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: December 20, 2024
S24A1374. BENNETT v. THE STATE.
BOGGS, Chief Justice.
Appellant DeMarvin Ladele Bennett challenges his convictions
for malice murder and other crimes in connection with the shooting
death of 73-year-old Jack Hough. Appellant contends that the
evidence was constitutionally insufficient to support his conviction
for malice murder, that the trial court abused its discretion by
admitting evidence of his 2012 guilty plea conviction for robbery,
that the trial court erred by instructing the jury that it could
consider that 2012 conviction for the purpose of showing intent, and
that the trial court erred by failing to give a jury instruction on
accident. For the reasons explained below, we affirm. 1
1 The crimes occurred on February 7, 2019. On February 26, 2019, a Hall
County grand jury indicted Appellant for malice murder (Count 1), four counts
1. The evidence presented at trial showed the following. 2 On
the evening of February 7, 2019, Jack, who was 73 years old, went
with his wife Gail to a pharmacy in Gainesville so she could pick up
her prescription. Security camera footage from inside the pharmacy
showed Gail walking into the store at 7:47 p.m. Jack remained in
the driver’s seat of his black Mercedes-Benz. Around the time Gail
entered the pharmacy, witnesses in the parking lot noticed a tall,
of felony murder (Counts 2-5), criminal attempt to commit robbery (Count 6),
robbery against a person 65 years of age or older (Count 7), possession of a
firearm by a First Offender probationer (Count 8), aggravated assault with a
deadly weapon against a person 65 years or older (Count 9), and possession of
a firearm during the commission of a felony (Count 10). At a trial from April
26 to 29, 2021, the jury found Appellant guilty of all counts except robbery and
felony murder predicated on robbery. The trial court sentenced Appellant to
serve life in prison with the possibility of parole for malice murder; ten years
imprisonment, consecutive to Count 1, for criminal attempt to commit robbery;
ten years on probation, consecutive to Count 6, for possession of a firearm by a
First Offender probationer; and five years on probation, consecutive to Count
8, for possession of a firearm during the commission of a felony. The felony
murder guilty verdicts were vacated by operation of law, and the aggravated
assault count merged. On May 10, 2021, Appellant filed a motion for new trial,
which he amended with new counsel on January 22, 2023. After evidentiary
hearings on January 23, 2023, and May 22, 2023, Appellant filed a
supplemental amended motion for new trial on June 5, 2023, and the trial court
entered an order denying the motion on July 20, 2023. Appellant filed a timely
notice of appeal, and the case was docketed in this Court for the August 2024
term and submitted for a decision on the briefs.
2 Because this case involves the evaluation of the harm caused by the
trial court’s error in admitting other-acts evidence, we set out the evidence in
detail, rather than recounting it in the light most favorable to the jury’s
verdicts. See Moore v. State, 315 Ga. 263, 264 n.2 (882 SE2d 227) (2022).
2
slender man wearing a dark-colored sweatsuit with a hood and a red
hat. The lower half of his face was covered with a medical face mask
with a mouth design on it. Witnesses found him “suspicious” because
he was wearing a full sweatsuit on an unusually warm day, wearing
a medical mask,3 jumping up and down, staring into cars, and pacing
around the parking lot.
Around 7:50 p.m., a man was jogging near the pharmacy when
he heard a “pop.” Immediately after he heard the sound, he saw a
man — matching the description given by witnesses in the parking
lot — running up a hill and passing by him, heading away from the
pharmacy. The jogger went down the hill to the pharmacy parking
lot to see what the noise was. Once he got there, he saw Jack leaning
halfway out of the open car door, bleeding, and struggling to breathe.
After realizing Jack had been shot, the jogger alerted another person
in the parking lot and that person called 911 at 7:53 p.m.
Officers from the Gainesville Police Department responded to
3 The incident occurred prior to the COVID-19 pandemic, so witnesses
found it strange to see someone in a medical face mask.
