In the Supreme Court of Georgia

Decided: September 21, 2021

S21A1146. MCINTYRE v. THE STATE.

 COLVIN, Justice.

Following a jury trial, Austin McIntyre was convicted of felony

murder and conspiracy to commit armed robbery in connection with 

the shooting death of Willie Bernard Thomas.1 Appellant claims

 1 On September 8, 2014, a Tift County grand jury jointly indicted 

McIntyre, Deanthony Davenport, and Derrick Britt, Jr., for malice murder 

(Count 1), felony murder predicated on criminal attempt to commit armed 

robbery (Count 2), criminal attempt to commit armed robbery (Count 3), 

conspiracy to commit armed robbery (Count 4), and possession of a firearm 

during the commission of a felony (Count 5). Britt was granted use immunity 

and testified at trial as a witness for the State. McIntyre and Davenport were 

tried together from March 7 through March 10, 2017; the jury acquitted 

McIntyre of malice murder and the weapon charge, and found him guilty of all 

remaining charges. As for Davenport, the jury found him guilty on all charges, 

and this Court affirmed Davenport’s convictions and sentences in Davenport v. 

State, ___ Ga. ___ (859 SE2d 52) (2021).

McIntyre was sentenced to life in prison with the possibility of parole for 

felony murder (Count 2) and 15 years concurrent for conspiracy to commit 

armed robbery (Count 4). The criminal attempt charge merged into the felony 

murder charge for sentencing purposes. McIntyre timely filed a motion for new 

trial on March 24, 2017. The trial court held a hearing on McIntyre’s motion,

at which he was represented by new counsel; the trial court denied the motion
2

that the evidence presented at his trial was insufficient to support 

his convictions, that the trial court erred by failing to charge the jury 

on voluntary manslaughter, and that he was denied constitutionally 

effective assistance of counsel. We affirm.

1. Appellant contends that the evidence presented at trial 

was constitutionally insufficient to sustain his convictions. When 

evaluating the sufficiency of evidence as a matter of constitutional 

due process, “the relevant question is 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 

beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. 

Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) 

(1979). “This Court does not reweigh evidence or resolve conflicts in 

testimony; instead, evidence is reviewed in a light most favorable to 

 

on January 10, 2020. McIntyre filed an application for a discretionary appeal 

to the Court of Appeals. Finding that it lacked jurisdiction, the Court of 

Appeals transferred the case to this Court. Because McIntyre had the right to 

a direct appeal from his convictions, this Court granted the application under 

OCGA § 5-6-35 (j). McIntyre timely filed a notice of appeal. The appeal was 

docketed to the August 2021 term of this Court and submitted for a decision 

on the briefs. 
3

the verdict, with deference to the jury’s assessment of the weight 

and credibility of the evidence.” (Punctuation omitted.) Hayes v. 

State, 292 Ga. 506, 506 (739 SE2d 313) (2013).

As recounted by this Court in Davenport v. State, ___ Ga. ___ 

(859 SE2d 52) (2021), viewing the evidence in the light most 

favorable to the verdict, the evidence presented at the joint jury trial 

showed as follows:

[O]n the evening of August 22, 2014, Davenport and 

Austin McIntyre formed a plan to rob Thomas at his 

residence. Thomas was one of Davenport’s childhood 

friends and lived with several other family members at 

his grandparents’ home in Tift County. On prior 

occasions, Davenport had purchased drugs from Thomas 

to resell, spending as much as $2,000 in a single purchase. 

Based on their previous interactions, Davenport knew 

that Thomas often carried large amounts of cash on his 

person.

To set their plan in motion, Davenport and McIntyre 

borrowed a car from McIntyre’s girlfriend and drove to 

Thomas’s house so they could look at the property and 

prepare for the robbery.[2] Shortly after, McIntyre went to 

 2 Troy Barnes, Jr., testified that he saw McIntyre and Davenport visit 

Thomas’s next door neighbor on the day of the murder, and that the defendants 

had pulled up in a purple car that was later identified as McIntyre’s girlfriend’s 

car. Barnes saw McIntyre walk around to Thomas’s backyard while Davenport 

stayed in the car; shortly thereafter, McIntyre returned to the car and the men 
4

visit Derrick Britt and asked to borrow a gun to “hit a 

little lick.”[3] After obtaining a gun from Britt, McIntyre 

gave it to Davenport.

That evening, Davenport and McIntyre returned to 

Thomas’s home still planning to rob Thomas. As 

Davenport and McIntyre approached the house, 

Davenport saw Thomas in the house and began firing the 

gun at him through the glass front door. Davenport fired 

a total of three shots, two of which struck Thomas, who 

was holding a handgun. Thomas’s family heard the noise 

and discovered Thomas had been shot. Before collapsing 

on the kitchen floor, Thomas named Davenport as the 

shooter. After Thomas collapsed on the floor, his mother 

took the handgun out of Thomas’s hands and hid it before 

the police arrived. Thomas died at the scene before the 

police arrived. Investigators recovered three shell casings 

and a bullet from the scene.

