder
of William Long, concealing a death, and related charges. 1 On
appeal, Locklear challenges the sufficiency of the evidence
supporting his convictions. He also argues that the trial court erred
by (1) failing to suppress statements made during his custodial
1 On January 9, 2019, a Chatham County grand jury indicted Locklear
for malice murder, felony murder, aggravated assault, and concealing the
death of another. Locklear was tried before a jury from November 18 to 21,
2019, and he was found guilty of all counts. The trial court sentenced Locklear
as a recidivist under OCGA § 17-10-7 (a) and (c) to serve life in prison for malice murder and a consecutive term of ten years for concealing the death of another.
The felony murder count was vacated by operation of law, and the aggravated
assault count merged into the malice murder conviction. Locklear filed a timely
motion for new trial on November 26, 2019, which he amended through new
counsel on January 7, 2022, and August 15, 2022. Following a hearing, the trial
court denied Locklear’s motion for new trial as amended. Locklear filed a
timely notice of appeal, and his appeal was docketed in this Court to the April
2023 term and submitted for a decision on the briefs.
interview; (2) denying his motion to suppress certain physical
evidence; (3) providing a confusing verdict form to the jury; and
(4) refusing to grant a mistrial after the prosecutor made improper
comments during closing arguments. Because the evidence was
clearly sufficient to support Locklear’s convictions and because the
trial court committed no reversible error with respect to Locklear’s
other enumerations of error, we affirm.
1. Locklear first asserts that the evidence was insufficient to
support his convictions. When considering the sufficiency of
evidence, we ask “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime[s] beyond a
reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443
U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
Viewed in this light, the evidence at trial showed as follows. On
the morning of October 13, 2018, 82-year-old William Long left his
home for work but did not return that evening and did not answer
his phone when family and friends tried to contact him. The next
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day, with Long still missing, his son, Robert Long, accessed his
father’s phone records, which showed that Long’s last call was made
at 8:51 a.m. on October 13. Robert began calling the most recent
phone numbers that his father had called, and he reached Locklear,
who stated that he had worked for and been fired by Long on four
occasions but had contacted Long recently to inquire about more
work. Locklear indicated that Long had agreed to hire him and was
supposed to pick him up the previous morning but never arrived.
In the meantime, Floyd Williams, Long’s friend, decided to look
for Long at job sites where Long had recently worked. Williams,
accompanied by his grandson, soon located Long’s truck with
Locklear asleep inside. While Williams’ grandson was peeking in the
truck’s window, Locklear awoke and drove off, nearly hitting
Williams’ grandson in the process. Williams and his grandson gave
chase, followed the truck for about ten minutes, lost it briefly, and
then found it abandoned in a residential area with its door open and
the key still in the ignition. Williams contacted police during the
pursuit, and responding officers found Locklear about ten feet from
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the truck hiding behind a tree and holding a small knife to his own
neck. After being detained, Locklear told officers that he intended to
“end it all” and expected to spend the rest of his life in prison. The
officers then transported Locklear to the police station.
During a custodial interview, Locklear, who was homeless and
had been camping in a wooded area, described the events leading to
Long’s death and told police where to find Long’s body. According to
Locklear, he “ha[s] blackouts sometimes,” and, although he could not
remember anything about the incident when he first awoke on the
morning of October 14, his memories had started to return. Locklear
claimed that Long “put his hands on [Locklear] and pulled
[Locklear’s] pants down,” which, he said, caused him to blackout.
Locklear reported discovering Long’s body near his campsite. Police
later learned that Locklear left a voicemail for his son and daughterin-law the morning of October 14, explaining that he “need[ed]
[them] bad” and had “f**ked up.”
Officers located Long’s body in a wooded area about 50 yards
from Locklear’s tent. The body had been rolled in a plastic tarp,
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placed in a sleeping bag, and wrapped in trash bags with twine tied
around the head and feet; debris had been heaped on the body. Police
obtained a warrant to search Locklear’s tent and, inside, found the
same twine used to bind Long’s body, as well as a knife that
appeared blood-stained and on which Long’s DNA was later
identified. The autopsy revealed that Long had suffered 21 sharp
and blunt force injuries — mostly to his head and neck — the totality
of which resulted in his death. It appeared from the autopsy that
one wound was inflicted by a screwdriver, and police located a
screwdriver during a subsequent search of Locklear’s tent.
