Jivens v. State ( 2023 )

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 19, 2023
S23A1078. JIVENS v. THE STATE.
PETERSON, Presiding Justice.
Laquan Hasuan Jivens appeals his convictions for malice
murder and possession of a firearm during the commission of a
felony in connection with the May 7, 2016 shooting death of Kathy
Henry. 1 On appeal, Jivens asserts that the trial court erred by (1)
1 The crimes related to Henry’s death occurred in May 2016. In March
2017, a Chatham County grand jury indicted Jivens for various crimes related
to the armed robbery of Bernie Edwards and for six counts relating to the
murder of Henry: malice murder (Count 1), felony murder predicated on
aggravated assault (Count 2), aggravated assault (Count 3), and three counts
of possession of a firearm during the commission of a felony (Counts 4 to 6). At
an April 2019 trial, the jury found Jivens guilty of all counts related to Henry
(Counts 1 to 6) and acquitted Jivens of all counts related to Edwards. The
felony murder count (Count 2) was vacated by operation of law, and the trial
court sentenced Jivens to life in prison for malice murder (Count 1), 20 years
to serve concurrent for aggravated assault (Count 3), and three consecutive
terms of five years for possession of a firearm during the commission of a felony
(Counts 4 to 6). Jivens timely moved for a new trial with new counsel,
amending the motion once. On May 12, 2023, after a hearing, the trial court
denied Jivens’s motion for new trial but merged Count 3 with Count 1 and
merged Counts 5 and 6 with Count 4. The trial court entered an amended
sentencing order reflecting a sentence of life in prison with the possibility of
failing to instruct the jury on the lesser offense of voluntary
manslaughter, (2) admitting photographs of model firearms and of
Jivens with firearms, (3) denying his motion for mistrial after the
State elicited testimony of his potential gang affiliation, (4) granting
the State’s motion in limine excluding evidence of Henry’s drug use,
and (5) denying his motion for mistrial based on the State’s allegedly
improper closing arguments. We affirm because (1) the trial court
did not err in failing to give a voluntary manslaughter charge
because the evidence did not support such a charge, (2) it is highly
probable that any error in admitting the firearm-related
photographs did not contribute to the verdict, (3) Jivens did not
preserve for appellate review the issue related to evidence of gang
affiliation, (4) the trial court did not abuse its discretion in excluding
evidence of Henry’s drug use, and (5) Jivens waived any objection to
the State’s alleged improper arguments.
parole for malice murder with one term of five years to serve consecutively for
possession of a firearm during the commission of a felony. Jivens filed a timely
notice of appeal. The case was docketed to the August 2023 term of this Court
and submitted for consideration on the briefs.
2
At trial, the jury heard evidence from (1) Henry’s fiancé who
was on the phone with Henry before the shooting, (2) a neighbor who
witnessed the shooting, (3) another neighbor who saw and overheard
Jivens shortly after the shooting, and (4) an audio recording of
Jivens’s girlfriend, Tyresha Humphries, detailing the shooting.
First, Henry’s fiancé testified that, on the night of the shooting,
Henry called him. He overheard young people arguing and heard
Henry say a young male was “beating up on his girlfriend[.]”Henry’s
phone records showed that she called her fiancé immediately before
the shooting.
Similarly, one neighbor testified that he saw Jivens and
Humphries arguing outside when Henry came “out of nowhere” and
pushed Jivens. Henry did not say anything during the encounter,
but Jivens asked Henry, “You think I’m f**king playing?” This
neighbor saw Jivens attempt to fire a gun twice before shooting
Henry in the chest the third time he fired. The neighbor described
the gun as a chrome, semi-automatic gun with a brown handle,
identified Jivens as the shooter in court, identified a picture of
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Humphries as the female he saw argue with Jivens, and identified
a picture of Jivens’s house as the place where the pair went after the
shooting.
Another neighbor testified that she saw Jivens and Humphries
shortly after the shooting, and she overheard Jivens say he “done
told her about getting in their business” while putting something in
his pants. This neighbor failed to identify Jivens in the first police
photographic lineup but identified a more recent picture of Jivens in
the second police photographic lineup as the male she saw, and she
identified Humphries as the female she saw with Jivens on the night
of the shooting.