After the shooting, Davenport and McIntyre returned the 

gun to Britt, and Davenport told Britt that he had shot 

Thomas. After returning the handgun, Davenport went to 

his aunt’s house to hide from the police. The next 

morning, the police arrested Davenport. While in custody 

together at the county jail, Davenport confided in his 

cousin, Torrence Billings. Billings asked to speak with 

law enforcement officers and informed them that 

Davenport admitted going to Thomas’s house to rob 

him,[4] firing a handgun at Thomas three times, hitting 

 

drove away. 

3 As Britt testified, this phrase referred to robbing someone to obtain 

money.

4 Billings also told law enforcement that Davenport admitted traveling 

to Thomas’s house with McIntyre and a third person, and that the men had 

several guns in the car.
5

Thomas twice, and returning the gun to Britt.

Police officers later executed a search warrant at Britt’s 

residence and recovered a .40-caliber Glock pistol and 

three unfired rounds. A firearm examiner for the GBI 

testified that the bullet and shell casings recovered from 

the scene of the shooting were all fired from the pistol 

recovered from Britt’s residence. A GBI medical examiner 

conducted an autopsy on Thomas and determined that the 

cause of death was gunshot wounds to the abdomen and 

neck and that the manner of death was homicide. The 

medical examiner noted that two bullets found in 

Thomas’s body had passed through glass before striking 

Thomas.

Davenport testified that he had been selling cocaine for 

over 11 years and had several felony convictions, 

including a prior conviction for conspiracy to commit 

armed robbery. Davenport also testified that on the day 

of the shooting, he borrowed a gun from Britt to confront 

Thomas over a “bad” batch of drugs and “botched” drug 

deal, but that he never intended to shoot him. Davenport 

claimed that as soon as he arrived, Thomas “came out 

shooting” at him, and it was only then that he fired back. 

However, according to the GBI crime scene investigator 

there was “nothing at the scene to corroborate that 

Thomas ever fired a weapon” and the stippling on 

Thomas’s skin was a result of Thomas’s close proximity to 

the front door glass shattering towards him. As such, the 

investigator testified that the glass shatters found at the 

scene indicated that Thomas never stepped outside the 

house before Davenport shot him.

(Footnote omitted.) Id. at (1) (a). 
6

McIntyre claims that the evidence was legally insufficient to 

support his convictions for felony murder predicated on criminal 

attempt to commit armed robbery and conspiracy to commit armed 

robbery5 because the State failed to establish every element of the 

crimes charged. We disagree.

Felony murder occurs when a person “causes the death of 

another human being irrespective of malice” during the commission 

of a felony. OCGA § 16-5-1 (c). Criminal attempt is accomplished 

“when, with intent to commit a specific crime, [a person] performs 

any act which constitutes a substantial step toward the commission 

of that crime.” OCGA § 16-4-1. Armed robbery, in relevant part, is 

accomplished “when, with intent to commit theft, [a person] takes 

property of another from the person or the immediate presence of 

another by use of an offensive weapon[.]” OCGA § 16-8-41 (a). 

 5 McIntyre also claims that the evidence was insufficient as to the standalone charge of criminal attempt to commit armed robbery. However, this 

charge was merged into the felony murder count for sentencing purposes. 

Thus, McIntyre’s claim that the evidence was insufficient as to this count is 

moot. See Lupoe v. State, 284 Ga. 576, 577, n.2 (669 SE2d 133) (2008) (holding 

that a claim of insufficient evidence to support a conviction that has been 

merged into another conviction for sentencing purposes is moot). 
7

Finally, “[a] person commits the offense of conspiracy to commit a 

crime when he together with one or more persons conspires to 

commit any crime and any one or more of such persons does any 

overt act to effect the object of the conspiracy.” OCGA § 16-4-8.

The evidence presented at trial showed that Davenport knew 

from prior drug dealings that Thomas kept large amounts of cash 

and drugs. It further showed that, on the day of the murder,

McIntyre went to Britt’s house and asked to borrow a gun to “hit a 

little lick.” McIntyre then drove Davenport to Thomas’s residence on 

the day of the murder to case the property. The men returned to 

Thomas’s house later in the day, a shootout ensued, and McIntyre 

and Davenport fled the scene together and returned the murder 

weapon to Britt. Finally, the evidence showed that Davenport 

confessed to his cousin that he went to Thomas’s house with 

McIntyre and a third person to rob Thomas, and that Thomas died 

as a result of being shot. Based on the foregoing, a rational jury 

could conclude that McIntyre and Davenport agreed to commit an 

armed robbery of Thomas, took a substantial step toward 
8

committing that offense and an overt act in furtherance of the 

conspiracy, and caused a death in the process. See Parks v. State, 

304 Ga. 313, 315-316 (1) (a) (818 SE2d 502) (2018) (“[C]riminal 

intent may be inferred from presence, companionship, and conduct 

before, during, and after the offense.”) (punctuation omitted); Jones 

v. State, 292 Ga. 656, 658 (1) (a) (740 SE2d 590) (2013) (“[C]riminal 

intent is a question for the jury, and it may be inferred from that 

person’s conduct before, during, and after the commission of the 

crime.”); Lofton v. State, 309 Ga. 349, 353 (1) (846 SE2d 57) (2020) 

(“[A] shooting is a reasonably foreseeable consequence of an armed 

robbery and thus a party to an armed robbery is culpable for felony 

murder if a fatal shooting occurs.”). Accordingly, the jury was 

authorized to find McIntyre guilty beyond a reasonable doubt of the

crimes of which he was convicted. See Jackson, 443 U.S. at 319; see 

also Davenport, supra, ___ Ga. at (1) (b) (finding sufficient evidence 

for Davenport’s convictions). 