Locklear’s theory of defense at trial was that he acted in selfdefense after Long attempted to commit a forcible felony —
aggravated oral sodomy — against him. Locklear did not testify or
offer any evidence in support of his defense and instead relied solely
on his statements made during the custodial interview. The
evidence recounted above was plainly sufficient to sustain Locklear’s
convictions as a matter of constitutional due process. See Jackson,
443 U. S. at 319 (III) (B). Locklear’s arguments to the contrary are
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unavailing.
Locklear first argues that the evidence was insufficient to
support his conviction for malice murder because, he says, the State
did not produce any evidence to contradict his claim of self-defense.
He also contends that, even if his actions did not rise to the level of
self-defense, the evidence showed that he acted in a heat of passion
and that he should have been found guilty of voluntary
manslaughter, rather than malice murder. “But questions about the
existence of justification are for a jury to decide,” Corley v. State, 308
Ga. 321, 322 (1) (a) (840 SE2d 391) (2020), as are questions about
the sufficiency of provocation to support a verdict of voluntary
manslaughter, see McNair v. State, 296 Ga. 181, 182 (1) (766 SE2d
45) (2014). And contrary to Locklear’s contention, the State
presented significant evidence contradicting his self-serving version
of events, including evidence showing that Locklear used both a
knife and a screwdriver to stab the 82-year-old Long 21 times and
subsequently took extensive measures to conceal Long’s body. See
Martin v. State, 306 Ga. 538, 541 (1) (832 SE2d 402) (2019) (evidence
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that appellant “took extreme measures to destroy and conceal
evidence” undermined his claim of self-defense); Ferguson v. State,
297 Ga. 342, 344 (1) (773 SE2d 749) (2015) (jury was authorized to
reject appellant’s unrebutted testimony that he acted in selfdefense, especially in light of “evidence that appear[ed] at odds with
[appellant’s] account, as, for example, the sheer number of stab
wounds sustained by [the victim], which is indicative of an
aggressive attack rather than defensive maneuverings”).
Turning to the conviction for concealing a death, Locklear
argues that, because he told police where to find Long’s body, he did
not hinder discovery of Long’s murder. 2 But the evidence showed
that Locklear went to great lengths to conceal Long’s death: Long’s
body was found in a wooded area, about 50 feet from the wood line,
wrapped in a sleeping bag and plastic tarp, tied with twine, and
covered with trash, and investigating officers found blood spatter on
trees about 15 yards from where Long’s body was located, indicating
2 “A person who, by concealing the death of any other person, hinders a
discovery of whether or not such person was unlawfully killed is guilty of a
felony[.]” OCGA § 16-10-31.
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that the body was moved. In addition, when contacted by Long’s son,
Locklear prevaricated, indicating that he had not seen Long, despite
knowing both where Long was and that he was dead. That Locklear
eventually told police where to find Long’s body does not negate the
fact that Locklear concealed Long’s death when he “hindered
discovery” of the facts that Long “was dead and was the victim of an
unlawful homicide.” White v. State, 287 Ga. 713, 716-717 (1) (c) (699
SE2d 291) (2010) (sufficient evidence supported conviction for
concealing death of another where appellant removed victim’s body
from site where she was killed and falsely told victim’s children and
police that victim was missing when he knew she was dead). The
evidence at trial was more than sufficient to support Locklear’s
convictions for malice murder and concealing the death of another.
2. Locklear next asserts that the trial court erred by failing to
suppress incriminating statements made during his custodial
interview at the police station, which he says were made after he
invoked his right to remain silent under the Fifth Amendment to the
United States Constitution. To establish that he invoked his right to
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remain silent, Locklear points to body-camera footage taken at the
location where he was detained that shows an officer asking
Locklear, who was handcuffed in the backseat of a police car, how
he obtained Long’s truck and Locklear responding, “Bill c[a]me by
yesterday, okay, that’s as far as I’m going with it.” This claim fails.
The record shows that Locklear filed a pre-trial motion to
suppress statements he made after first being detained by police and
later during the custodial interview at the police station on the
grounds that police questioned him without giving him the warnings
required by Miranda 3 and that he invoked his right to remain silent
but was ignored. Following a Jackson-Denno 4 hearing, the trial
court granted Locklear’s motion and suppressed his statements
made at the scene after Locklear was asked how he came into
possession of Long’s truck, finding that officers questioned Locklear
without first advising him of the Miranda warnings. But the trial
court denied the motion as to statements made during the custodial
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
4 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
9
interview at the police station, finding that Locklear was advised of
the Miranda warnings prior to the interview and that he understood
his rights, voluntarily waived them, and gave his statements freely
and voluntarily.