3
the scene around 8:00 p.m. When they arrived, EMS was already
treating Jack, whom officers believed had been shot at least twice in
the chest area. After EMS transported Jack to the hospital, where
he later died, officers began looking inside Jack’s car, without going
in it. They noticed a spent shell casing and a cell phone on the
floorboard of the driver’s side, handprints on the partially rolled
down driver’s side window, and a holstered gun in the door panel of
the driver’s side.
The lead investigators arrived on the scene shortly after
responding officers. Investigators spoke with witnesses and
dispatched K-9 units around the area. Based on descriptions given
by multiple witnesses, investigators knew they were looking “for a
tall, slender, black male,” who was possibly wearing “dark jeans or
a [black coat,] . . . a red beanie, a mask with a . . . [m]outh on it,” and
black shoes with white bottoms. Footage from cameras inside the
pharmacy showed a man matching this description walking past the
entrance of the store at 7:49 p.m., but the footage did not show his
4
face.4 Witnesses also said that the man ran in the direction of a
restaurant north of the pharmacy. While the man was seen prior to
the shooting, no one saw him interact with or shoot Jack.
After obtaining a search warrant for Jack’s car, investigators
determined that the gun in the driver’s side door panel was a
Remington .380 pistol. Jack’s family told investigators that he kept
this gun in his car. Gail testified that he also kept a gun in the center
console of the car. However, when the vehicle was searched, no
weapon or holster was found in the console. Moreover, investigators
testified that when they arrived on the scene, the center console was
closed. “There [were] blood drops both on the portion of the console
that’s stationary and then the part that opens,” suggesting to
investigators that the center console was closed when Jack was
bleeding in the car. Other evidence recovered from Jack’s car
included a bullet that was lodged in the driver’s seat, and Jack’s
wallet, which included various bank cards, a $500 American Express
gift card, and a money clip containing $601.
4 There were no exterior cameras at the pharmacy.
5
The following day, Friday, February 8, investigators had Jack’s
car processed and searched a second time. Two sets of palm prints
and fingerprints were identified and lifted off the driver’s side
window. The palm prints were on the outside of the window and the
fingerprints were on the inside. Both sets of prints were of a left
hand. Investigators believed whoever grabbed the window “grab[ed]
[it] and then . . . reposition[ed]” their left hand. The prints were
searched in the local Gainesville database, but the search did not
produce any results. The prints were then sent to the Forsyth
County Sheriff’s Office, which has a statewide database for prints.
That search narrowed down a list of candidates for each set of prints.
Appellant was the only person on both lists, as well as the only
person that lived in Georgia on either list. At this point, Appellant
became a person of interest in Jack’s killing. Investigators also
learned that Appellant was on probation for a 2012 robbery
conviction.
That same day, investigators searched for Appellant on
Facebook. Appellant had a public account, so they had unrestricted
6
access to his profile. While reviewing Appellant’s profile,
investigators recognized an apartment building in the background
of two of Appellant’s photos, which were both posted two days before
the shooting. The building was Ridgecrest Apartments in
Gainesville. In driving distance, Ridgecrest is approximately eighttenths of a mile from the pharmacy where Jack was killed.
Investigators wanted to confirm that the prints found on the
window belonged to Appellant. To do so, they requested a faxed copy
of Appellant’s prints from the State Probation Office for comparison.
However, the faxed copies were of insufficient quality, prompting
investigators to obtain Appellant’s original print cards from the
Clayton County Sheriff’s Office. From comparing the print cards
with the prints found on the window, investigators confirmed that
the window prints belonged to Appellant.
Investigators also spoke with Appellant’s probation officer,
who provided them with Appellant’s phone number and informed
them that he had been living in a storage facility in East Point. By
“track[ing]” his cell phone number, investigators determined that
7
Appellant was in Gainesville the night Jack was shot and narrowed
down his current location at that time. After obtaining an arrest
warrant, investigators went to the storage facility and arrested
Appellant early Sunday morning.