2. McIntyre argues that the trial court erred by failing to 

instruct the jury on voluntary manslaughter. The record shows that 
9

Davenport filed a written request that the trial court charge the jury 

on voluntary manslaughter. McIntyre, however, made no such 

request, and there is nothing in the record showing that he joined in 

Davenport’s request to charge. The trial court ruled that it would 

not give a charge on voluntary manslaughter, explaining that,

“while the jury charges on self-defense and voluntary manslaughter 

are not mutually exclusive, the provocation necessary to support a 

charge of voluntary manslaughter is different from that which could 

support a claim of self-defense.” McIntyre made no objection to the 

trial court’s ruling, and, after the trial court charged the jury, 

McIntyre made no objection to the charge as given. 

Now, on appeal, McIntyre alleges that the trial court erred in 

failing to give the instruction. Namely, McIntyre argues that, 

because Davenport requested a charge on voluntary manslaughter 

and because there was slight evidence to support that charge, the 

trial court erred by failing to instruct the jury on voluntary 

manslaughter. However, because McIntyre neither requested the 

trial court charge the jury on voluntary manslaughter nor objected
10

to the trial court’s ruling, this claim can be reviewed only for plain 

error. See Williams v. State, 302 Ga. 147, 151-152 (2) (805 SE2d 

873) (2017); Shaw v. State, 292 Ga. 871, 872-873 (2) (742 SE2d 707)

(2013) (jury charge reviewed for plain error where appellant “neither 

requested a charge on the duty to retreat nor objected when the trial 

court failed to give such a charge”). For the reasons set forth by this 

Court in Davenport, supra, ___ Ga. at (3), and in light of McIntyre’s 

defense that he was not present during, and did not participate in, 

the crimes charged, McIntyre has failed to show that the trial court 

committed plain error.6 Consequently, McIntyre’s claim fails.

 6 In Davenport, supra, ___ Ga. at (3), this Court held as follows:

A charge on voluntary manslaughter is warranted where there is 

slight evidence showing that the accused was so provoked that he 

“reacted passionately rather than simply in an attempt to defend 

himself” when he killed the victim. (Citation and punctuation 

omitted.) Jackson v. State, 301 Ga. 878, 880 (2) (804 SE2d 357) 

(2017). But, “neither fear that someone is going to pull a gun nor 

fighting are the types of provocation which demand a voluntary 

manslaughter charge.” Smith v. State, 296 Ga. 731, 737 (3) (770 

SE2d 610) (2015). Whether the defendant presented any evidence 

of provocation sufficient to excite the passions of a reasonable 

person is a question of law. See Campbell v. State, 292 Ga. 766, 

767 (2) (740 SE2d 115) (2013).

Davenport’s claim fails because there was no error, plain or 
11

3. Finally, McIntyre alleges that he received ineffective

assistance of trial counsel based upon counsel’s failure to file a 

motion to sever his trial so he could be tried alone. “To preserve the 

issue of ineffective assistance of previous counsel, new counsel must 

raise the issue at the earliest practicable opportunity of postconviction review or the issue is waived.” (Citation omitted.) Glenn 

v. State, 302 Ga. 276, 284 (V) (806 SE2d 564) (2017). Here, despite 

having new counsel at the hearing on his motion for new trial, 

McIntyre failed to raise his claim of ineffective assistance of counsel 

either in an amended motion for new trial or at the hearing itself. 

Accordingly, this claim is not preserved for appellate review. See 

Prince v. State, 295 Ga. 788 (2) (b) (764 SE2d 362) (2014) (claim of 

 

otherwise, in the trial court’s refusal to give a voluntary 

manslaughter instruction. Davenport pursued a self-defense 

strategy at trial, claiming that he went to Thomas’s home to 

resolve an issue from a prior drug deal and that Thomas suddenly 

attacked him. Davenport testified multiple times that he did not 

shoot Thomas due to any heightened emotion or anger. Further, in 

his account to both Britt and Davenport’s cousin, the shooting was 

the result of a botched armed robbery. Because there was no 

evidence to support a jury charge on voluntary manslaughter, the 

trial court did not err in refusing to give the charge. 
12

ineffective assistance not preserved where defendant failed to raise 

the issue in his amended motion for new trial, failed to raise the 

claim at the hearing on that motion, and failed to obtain a ruling on 

it from the trial court). 

Judgment affirmed. All the Justices concur.