Though Locklear’s motion expressly asserted a second basis for
suppression — that the officers failed to honor his invocation of his
right to remain silent, the same argument he raises on appeal — the
trial court made no ruling on that issue. It does not appear from the
record that Locklear moved for reconsideration or otherwise brought
to the trial court’s attention its failure to rule on the issue of whether
he invoked his right to remain silent, nor did Locklear renew his
objection to the admission of this evidence at trial. Accordingly, we
review this claim only for plain error. See Goins v. State, 310 Ga.
199, 204 (4) (850 SE2d 68) (2020) (applying plain-error review where
appellant moved to suppress evidence on certain grounds but trial
court did not rule on the motion and appellant did not request a
ruling or object when the evidence was admitted at trial); Lofton v.
State, 309 Ga. 349, 358 (4) (846 SE2d 57) (2020) (same); OCGA § 24-10
1-103 (d).
To prevail on this claim, [Locklear] must demonstrate
that the trial court committed an error that was not
affirmatively waived, was obvious beyond reasonable
dispute, likely affected the outcome of his trial, and
seriously affected the fairness, integrity, or public
reputation of judicial proceedings.
Goins, 310 Ga. at 204 (4). “And if an appellant fails to establish any
one of these elements, his plain error claim fails.” Wright v. State,
315 Ga. 459, 462 (3) (883 SE2d 294) (2023).
We have explained that “[p]olice must scrupulously honor a
suspect’s right to remain silent if the person clearly and
unambiguously states that he wants to end a custodial
interrogation.” (Punctuation omitted.) Causey v. State, 307 Ga. 147,
148-149 (2) (834 SE2d 857) (2019). “Whether an invocation is
unambiguous and unequivocal depends on whether the accused
articulated a desire to cut off questioning with sufficient clarity that
a reasonable police officer in the circumstances would understand
the statement to be an assertion of the right to remain silent.” Sillah
v. State, 315 Ga. 741, 748 (2) (883 SE2d 756) (2023). “[I]f a defendant
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equivocates in asserting the right, a police officer is under no
obligation to clarify or to stop questioning.” (Punctuation omitted.)
Causey, 307 Ga. at 149 (2).
To support his claim that he invoked his right to remain silent,
Locklear relies on his statement made at the scene in response to
the officer’s question about how he obtained Long’s truck, “Bill
c[a]me by yesterday, okay, that’s as far as I’m going with it”; he also
points to his refusal to answer some of the officer’s subsequent
questions as evidence of invocation. But neither that statement nor
Locklear’s subsequent silence was “an invocation of his right to
remain silent, let alone an ‘unequivocal and unambiguous’ one.”
Dozier v. State, 306 Ga. 29, 34 (4) (a) (829 SE2d 131) (2019). A
reasonable law enforcement officer instead would have understood
Locklear’s statement to mean only that he did not want to discuss in
greater detail what happened in relation to Long’s truck, not that he
did not want to speak to police at all. 5 See Cheley v. State, 299 Ga.
5 To that end, about a minute after Locklear made the statement, the
officer asked, “You don’t want to tell us about what happened after [Long] came
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88, 91 (2) (786 SE2d 642) (2016) (considered in context, a reasonable
officer would have understood appellant’s statement that he was
“completely finished” to mean “only that [appellant] had lost
patience with the repeated and continued questions about what he
had done before buying gasoline and that he wanted to know what
the investigators were investigating” (emphasis in original)); Barnes
v. State, 287 Ga. 423, 425 (2) (696 SE2d 629) (2010) (appellant’s
statement “‘if you’re not going to talk real talk, then we shouldn’t
talk’ was not an unequivocal and unambiguous invocation of his
right to remain silent” because “it was conditional and ambiguous,
and lacked sufficient clarity to lead a reasonable police officer to
understand that [appellant] was exercising his right to remain
silent”). Locklear’s contention that he invoked his right to remain
silent by not answering the officer’s subsequent questions is likewise
unavailing because his refusal to respond does not amount to an
“unambiguous and unequivocal invocation.” See Berghuis v.
by and picked you up?” and Locklear responded by shaking his head in the
negative.
13
Thompkins, 560 U. S. 370, 381 (III) (B) (130 SCt 2250, 176 LE2d
1098) (2010) (rejecting argument that defendant invoked the right
to remain silent “by not saying anything for a sufficient period of
time”).