Investigators interviewed Appellant in their vehicle while
parked at the storage facility, after Appellant was given warnings
required by Miranda 5 and agreed to speak with them. Throughout
the interview, which was audio-recorded and played for the jury at
trial, Appellant made several inconsistent statements. Initially,
Appellant claimed that he had never been to Gainesville, but then
later said he had been in Gainesville visiting his best friend at
Ridgecrest a week before the shooting. Next, Appellant claimed that
the night of the shooting he went to the pharmacy where Jack was
killed to get a movie, and Jack called him a racial slur, prompting
Appellant to approach Jack’s car. He later recanted this statement
and claimed that Jack never said anything to him, and that because
Appellant needed work boots he was walking around the pharmacy
5 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
8
parking lot to see whom he could ask for money. Appellant told
investigators that Jack was already at the pharmacy when he
arrived, parked to the left of the pharmacy entrance. Appellant first
saw Jack when Appellant was waiting on the “darkest [lit] side” of
the pharmacy parking lot, to the left of the pharmacy entrance and
Jack’s car. Appellant thought he could get money from Jack because
Appellant believed Jack was the “only person out there.” Appellant
also said he was wearing a dark-colored hooded sweatsuit, a medical
mask with a mouth design on it, and a red hat. He claimed he wore
a sweatsuit and medical mask because it was cold outside and he
did not want to get sick.
When asked if he brought a gun to the pharmacy, he initially
responded “hell [no].” However, he later claimed that he brought a
.380 caliber pistol, which was hidden in his pants, that he purchased
from someone in Gainesville. Appellant said he did not shoot Jack
“off top,” meaning he did not shoot Jack as soon as he approached
Jack’s car, but rather said, “Don’t move, give me $25.” At that point,
he said, Jack began reaching toward his center console. In one part
9
of the interview, Appellant said that once Jack started reaching,
Appellant pulled the .380 caliber pistol from his pants and shot Jack
once.6 However, at another point in the interview, Appellant said
Jack had a gun and “tried to shoot [Appellant],” so Appellant
“snatche[d] the gun” out of Jack’s hand because “[Jack] did not have
a good grip” on it, and “hit [Jack] twice, ‘boom, boom,’ in the torso.”
Appellant told investigators that after shooting Jack,
Appellant ran toward Ridgecrest, without taking anything from the
car. After initially saying he burned all the evidence and gave the
gun back to the person he purchased it from, Appellant later
admitted that he put the clothes and shoes he was wearing and the
murder weapon in a storm drain at Ridgecrest. He said the clothes
and shoes would be in separate plastic grocery bags and the gun
would be wrapped in a red T-shirt. Investigators found the evidence
in the manner described by Appellant. The gun found in the storm
6 In response to Appellant saying he shot Jack once, investigators asked
Appellant whether he “thought it was a possibility that he shot [twice].”
Appellant responded that he thought it could have been two shots, but that it
was “quick as hell.”
10
drain, which was determined to be the murder weapon, was an AccuTek .380 pistol.
Throughout the interview, Appellant made several
incriminating statements, such as “just take me to jail” and “give me
a life sentence, at least thirty years.”
Forensic experts testified that the markings on the spent shell
casing found on the floorboard of Jack’s car, which had been fired
from the Accu-Tek, indicated that the same casing had previously
been loaded into the Remington handgun found in the driver’s door
panel. The fact that the casing had been “cross-loaded” between the
two guns suggested to investigators that the Accu-Tek belonged to
Jack. Forensic experts also testified that the Accu-Tek’s trigger
required approximately nine pounds of pressure to pull, and during
test fires, they were able to pull the trigger with ease.