Although Humphries claimed at trial that she and Jivens
stayed in on the night of the shooting, the jury heard a recorded
interview where Humphries narrated a different series of events
leading up to the shooting. In this account, Jivens and Humphries
were arguing when Henry approached them; Henry, Jivens, and
Humphries exchanged words, and Henry pushed them. Henry
repeatedly asked them “[w]hat’s up with you[,]” accused Humphries
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of taking her money, and “called [Humphries] a B or P-*-*-S-Y” while
Jivens insisted, “I’m talking to my girl” and told Henry to “go head
on.” Jivens pulled a gun from his pants. Humphries first described
the gun as black and later described it as black and silver. Henry
dared Jivens to kill her, saying, “come on, kill me,” while Jivens
continued to tell Henry to “get out [of his] face.” Humphries
described how Jivens unsuccessfully attempted to fire the gun, she
tried to stop him, and she began to walk away when she heard a
gunshot. After Jivens shot Henry, Henry stood holding her arm as
Jivens and Humphries walked away.
Additionally, a police officer testified that he discovered
Henry’s body at the crime scene with a blood spot on her left arm.
Police also observed a “fairly fresh” shoe tread pattern around 12
inches long and a .40-caliber shell casing. The State presented
evidence recovered while executing a search warrant of Jivens’s
house: clothing that matched depictions of what Jivens wore on the
night of the shooting, a hat with a “fair amount” of gunshot residue,
and shoes, which measured over 11 inches long, with treads similar
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to those found at the crime scene. Further, an internet search
history from Jivens’s cell phone records revealed that someone using
that phone searched for and clicked on an article related to Henry’s
death in the early morning of May 9.
1. Jivens argues on appeal that the trial court erred by
declining to give a voluntary manslaughter instruction. We conclude
that the trial court did not plainly err in declining this charge.
Jivens requested a jury charge on voluntary manslaughter. At
the charge conference, the trial court rejected Jivens’s request and
reasoned that pushing did not rise to the level of provocation
necessary to warrant such a charge. After the trial court gave
instructions to the jury, Jivens did not object to the court’s omission
of the voluntary manslaughter charge.
An objection voiced at the charge conference does not preserve
for ordinary appellate review a party’s objection to the charge as
subsequently given. See Behl v. State, 315 Ga. 814, 815 (1) (885 SE2d
7) (2023) (citing White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109)
(2012)). Rather, to preserve an objection to a jury charge for ordinary
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appellate review, the defendant must restate his objection after the
court gives its instructions and before the jury retires to deliberate.
See Blake v. State, 292 Ga. 516, 518 (3) (739 SE2d 319) (2013). A
party’s failure to object to the instruction as given, or to the omission
of an instruction, precludes appellate review of the instruction
“‘unless such portion of the jury charge constitutes plain error which
affects substantial rights of the parties.’” White, 291 Ga. at 8 (2)
(quoting OCGA § 17-8-58 (b)). Given Jivens’s failure to object after
the instruction was given, we review the trial court’s omission of the
voluntary manslaughter instruction only for plain error.
“Under plain error review, we can reverse only if the trial court
made a clear or obvious error that was not affirmatively waived,
likely affected the outcome of the proceedings, and seriously affects
the fairness, integrity, or public reputation of judicial proceedings.”
Behl, 315 Ga. at 815-816 (1). Jivens’s claim fails because there was
no clear or obvious error in the trial court’s refusal to give a
voluntary manslaughter charge.
Voluntary manslaughter is committed when a person causes
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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).
Under this objective standard, “[t]he reasonable person remains our
barometer” in this analysis, and we “put[] aside any peculiar
response [the defendant] may have had.” Bailey v. State, 301 Ga.
476, 480 (IV) (801 SE2d 813) (2017).
“Even slight evidence showing that the victim seriously
provoked the defendant requires the trial courts to give a requested
charge on voluntary manslaughter.” Dugger v. State, 297 Ga. 120,
124 (7) (772 SE2d 695) (2015) (citations and punctuation omitted).
But there is a difference between slight evidence of serious
provocation and evidence — even strong evidence — of lesser
provocation. A voluntary manslaughter charge is required only
when there is at least slight evidence that “the defendant acted
solely as the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such passion
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in a reasonable person.” Bailey, 301 Ga. at 480 (IV) (emphasis
supplied; citation and punctuation omitted). Although Jivens
contends that Henry’s pushing and shoving him provoked him into
the shooting, Jivens makes no argument that this is the type of
serious provocation that would excite the passions of a reasonable
person.
