Thompson v. State ( 2021 )

In the Supreme Court of Georgia
Decided: August 10, 2021
S21A0854. THOMPSON v. THE STATE.
LAGRUA, Justice.
Appellant Darcy Thompson was convicted of felony murder in
connection with the shooting death of Tyrone Cochran. On appeal,
Appellant’s sole enumeration of error is that the trial court erred by
denying his request to instruct the jury on the lesser offense of
voluntary manslaughter. 1 For the following reasons, we affirm
Appellant’s conviction.
1 The shooting occurred on March 15, 2017. In May 2017, an Emanuel
County grand jury indicted Appellant for malice murder and felony murder.
In October 2018, a jury found Appellant guilty of felony murder, and a mistrial
was declared on the malice murder count. The malice murder count was later
dismissed by the trial court upon a motion of the State. On April 17, 2019, the
trial court sentenced Appellant to serve life in prison without parole.
Appellant filed an untimely motion for new trial through trial counsel on May
20, 2019, which the trial court dismissed sua sponte as untimely on July 15,
2019. Appellant filed an amended motion for new trial through new counsel
on October 22, 2019. On November 19, 2019, Appellant filed a motion for an
out-of-time appeal, which was granted by the trial court on November 20, 2019.
On October 28 and November 6, 2020, Appellant filed additional amended
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1. The evidence presented at trial showed that in March 2017,
Hikeara Clark had romantic feelings for two men – the victim,
Tyrone Cochran, and Appellant. Clark met Cochran in September
2015, and after the two started dating, Clark and her four children
moved into his house in Swainsboro. About nine months later, Clark
and Cochran broke up, and Cochran moved out. In May 2016, Clark
started dating Appellant, and she and her children moved into a
house with him, also in Swainsboro. Clark soon became pregnant
with Appellant’s first child, a girl, who was born in early March
2017.
According to Clark, when she and Appellant started dating,
Cochran became jealous and wanted her back. Clark testified that
several verbal encounters occurred between the two men, and
during these “run-ins,” Cochran would sometimes threaten
motions for new trial. On February 2, 2021, the trial court denied Appellant’s
motion for new trial. Appellant filed a timely notice of appeal on February 9,
2021, and the case was docketed to this Court’s term beginning in April 2021
and submitted for a decision on the briefs.
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Appellant. 2 However, no physical fights ever occurred. Appellant
likewise testified that Cochran consistently provoked and harassed
him over the ten-month period he was dating Clark, but Appellant
always ran away from Cochran or simply “went the other way.”
Family members and friends also observed the tension between
Cochran and Appellant because they both wanted to be with Clark.
According to Clark, on the morning of March 13, 2017, she and
Appellant got into an argument, and Clark left their house with her
children, including her newborn daughter, and went to Cochran’s
house. Later that morning, Appellant’s sister went to Cochran’s
house and told Clark to go home because Appellant was planning to
come to Cochran’s house, presumably to bring Clark and her
children back home. 3 Cochran then rented a hotel room for Clark
because he had to go to work and did not want to leave her alone at
his house. Clark went to the hotel, but shortly after arriving, she
2 The evidence presented at trial demonstrated that Cochran was several
inches taller and much larger in stature than Appellant.
3 Clark testified that she knew Appellant did not want his daughter
around Cochran.
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called Appellant and asked him to come pick her up. Clark testified
that she “just didn’t feel right” and wanted to go home with
Appellant. Appellant and Clark returned to Appellant’s home.
The following day, March 14, Clark borrowed Appellant’s
phone while he was asleep and sent a text message to Cochran,
which she immediately deleted from Appellant’s phone. The text
stated that she was still in love with Cochran, that her “heart [was]
with” him, and that she wanted to come back home to him. However,
Clark remained with Appellant that night.
Around 2:30 p.m. on March 15, Appellant left Clark at his
house and drove to a nearby convenience store, KT’s, to meet with
Stacia Burke, a woman he knew from the neighborhood, about
selling his cell phone to her. Burke and her cousin, Haley Henry,
drove to KT’s together to meet Appellant. After arriving, Henry
entered the store, and Burke got into Appellant’s silver Highlander
SUV to examine his cell phone. While Burke was in Appellant’s
SUV, she saw a red car drive around the store a couple of times and
then slow down by Appellant’s SUV. Appellant’s mood changed as
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soon as he saw the red car. Having decided not to buy the cell phone,
Burke got out of Appellant’s SUV and got back into Henry’s car,
which was parked next to Appellant.
Around the same time, Henry was exiting KT’s, and a red car
“zoomed around” her, circled a couple of times around KT’s, and
slowed down by Appellant’s SUV. Henry then saw the red car follow
Appellant’s SUV out of KT’s parking lot. Henry got back into her
car, and after a couple minutes, Henry and Burke heard what
sounded like fireworks. Henry and Burke left KT’s and observed the
red car stopped in the road.
That same afternoon, Kathleen Ricks went to KT’s on her way
to work to pick up some food. She had just returned to her car when
she heard gunshots. She ducked, and when she looked up again, she
saw a red car stopped in the middle of the road.
Milton Ricks, Kathleen’s nephew, was also in the parking lot of
KT’s around this time and heard gunshots. He noticed two vehicles
parked closely together in the roadway – one in front of the other.
The first vehicle, the make and model of which Milton could not
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recall, was parked directly in front of a red Charger. Milton testified
that after the shooting stopped, the first vehicle sped off, almost
running off the road. Milton called 911, but was too shocked to speak
coherently, so Kathleen took his phone and reported the shooting.