The medical examiner testified that Jack died because of two
gunshot wounds. There was no way to determine which wound
occurred first, but she testified that one wound was “fairly high on
the left side of his chest. It’s . . . roughly two and a half inches away
11
from the midline here in the front, so it would be a little bit below
the collarbone.” The bullet did not exit his body, stopping on the
upper right side of his back. The other shot entered his right arm
and exited the back portion of the arm. Based on the entry of the
bullets, Jack was likely leaning away from the driver’s side window
when he was shot.
2. When properly viewed in the light most favorable to the
verdicts, the evidence presented at trial and summarized above was
sufficient as a matter of constitutional due process to authorize a
rational jury to find Appellant guilty beyond a reasonable doubt of
malice murder.7 See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). See also Anthony v. State, 298 Ga. 827,
829 (785 SE2d 277) (2016) (“The jury is free to reject any evidence
in support of a justification defense and to accept the evidence that
the shooting was not done in self-defense.”); Vega v. State, 285 Ga.
32, 33 (673 SE2d 223) (2009) (“It was for the jury to determine the
7 Appellant does not challenge the constitutional sufficiency of the
evidence supporting his other convictions.
12
credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.” (cleaned up)).
Here, Appellant admitted that he walked up to Jack’s car and
tried to rob him, but when Jack began to reach for a gun in his center
console, Appellant took the gun and shot Jack with it. See Davis v.
State, 306 Ga. 594, 597 (832 SE2d 341) (2019) (concluding evidence
was constitutionally sufficient to support the defendant’s conviction
for malice murder where the evidence showed that a “robbery went
badly,” and he admitted to others that he shot the victim).
Additionally, although the jury was charged on self-defense, it was
authorized to disbelieve Appellant’s claim that he feared for his life,
especially when he was the initial aggressor and demanded money
from Jack by telling him “Don’t move, give me $25.” See Carter v.
State, 310 Ga. 559, 562 (852 SE2d 542) (2020) (holding that evidence
was constitutionally sufficient to authorize a conviction for malice
murder where, even if the victim had shot first, the defendant “was
the initial aggressor in the confrontation . . . , shouting ‘Don’t
move’”). See also Mosby v. State, 300 Ga. 450, 452 (796 SE2d 277)
13
(2017) (“An aggressor is not entitled to a finding of justification.”).
Further, Appellant asserts that the encounter between him
and Jack only lasted a few seconds, so there was not enough time for
Appellant to have formed the intent to kill Jack. However, contrary
to Appellant’s contention, “the malice necessary to establish malice
murder may be formed in an instant, as long as it is present at the
time of the killing.” Scoggins v. State, 317 Ga. 832, 836 (896 SE2d
476) (2023) (cleaned up). Here, there was evidence of malice. As
evidenced by the entry path of the bullets, Jack was leaning away
from the driver’s side window when he was shot, which authorized
the jury to infer that he was trying to get away from Appellant. See
Moran v. State, 302 Ga. 162, 164 (805 SE2d 856) (2017) (concluding
there was evidence of malice where, among other things, the
defendant admitted to shooting the victim as the victim was trying
to escape). The evidence also showed that Appellant gave
investigators an inconsistent version of events when asked about his
involvement in Jack’s killing, fled the scene, and hid evidence. See
Blackshear v. State, 309 Ga. 479, 482-484 (847 SE2d 317) (2020)
14
(concluding that the evidence was constitutionally sufficient to
authorize the defendant’s malice murder conviction where forensic
evidence linked the defendant to the victim and the crime scene and
the defendant gave inconsistent statements to police about his
involvement in the victim’s death); Frazier v. State, 309 Ga. 219,
224-225 (845 SE2d 579) (2020) (evidence was constitutionally
sufficient to establish malice murder where, among other things, the
defendant fled the scene after shooting the victim); Kemp v. State,
303 Ga. 385, 389 (810 SE2d 515) (2018) (concluding the evidence was
constitutionally sufficient to authorize a conviction for malice
murder where, among other things, the defendant and his
accomplices attempted to get rid of evidence of the crime). Therefore,
the evidence was constitutionally sufficient to support Appellant’s
conviction for malice murder.