Instead, Jivens argues the evidence required a voluntary
manslaughter charge because Henry was a “large[r]” woman2 who
appeared to be under the influence and stumbling when she pushed
Jivens and Humphries, accused Humphries of stealing money, and
dared Jivens to kill her.
But neither mere words, nor fear for one’s safety, nor fighting
are the types of provocation that demand a voluntary manslaughter
charge. See Behl, 315 Ga. at 816 (1); see also Johnson v. State, 313
Ga. 698, 700 (873 SE2d 123) (2022) (evidence of heated argument
between defendant and victim, who approached the house of
2 The autopsy revealed Henry was five feet, six inches tall, and weighed
184.8 pounds.
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defendant’s mother uninvited and did not leave when requested, did
not warrant a voluntary manslaughter charge); Hudson v. State, 308
Ga. 443, 446 (2) (a) (841 SE2d 696) (2020) (“[The victim’s] use of a
crude phrase, no matter how offensive to [the defendant], was still
only words; [the defendant’s] violent reaction to those words does not
change the fact that they were only words.”); Bailey¸ 301 Ga. at 481(IV) (evidence of a verbal confrontation was not a serious
provocation giving rise to a sudden, violent, and irresistible passion
in reasonable person); Johnson v. State, 297 Ga. 839, 843 (2) (778
SE2d 769) (2015) (evidence of antagonistic relationship involving
physical confrontations between victim and defendant did not
require a voluntary manslaughter charge).
On this record, it was neither clear nor obvious that a
voluntary manslaughter charge was required. Therefore, the trial
court did not plainly err in failing to give one.
2. Jivens argues on appeal that the trial court erred in
admitting demonstrative photographs of two model firearms that
could have been used in the shooting and photographs of him with
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firearms. Without deciding whether the trial court erred, we
conclude that any error was harmless.
Over Jivens’s objections, the trial court showed two
demonstrative photographs of model firearms and admitted
photographs depicting him (1) with a gun in his lap, (2) leaning while
holding two guns, (3) pointing an imaginary gun at the camera with
a gun in his lap, (4) hand gesturing with a gun in his lap, (5) pointing
a gun, (6) holding up five fingers with a gun in his lap, and (7)
standing with two guns. Detectives mentioned these photographs in
the recorded interview with Humphries, in trial testimony about the
similarity between the model guns and guns in photographs of
Jivens, and in trial testimony noting similarities between clothes in
the photographs and what Humphries said Jivens was wearing on
the night of the shooting. Jivens and Humphries also discussed
photographs of him holding two guns in jail calls played for the jury.
And the State referenced these photographs in questioning
Humphries at trial and in closing argument.
On appeal, Jivens contends the trial court erred in admitting
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these photographs because they were (1) irrelevant and thus
inadmissible because they had no connection to the case, and (2)
improper character evidence establishing Jivens’s propensity for
violence as he was a minor carrying a firearm,3 and because (3) any
probative value of the evidence was substantially outweighed by the
risk of unfair prejudice under OCGA § 24-4-403.
A trial court’s evidentiary error warrants reversal only if it was
harmful. See Thomas v. State, 314 Ga. 681, 686 (1) (c) (878 SE2d
493) (2022). “The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did not
contribute to the verdict.” Anglin v. State, 302 Ga. 333, 341 (6) (806
SE2d 573) (2017) (citation and punctuation omitted). In conducting
that analysis, we review the record de novo and weigh the evidence
as we would expect reasonable jurors to have done instead of viewing
it in the light most favorable to the jury’s verdict. See Morrell v.
State, 313 Ga. 247, 261 (2) (c) (869 SE2d 447) (2022).
Here, the State presented strong evidence of Jivens’s guilt. The
3 At the time of the shooting, Jivens was 16 years old.
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jury heard testimony from three witnesses and a recorded interview
which established a similar narrative. Henry’s fiancé testified that
on the night of the shooting he heard a young couple arguing in the
background of the phone call and Henry say a young male was
“beating up on his girlfriend.” Henry’s phone records show that she
called her fiancé minutes before the shooting. One neighbor
corroborated this, testifying that he saw a young couple argue,
Henry “come out of nowhere[,]” Henry push Jivens, and Jivens shoot
Henry. This neighbor identified Jivens in court and described the
gun, how Jivens attempted to fire twice before shooting Henry in the
chest the third time he fired, and how Jivens and Humphries walked
towards Jivens’s house after the shooting. Another neighbor
identified Jivens and Humphries and testified that she saw them
shortly after the shooting. This neighbor heard Jivens say he “done
told her about getting in their business” as he put something in his
pants. Moreover, the jury heard Humphries’s entire recorded
interview in which she detailed how Jivens unsuccessfully fired the
gun, she tried to get him to stop, and she was walking away when
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she heard the gunshot.
