Jivens v. State

FINAL COPY

                  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
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 a decision on the briefs.
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.

     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

                                      2
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

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.

                                   3
     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

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

                                  4
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

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

                                 5
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, 

 (1) (

) (2023) (citing White v. State, 

 (2) (

)

(2012)). Rather, to preserve an objection to a jury charge for ordinary

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, 

 (3) (

) (2013). A

                                   6
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, 

 (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, 

 (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

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

                                   7
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, 

 (IV) (

) (2017).

     “Even slight evidence showing that the victim seriously

provoked the defendant requires the trial court to give a requested

charge on voluntary manslaughter.” Dugger v. State, 

 (7) (

) (2015) (citation 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

in a reasonable person.” Bailey, 

 (IV) (citation and

punctuation omitted; emphasis supplied). Although Jivens contends

that Henry’s pushing and shoving him provoked him into the

                                 8
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, 

 (1); see also Johnson v. State, 

 (

) (2022) (evidence of heated argument

between defendant and victim, who approached the house of

defendant’s mother uninvited and did not leave when requested, did

not warrant a voluntary manslaughter charge); Hudson v. State, 

 (2) (a) (

) (2020) (“[The victim’s] use of a

crude phrase, no matter how offensive to [the defendant], was still



     2 The autopsy revealed Henry was five feet, six inches tall, and weighed

184.8 pounds.
                                     9
only words; [the defendant’s] violent reaction to those words does not

change the fact that they were only words.”); Bailey, 

(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, 

 (2) (

) (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

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

                                   10
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

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



                                  11
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, 

 (1) (c) (

) (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, 

 (6) (

) (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, 

 (2) (c) (

) (2022).

     Here, the State presented strong evidence of Jivens’s guilt. The

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


     3 At the time of the shooting, Jivens was 16 years old.

                                     12
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

toward 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

she heard the gunshot.

     Also, the State presented evidence corroborating these

eyewitness accounts. The State presented an audio recording where,

                                13
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.

     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, 

, 537-538

                                 14
(3) (

) (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, 

 (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, 

, 357-358 (3) (b) (

) (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, 

 (2) (b) (ii) (

) (2020)

(admission of video without “the remotest shred of relevance” was

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

                                 15
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’s 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,

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


                                 16
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, 

 (2) (

)

(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.

                                  17
     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, 

 (2) (d) (

) (2019);

Mondragon v. State, 

 (3) (

) (2019);

Gill v. State, 

 (2) (

) (2014). Even

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,

                                  18
evidence about why the victim was antagonistic does not change the

result. See Benton v. State, 

 (2) (

)

(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

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

                                19
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

objection, a mistrial motion is untimely and will not be considered

on appeal.” Tennyson v. State, 

 (4) (

)

(2007) (citation and punctuation omitted). See Cowart v. State, 

 (3) (

) (2013) (defendant failed to

                                   20
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, 

 (2) (

) (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, 

 (3) (b) n.16 (

) (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

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.

                                 21
                    Decided December 19, 2023.

     Murder. Chatham Superior Court. Before Judge Morse.

     David T. Lock, for appellant.

     Shalena Cook Jones, District Attorney, Gabriel A. Justus,

Margaret H. DeLeon, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Beth A. Burton, Deputy Attorney General,

Clint C. Malcolm, Senior Assistant Attorney General, Eric C. Peters,

Assistant Attorney General, for appellee.




                                 22