3. Appellant next contends that the trial court abused its
discretion by admitting his 2012 guilty plea for robbery, which the
State offered for the purpose of showing intent with respect to the
15
charge of criminal attempt to commit robbery.8 Correspondingly,
Appellant asserts that the trial court erred by instructing the jury it
could consider his prior conviction for intent purposes. We conclude
that any error in both respects was harmless.9
Appellant argues that the probative value of admitting his
previous conviction under OCGA § 24-4-404 (b) (“Rule 404 (b)”)10 was
outweighed by its prejudicial effect. However, we apply a harmless
8 OCGA § 16-4-1 provides that “[a] person commits the offense of criminal
attempt when, with intent to commit a specific crime, he performs any act
which constitutes a substantial step toward the commission of that crime.”
Additionally, OCGA § 16-8-40 (a) provides, in relevant part, that
A person commits the offense of robbery when, with intent to commit
theft, he takes property of another from the person or the immediate
presence of another: . . .
(2) By intimidation, by the use of threat or coercion, or by placing
such person in fear of immediate serious bodily injury to himself
or to another; . . .
9 Appellant also contends that the trial court abused its discretion by
refusing to accept his offer to stipulate to the fact of his sentence for the prior offense, which the State did not accept, and instead admitting the full record
of his prior conviction. However, because we conclude below that any error in
admitting the other-acts evidence was harmless, we need not address whether
the trial court abused its discretion by refusing to accept the stipulation.
10 Rule 404 (b) provides that “[e]vidence of other crimes, wrongs, or acts
shall not be admissible to prove the character of a person in order to show
action in conformity therewith.”
16
error review to erroneous evidentiary rulings. See Allen v. State, 310
Ga. 411, 415 (851 SE2d 541) (2020). “For a nonconstitutional ruling
[on the admission of Rule 404 (b) evidence], the test for determining
harmless error is whether it is highly probable that the error did not
contribute to the verdict.” Id. (cleaned up). In determining whether
an error in admitting Rule 404 (b) evidence was harmless, “we
review the record de novo and weigh the evidence as we would expect
reasonable jurors to have done so.” Moore v. State, 307 Ga. 290, 293
(835 SE2d 610) (2019).
At trial, the State presented evidence showing that on October
14, 2011, Christian Martinez was walking home from work around
4:30 p.m. when he heard a clicking noise and turned around and saw
“a couple of guys standing behind [him], and one had a gun[.] They
told [him] to give them everything in [his] pockets.” One of the
robbers was Appellant, who, along with his accomplices, stole
Martinez’s money, phone, shoes, and hat. After being arrested,
Appellant was subsequently indicted for armed robbery. However,
in 2012, he pled guilty to a reduced charge of robbery and was
17
sentenced as a first offender to 15 years, with the first seven to be
served in prison and the remainer to be served on probation. The
trial court, over Appellant’s objection, instructed the jury that it
could consider the prior conviction for the limited purpose of
showing Appellant’s intent to commit a robbery in this case.
Without deciding whether the trial court abused its discretion
in admitting the evidence of Appellant’s prior conviction to establish
intent, or erred in instructing the jury that it could consider the prior
conviction for that purpose, any error in both respects was harmless
given the strong evidence of Appellant’s intent to commit robbery.
Here, the evidence of Appellant’s intent to rob was strong.