Because Locklear did not unambiguously and unequivocally
invoke his right to remain silent, the officers at the scene and, later,
at the police station, had no obligation to stop questioning him.
Accordingly, the trial court did not commit clear error by admitting
Locklear’s subsequent statements made during the custodial
interview, and Locklear has failed to establish plain error.
3. Locklear also challenges the trial court’s denial of his motion
to suppress evidence obtained during the search of his tent, arguing
that the search warrant was premised on his custodial statement
which, he asserts, was obtained in violation of his right to remain
silent. In light of our holding in Division 2, this claim fails.
4. In his fourth enumeration of error, Locklear contends that
the trial court erred by providing what he says was a confusing and
incomplete pre-printed verdict form to the jury. As Locklear
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concedes, he failed to object to the verdict form at trial, so we review
this claim only for plain error. See OCGA § 17-8-58 (b).
“In deciding whether a verdict form accurately presented the
law and properly guided the jury, this Court reviews the language
of the form along with the trial court’s instructions to the jury.”
Atkins v. State, 310 Ga. 246, 252 (3) (850 SE2d 103) (2020).
[A] verdict form is erroneous when the form would
mislead jurors of reasonable understanding, or the trial
court erroneously instructed the jury on the presumption
of innocence, the State’s burden of proof, the possible
verdicts that could be returned, or how the verdict should
be entered on the printed form. A preprinted verdict form
is treated as part of the jury instructions which are read
and considered as a whole in determining whether there
is [instructional] error.
(Punctuation omitted.) Id.
The challenged language of the pre-printed verdict form read
as follows:
As to the homicide, we the jury, find sufficient mitigating
evidence of passion or provocation beyond a reasonable
doubt which causes the offense to be reduced to the
offense of Voluntary Manslaughter;
OR
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As to the homicide, we do not find sufficient mitigating
evidence of passion or provocation beyond a reasonable
doubt which causes the offense to be reduce[d] to the
offense of Voluntary Manslaughter.
Locklear argues that the verdict form was deficient because, as he
reads it, the form improperly required the jury, in order to find him
not guilty of the lesser offense of voluntary manslaughter, to find
him not guilty beyond a reasonable doubt.6 We agree that, standing
alone, this part of the verdict form — specifically, the unnecessary
insertion of the “beyond a reasonable doubt” standard with respect
to the presence of mitigating circumstances — is inartful and
potentially confusing. 7 But it is axiomatic that we do not assess jury
6 Locklear also complains that the verdict form was erroneous because it
required the jury to consider the lesser offense of voluntary manslaughter
before considering the remaining offenses. But our precedent makes clear that
this instruction, in fact, was proper, and, thus, this argument is without merit.
See, e.g., White v. State, 291 Ga. 7, 9 (3) (727 SE2d 109) (2012) (“[T]he trial
court . . . properly instructed the jury that it had to consider whether
mitigating circumstances reduced the killing to voluntary manslaughter before
it was authorized to return a guilty verdict on the malice murder or felony
murder charge.”); Terry v. State, 291 Ga. 508, 510 (2) (731 SE2d 669) (2012)
(same); Miner v. State, 268 Ga. 67, 68 (4) (485 SE2d 456) (1997) (same).
7 The State bears the burden of proving beyond a reasonable doubt that
an offense was not mitigated by passion or provocation. See Morris v. State,
303 Ga. 192, 200 (V) (C) (811 SE2d 321) (2018). But the determination of
whether an offense was mitigated by passion or provocation turns not on
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charges in isolation; rather, we “consider them as a whole to
determine whether there is a reasonable likelihood the jury
improperly applied a challenged instruction.” Johnson v. State, 312
Ga. 481, 490 (3) (863 SE2d 137) (2021). And in light of the charges
as a whole, Locklear has not shown that the inartful nature of the
verdict form likely affected the outcome of the proceedings.
As an initial matter, the remainder of the preprinted verdict
form correctly stated the burden of proof with respect to each
charged offense. 8 The record also shows that the trial court properly
instructed the jury on the charged offenses, the lesser offense of
voluntary manslaughter, the State’s burden of proof, the possible
verdicts that could be returned, and how to enter the verdicts on the
whether the evidence shows beyond a reasonable doubt that the offense was so
mitigated but rather whether the evidence shows that the offense resulted
from provocation “sufficient to excite [a sudden, violent, and irresistible]
passion in a reasonable person.” OCGA § 16-5-2 (a). Thus, the jury is tasked
with determining whether the evidence of passion or provocation was sufficient
to create a reasonable doubt with respect to guilt.