Also, the State presented evidence corroborating these
eyewitness accounts. The State presented an audio recording where,
although Jivens disclaimed having anything to do with the murder,
Jivens confirmed that he and Humphries were arguing at the time.
Further, the autopsy revealing the cause of death as a gunshot
wound to the chest with a reentry to the arm and testimony from a
police officer who observed a blood spot on Henry’s left arm at the
crime scene both corroborated Humphries’s account that she saw
Henry holding her arm after the shooting. The State also presented
evidence recovered during a search of Jivens’s house: clothes
matching depictions of what witnesses saw Jivens wear the night of
the shooting, a hat with a “fair amount” of gunshot residue, and
shoes that measured over 11 inches and had similar treads to those
pictured at the crime scene. Further, the internet search history
from Jivens’s cell phone records supported an inference that he
searched for and read an article related to Henry’s death in the early
morning of May 9.
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Moreover, any prejudicial effect these photographs may have
had was minimized by properly admitted evidence that Jivens, in
fact, had access to guns. See Young v. State, 309 Ga. 529, 537, 538
(3) (847 SE2d 347) (2020). To that end, the jury heard about Jivens
having guns in the recorded interview with Humphries, jail calls
between Jivens and Humphries, and Humphries’s trial testimony.
Given the compelling evidence of Jivens’s guilt and the limited
prejudicial effect from the photographs, it is highly probable that
any error in admitting these photographs did not contribute to the
verdict. See Young, 309 Ga. at 538 (3) (any error in admitting
photograph depicting defendant with a gun was harmless under
circumstances of case, given the strength of the evidence); Lofton v.
State, 309 Ga. 349, 357-358 (3) (b) (846 SE2d 57) (2020) (any error
in trial court’s admission of photographs depicting defendant with
guns was harmless given various factors including the strong
evidence of defendant’s guilt as a party to the crime); Robinson v.
State, 308 Ga. 543, 551-552 (2) (b) (ii) (842 SE2d 54) (2020)
(admission of video without “the remotest shred of relevance” was
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harmless in light of the compelling evidence of the defendant’s guilt
and the minor role the video played in the State’s case).
3. Jivens contends the trial court erred in denying his motion
for mistrial after the State elicited evidence of Jivens’s potential
gang affiliation. Jivens failed to preserve this issue for appellate
review.
The State elicited the contested evidence during the State’s
direct examination of a detective.
Q: … Now, based on this, are you aware of the tattoos that
the Defendant had, what significance they have in
relation to him using the name as Muddy?
A: Yes.
Q: Okay. What in — what — why does that matter?
A: So the neighborhood where he lives in Edgemere
Sackville, there’s a group that exist[s] there. They call
themselves Five Five Mob or Muddy Mob. And so he
refers to himself as Muddy Quan, and that’s the
significance of the Five Five tattoos. It[’]s a designation
identifying the group that he considers — considers
himself to be a part of.
Jivens moved for a mistrial, contending that the State injected
bad character evidence about Jivens’s potential gang association,
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which the trial court had already excluded in another evidentiary
dispute during trial. The State maintained that this information
linked Jivens to the use of the name “Muddy,” which connected
Jivens to an extraction of his cell phone records and also was
relevant to identify Jivens in a Facebook photograph in which Jivens
had a gun in his lap, similar to the gun described by a witness as
being used in the murder relatively close in time to the date of the
shooting.
The trial court agreed that information about the referenced
neighborhood’s association “with certain groups that this Defendant
may be associated with” was “completely non[-]necessary” to connect
Jivens with the phone extraction. The trial court warned the State,
outside the jury’s presence, to “stay away from that” information.
However, the trial court denied the motion for mistrial and, instead,
gave a curative instruction.
Jivens failed to renew the motion for mistrial following the trial
court’s curative instruction, and thus, he has waived the issue on
appeal. See Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d 90)
17
(2014) (defendant failed to preserve issue for appellate review by
failing to renew motion for mistrial after court administered its
curative instruction). Accordingly, this enumeration leaves nothing
for us to review.