Milton then walked over to the red car and looked inside the vehicle.
The driver was still alive, shaking and trying to talk, but no sound
was coming out of his mouth.
The police arrived and found a red Charger stopped in the
roadway with numerous bullet holes in the front driver’s side from
the fender to the windshield. They observed Cochran in the driver’s
seat, with blood covering his chest, and noted what appeared to be
bullet wounds in his shoulder, arm, and chest. Emergency
personnel arrived and transported Cochran to the hospital, where
he later died from his injuries. The police collected numerous shell
casings from a .40-caliber handgun 4 around and inside Cochran’s
4 At trial, Clark testified that she had seen Appellant with a .40-caliber
handgun prior to this incident, and Appellant also testified that he had a gun
in his possession on the day of the shooting. Appellant stated that right after
the shooting, he hid the gun in the woods near the house where he lived with
Clark. Law enforcement officers later searched that area, but no weapon was
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vehicle. Officers also obtained copies of video recordings from
surveillance cameras from two nearby businesses. The recordings
showed a red Charger and a silver Highlander driving to KT’s before
2:30 p.m. on March 15, and the same two cars leaving the area a few
minutes later – with the red car following closely behind the silver
SUV.
Within minutes of the shooting, Appellant returned home and
told Clark that he had shot Cochran. When Clark asked why,
Appellant said he “got tired of [Cochran] messing with him.”
Appellant changed clothes and left the house on foot.
At about 3:00 or 4:00 p.m. the same afternoon, an acquaintance
of Appellant’s, Cordell Sutton, was driving from Swainsboro to his
job on Jekyll Island. On the way out of town, Sutton saw Appellant
walking down the road. Appellant stopped Sutton and asked for a
ride to Statesboro. Sutton agreed and dropped Appellant off at his
cousin’s house in Statesboro that evening. The next day, March 16,
ever recovered.
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after receiving a tip about Appellant’s whereabouts, the police
located him at an apartment in Statesboro and arrested him without
incident.
At trial, Appellant admitted shooting Cochran. Appellant
testified that Cochran periodically followed Appellant and Clark
when they were driving somewhere together, but on these previous
occasions, Appellant would typically ignore Cochran and keep going.
However, on the afternoon of March 15, Appellant testified that he
was “in fear.” Appellant stated that he did not see Cochran until
Cochran’s red Charger sped up behind Appellant’s SUV as he was
leaving KT’s, and he could see Cochran in his rearview mirror
“pointing something black at [him].” Appellant said Cochran was
waving a black object and swerving behind him, telling him
repeatedly to “stop the car.” Appellant testified that he had
previously been the victim of a shooting, sustaining gunshot wounds
to his stomach and ribs that required surgery. Appellant said the
prior shooting arose from a similar situation where someone was
following him. Appellant said, “I knew if [Cochran] could have got
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his hands on me I woulda really been hurt.” And, having previously
been in a situation where he was followed and shot, Appellant said
he had every reason to think it could happen to him again.
Appellant testified that because he had a weapon on him, he got out
of the car and shot behind him, believing he saw a gun. He “wasn’t
going to take no chance.” But, Appellant claimed he did not “aim on
the shots [he] fired” – he just fired because he was “scared for [his]
life.” Appellant said he had never fired a weapon before that day
and that he was not out looking for Cochran.
2. Appellant contends that the trial court erred by denying his
request for a jury charge on voluntary manslaughter. We see no
merit to this contention because the evidence did not support this
charge.
At trial, Appellant submitted a written request to charge the
jury on voluntary manslaughter. At the close of the evidence, the
trial court informed the parties that it would not give the voluntary
manslaughter charge because the evidence arguably supported a
finding that Appellant shot Cochran in self-defense, not as the result
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of sudden passion, and the court would not give a charge that was
unsupported by the evidence. Appellant objected, “preserving the
issue for ordinary appellate review.” Beck v. State, 310 Ga. 491, 496
(2) (852 SE2d 535) (2020).
If there is any evidence, however slight, to support a
properly requested charge of voluntary manslaughter,
then the trial court must give it. But a charge on
voluntary manslaughter is warranted only where it can
be shown that the accused was so influenced and excited
that he reacted passionately rather than simply in an
attempt to defend himself. A charge on voluntary
manslaughter is not available to a defendant whose own
statement unequivocally shows that he was not angered
or impassioned when a killing occurred, and when the
other evidence does not show otherwise.
Id. at 496-497 (citations and punctuation omitted).
Appellant argues that his testimony about being the prior
victim of a shooting and believing that Cochran would shoot him on
March 15, 2017, was “sufficient provocation to excite the passion for
voluntary manslaughter,” and the trial court erred in failing to give
the corresponding charge.
“This Court has repeatedly held that neither fear that
someone is going to pull a gun nor fighting prior to a homicide are
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types of provocation demanding a voluntary manslaughter charge.”
Funes v. State, 289 Ga. 793, 795 (2) (716 SE2d 183) (2011).
Moreover, Appellant testified that he fired on Cochran because he
was “scared for [his] life,” and “acting out of fear is not the same as
acting in the heat of a sudden irresistible passion.” Id. “[A]nd only
evidence of the latter supports a voluntary manslaughter
conviction.” Burke v. State, 302 Ga. 786, 791 (2) (809 SE2d 765)
(2018).
For these reasons, we conclude that there was “no error in the
trial court’s failure to instruct the jury that it might consider
voluntary manslaughter as an alternative to felony murder.” Id. at
791.
Judgment affirmed. All the Justices concur, except Colvin, J.,
not participating.
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