8 For each of the four charged offenses, the verdict form required the jury
to select between two options: “We, the jury, find beyond a reasonable doubt
the Defendant, Tony Locklear is GUILTY of [the charged offense]” or “We, the
jury, find the Defendant, Tony Locklear, NOT GUILTY of [the charged
offense].”
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printed form. In addition, the trial court instructed the jurors three
separate times that they were required to consider whether
mitigating circumstances caused the offense of murder to be reduced
to voluntary manslaughter and that the State bore the burden of
proving beyond a reasonable doubt that the offense was not
mitigated.9 The trial court twice asked whether the jurors
understood that instruction, and the jurors responded affirmatively
both times. The trial court also cautioned the jurors that, if they
found that Long’s killing occurred as a result of passion or
provocation, they could not return a guilty verdict on the malice
murder or felony murder counts. And the trial court provided several
copies of the written instructions for the jury to reference during
deliberations. See Howard v. State, 288 Ga. 741, 745 (3) (707 SE2d
80) (2011) (“[T]he presence of the written instructions in the jury
room would have served to enlighten, rather than confuse, the
9 The trial court gave no indication during its verbal instructions that
the beyond-a-reasonable-doubt standard applied to the jury’s consideration of
the existence of mitigating circumstances and instead properly limited the
application of that standard to the State’s burden of proving the absence of
mitigation.
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jury.”). Accordingly, Locklear has not shown that the verdict form
affected the outcome at trial and, thus, has not demonstrated plain
error.
5. Finally, Locklear asserts that the trial court abused its
discretion by denying his motion for mistrial following the
prosecutor’s improper comments during closing arguments. The
record shows that, as part of her final summation, the prosecutor
commented, “I know [Locklear’s] in a wheelchair now. Not really
sure why, other than to weigh on your sympathies.” Locklear
objected to this argument as improper, which the trial court
sustained. Near the end of her closing argument, the prosecutor
characterized the jury’s role as “speak[ing] for the community” and
insisted that, if the jury found Locklear guilty only of voluntary
manslaughter, “[i]t’s open season for murder.” Locklear again
objected, and the trial court again sustained his objection. After the
prosecutor had finished her argument and the jury had been excused
from the courtroom, Locklear moved for a mistrial or, alternatively,
a curative instruction. The trial court denied the motion for mistrial
19
and determined that a curative instruction was not warranted,
reasoning that the general jury instructions sufficed to remedy the
prosecutor’s comments. Pretermitting whether Locklear timely
moved for a mistrial, we see no abuse of discretion in the trial court’s
denial of the mistrial.
A trial court has broad discretion in ruling on a motion for
mistrial, “and the denial of a mistrial is reversible error only if it
appears that a mistrial was essential to preserve the defendant’s
right to a fair trial.” (Citation and punctuation omitted.) McKibbins
v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013). While the
prosecutor’s comments here were indeed improper, Locklear cannot
establish that a mistrial was essential to preserve his right to a fair
trial.
The record shows that the prosecutor’s comments were
fleeting, and the trial court sustained Locklear’s objections in the
presence of the jury. Moreover, as part of its general charge to the
jury, the trial court defined evidence, instructed that closing
arguments are not evidence, and explained that only testimony and
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other evidence presented during the evidentiary portion of the trial
could be considered in reaching a verdict. The trial court also
instructed the jury that it was duty-bound “to consider the facts
objectively without favor, affection, or sympathy to any party” and
was “not permitted to be governed by sympathy or prejudice or
because of public opinion.” “We presume that jurors follow the law.”
(Punctuation omitted.) Kessler v. State, 311 Ga 607, 614 (3) (858
SE2d 1) (2021). Under these circumstances, any harm that flowed
from the prosecutor’s improper comments did not affect Locklear’s
right to a fair trial, and we cannot say that the trial court abused its
broad discretion when it denied a mistrial. See id.; Fulcher v. State,
297 Ga. 733, 736 (3) (778 SE2d 159) (2015). See also Reed v. State,
291 Ga. 10, 17 (4) (b) (727 SE2d 112) (2012) (“[E]ven when an
objection to improper argument is sustained but a mistrial is denied,
other action, including the giving of curative instructions, is not
mandatory.”).
Judgment affirmed. All the Justices concur.
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