4. Jivens argues the trial court abused its discretion by
granting the State’s motion in limine to exclude evidence that Henry
had cocaine in her system at the time of the shooting. Jivens
contends this evidence would have been relevant both (1) to help
show the provocation required for a voluntary manslaughter charge
and (2) to corroborate Humphries’s testimony. We conclude that the
trial court did not abuse its discretion in excluding this evidence.
As an initial matter, we have consistently held under the
current Evidence Code that a victim’s toxicology report is irrelevant
and inadmissible when the defendant fails to show how any alcohol
or drugs in the victim’s system tended to affect the victim’s behavior.
See Ivey v. State, 305 Ga. 156, 162-163 (2) (d) (824 SE2d 242) (2019);
Mondragon v. State, 304 Ga. 843, 845-846 (3) (823 SE2d 276) (2019);
Gill v. State, 296 Ga. 351, 352 (2) (765 SE2d 925) (2014). Even
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assuming Jivens made this connection, we conclude that evidence of
Henry’s drug use would have made no difference with respect to
either purpose Jivens asserts. If evidence of a victim’s antagonistic
behavior does not support a voluntary manslaughter charge,
evidence about why the victim was antagonistic does not change the
result. See Benton v. State, 305 Ga. 242, 245-246 (2) (824 SE2d 322)
(2019). Regardless of whether Henry’s behavior — her pushing and
aggression — were motivated by drugs, this evidence still would not
have required a voluntary manslaughter charge. As we explained
above, Henry’s behavior was insufficient provocation to support a
voluntary manslaughter charge. Evidence that the insufficient
provocation was caused by drug use would not have rendered that
provocation the sort that would warrant a voluntary manslaughter
instruction.
Jivens also contends this evidence corroborated Humphries’s
testimony because she was pregnant with Jivens’s child at the time
of the homicide and thus, perceived as biased in his favor.
Specifically, Jivens references Humphries’s recorded statement that
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Henry appeared to be intoxicated and stumbling, pushed both
Jivens and Humphries, and accused Humphries of theft. But even if
evidence of Henry’s drug use corroborated Humphries’s depiction of
Henry as under the influence, that still would not have required a
voluntary manslaughter charge. Jivens offers no other reason why
the evidence should have been admitted. Therefore, the trial court
did not abuse its discretion in excluding evidence of Henry’s drug
use.
5. Jivens argues the trial court erred in denying his motion for
mistrial based on the State’s allegedly improper arguments during
closing. Specifically, Jivens contends that the prosecutor improperly
accused defense counsel of trying to hide evidence from the jury by
objecting to its admissibility, improperly remarked on her
experience as a special victim’s prosecutor, which was not in
evidence, and improperly asserted her personal opinion about
Humphries’s credibility. But Jivens did not timely move for a
mistrial and so failed to preserve this issue for appellate review.
It is well settled that “[i]n the absence of a contemporaneous
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objection, a mistrial motion is untimely and will not be considered
on appeal.” Tennyson v. State, 282 Ga. 92, 94 (4) (646 SE2d 219)
(2007) (citations and punctuation omitted). See Cowart v. State, 294
Ga. 333, 336-337 (3) (751 SE2d 399) (2013) (defendant failed to
preserve issue for appeal by objecting and moving for mistrial
“[a]fter the prosecutor completed her argument . . . [and] the jury
left the courtroom”); Bedford v. State, 311 Ga. 329, 333 (2) (857 SE2d
708) (2021) (“Because [the defendants] moved for a mistrial after,
not contemporaneously with, the State’s improper closing argument,
the motion was untimely and the issue was not preserved for
appellate review.”), disapproved in part on other grounds by Clark
v. State, 315 Ga. 423, 435 (3) (b) n.16 (883 SE2d 317) (2023).
Jivens moved for a mistrial only after the State concluded its
closing argument and the jury withdrew from the courtroom,
because Jivens’s counsel “didn’t want to interrupt counsel when she
was in the middle of her closing argument.” The trial court denied
Jivens’s motion but confirmed the court would remind the jury of the
roles of counsel, court, and the jury. Jivens’s mistrial motion, made
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after the State’s arguments concluded and the jury left the
courtroom, was untimely and leaves us nothing to review on this
issue.
Judgment affirmed. All the Justices concur.
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