Appellant admitted during his interview with investigators that
while waiting in the “darkest [lit] part” of the pharmacy parking lot,
he chose to approach Jack for money because he believed Jack was
the “only person out there.” See Hinton v. State, 304 Ga. 605, 605-606 (820 SE2d 712) (2018) (concluding there was sufficient evidence
to convict the defendant of criminal attempt to commit robbery when
he was “lying in wait to rob someone” and ambushed the victim as
18
the victim arrived home). Further, Appellant admitted that when he
reached Jack’s car, he ordered Jack to give him money, stating,
“Don’t move, give me $25.” Appellant’s words indicate that he
intended to rob Jack, using an implicit threat of force to intimidate
him into complying with the demand. See Boyd v. State, 284 Ga. 46,
47-48 (663 SE2d 218) (2008) (concluding evidence was sufficient to
convict the defendant of criminal attempt to commit robbery where
he threatened to stab the victims and told them “not to move” and
that “this store is fixing to be robbed”). Given this evidence, it is
highly probable that any error in admitting Appellant’s prior
conviction did not contribute to the verdicts. See Allen, 310 Ga. at
415 (concluding that any error in admitting other-acts evidence
under Rule 404 (b) was harmless considering other strong evidence
of the defendant’s guilt).
4. Finally, Appellant contends that the trial court erred by
failing to instruct the jury on accident. See 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
19
criminal scheme or undertaking, intention, or criminal
negligence.”). Appellant asserts that the evidence showed that the
shooting was unplanned and unanticipated, as Appellant did not
approach Jack’s car with a gun, and only shot Jack during a struggle
for Jack’s gun. Moreover, Appellant claims that the shooting did not
occur because of a criminal undertaking or criminal negligence
because Appellant did not steal any valuable items from Jack,
except the Accu-Tek. 11 We disagree.
As an initial matter, “to authorize a jury charge, there must be
slight evidence supporting the charge.” Munn v. State, 313 Ga. 716,
722 (873 SE2d 166) (2022) (cleaned up). However, “when the
evidence shows that a defendant acted with criminal intent, was
engaged in a criminal scheme, or was criminally negligent, then the
affirmative defense of accident is unavailable and a jury charge on
accident is not warranted.” Wainwright v. State, 305 Ga. 63, 71 (823
SE2d 749) (2019). Here, as noted above, the evidence showed that
11 On appeal, Appellant concedes that he shot Jack using Jack’s gun and
stole the weapon. However, the jury found Appellant not guilty of robbery
related to Jack’s gun and felony murder predicated on that robbery count.
20
Appellant approached Jack, a 73-year-old man who was alone in a
dark area of the parking lot, demanded money, wrested his gun
away, and shot him when he did not comply. Because this evidence
showed Appellant’s criminal intent to rob and shoot Jack, the
defense of accident was unavailable. Therefore, the trial court
properly denied his request for a jury instruction on accident. See
Wainwright, 305 Ga. at 71 (“Because the evidence presented at trial
shows that [the defendant] intended to commit, and indeed was in
the midst of committing, armed robbery and aggravated assault
with a firearm when this alleged accidental discharge occurred, the
trial court properly denied [the defendant’s] request for a jury
charge on accident.” (cleaned up)).12
12 We have assumed two trial court errors in Division 3 (admission of
Appellant’s prior conviction and the jury instruction on that evidence).
Notwithstanding this, Appellant fails to make any argument as to how he was
prejudiced by the cumulative effect of the alleged errors by the trial court. See
State v. Lane, 308 Ga. 10, 18 (838 SE2d 808) (2020) (“A defendant who wishes
to take advantage of the [cumulative error rule] should explain to the
reviewing court just how he was prejudiced by the cumulative effect of multiple
errors.” (cleaned up)). Nevertheless, even assuming that we must sua sponte
apply cumulative-error analysis under Lane, any such claim by Appellant fails
considering the overwhelming evidence of his guilt. See Lofton v. State, 309
Ga. 349, 367 (846 SE2d 57) (2020) (concluding that the “cumulative prejudicial
21
Judgment affirmed. All the Justices concur.
effect of the actual and assumed evidentiary errors and counsel’s deficiencies
is not sufficient to outweigh the strength of the properly admitted evidence of
[the defendant’s] guilt” (cleaned up)).
22