In the Supreme Court of Georgia

Decided: June 30, 2022

S22A0093. McIVER v. THE STATE.

 BOGGS, Presiding Justice.

At a 2018 jury trial, Claud Lee “Tex” McIver III was convicted 

of felony murder and other crimes arising out of the shooting death 

of his wife, Diane McIver.1 He appeals, asserting among other 

enumerations of error that the trial court erred in refusing his 

 1 The shooting occurred on September 25, 2016. McIver was originally 

indicted in April 2017; on August 22, 2017, he was reindicted for malice murder 

(Count 1), felony murder (Count 2), aggravated assault (Count 3), possession 

of a firearm during the commission of a felony (Count 4), and three counts of 

influencing a witness (Counts 5-7). McIver was tried before a jury from March 

5 to April 23, 2018. The trial court granted a directed verdict of acquittal as to 

two counts of influencing a witness, and the jury found McIver not guilty of 

malice murder but guilty of felony murder, aggravated assault, the firearm 

possession charge, and the remaining count of influencing a witness. On May 

23, 2018, McIver was sentenced to serve life in prison for felony murder, five 

years in prison for influencing a witness concurrently with the felony murder 

conviction, and a suspended concurrent sentence of five years on the firearm 

charge. The aggravated assault merged with the felony murder count. McIver 

filed a timely motion for new trial, which was amended on February 3, 2020, 

and March 10, 2020. After a hearing on October 23, 2020, the motion was 

denied on July 2, 2021. McIver’s notice of appeal was filed on July 6, 2021, and 

amended on July 13, 2021. The case was docketed in this Court for the term 

beginning in December 2021, and orally argued on January 19, 2022.
2

request to charge the jury on the lesser grade of involuntary 

manslaughter under OCGA § 16-5-3 (b) and in allowing the State to 

introduce allegedly inadmissible and prejudicial evidence and make 

improper comments during closing argument. 

We conclude that the trial court erred in refusing McIver’s 

request to charge on the lesser grade of involuntary manslaughter,

because the charge was authorized by law and some evidence 

supported the giving of the charge. We further conclude that the 

failure to give the charge was not harmless error, because we cannot

say that it is highly probable that this error did not contribute to the 

jury’s verdicts. We therefore reverse McIver’s convictions for felony 

murder and possession of a firearm in the commission of a felony.2

We do not decide issues that are unlikely to recur if the State elects 

to retry McIver, but we do address certain evidentiary issues. We 

see no abuse of discretion in admitting some of the challenged 

evidence, but other evidence lacked relevance or its probative value 

 2 McIver does not enumerate any error on appeal with respect to his 

conviction for influencing a witness, which is therefore affirmed.
3

was substantially outweighed by the danger of unfair prejudice, so 

that unless the evidentiary posture changes for any retrial, that 

evidence should not be admitted again.

1. The evidence at trial.3

The evidence presented at trial showed the following: Late in 

the evening of September 25, 2016, McIver, Diane, and Diane’s close 

friend, Dani Jo Carter, were on their way back from a weekend at 

the McIvers’ property in Putnam County, driving to Diane’s 

condominium in the Buckhead area of Atlanta after a stop for dinner 

in Conyers. Carter testified that she was driving, Diane was in the 

front passenger seat, and McIver was in the rear passenger seat, at 

times conversing and at other times asleep. Carter was not aware of 

any argument or disagreement between Diane and McIver that 

weekend or during the drive. 

When they got onto the Downtown Connector in Atlanta, traffic 

 3 Because in this case we must consider whether the trial court’s error 

was harmful and therefore requires reversal, we review the evidence in some

detail and not only in the light most favorable to the jury’s verdicts. See Strong 

v. State, 309 Ga. 295, 296 n.2 (845 SE2d 653) (2020).
4

was heavy, and Carter said they needed to get off the interstate and 

go up Peachtree Street. Diane said something to McIver, but he did 

not respond, and Diane told Carter to get off at the Edgewood 

Avenue exit. After they exited the interstate, McIver said, “Girls, I 

wish you hadn’t done this. This is a really bad area,” and asked 

Diane to hand him his gun from the center console. Diane handed 

him the gun, a .38-caliber revolver, which was not in its holster,

which was also in the center console, but rather in a plastic grocery 

bag.

Diane instructed Carter to turn onto Piedmont Road and 

continue north. Carter assumed that McIver had fallen asleep again,

because he did not join in their conversation. Sometime later, they 

were stopped at a traffic light on Piedmont Road, at 14th Street, 

when Carter heard several clicks and asked what Diane was doing; 

she responded that she was locking the doors. At that moment 

Carter heard a loud “boom” and Diane swung around and asked, 

“Tex, what did you do?” McIver responded that “the gun discharged.”

Carter saw the gun in McIver’s hand, pointing down, still in the 
5

plastic bag. The bullet passed through the back of the front 

passenger seat, striking Diane in the back. 

McIver instructed Carter to drive to Emory University

Hospital on Clifton Road.4 At the hospital, when asked how the 

shooting occurred, Diane told doctors it was an accident. Carter told 

the police it was “a horrible accident.” Diane died during surgery as 

a result of internal injuries to her spine, pancreas, kidney, and 

stomach.

According to some witnesses at the hospital, at times McIver 

did not appear to be upset or grieving. The State presented evidence 

that McIver told the police that he fell asleep with the gun in his lap 

and the gun fired, and that he made statements at the hospital that 

the gun discharged accidentally when the car went over a bump. The 

State also presented testimony from a nurse who was not involved 

 4 Although the State argued at trial that Emory Hospital is farther than 

Grady Memorial Hospital from the scene of the shooting, the actual distances 

were never established. Moreover, while evidence was presented that Grady is 

better equipped to treat gunshot wounds, during oral argument in this Court, 

the State’s counsel acknowledged that no evidence was presented that McIver 

believed that Grady was so equipped or that he intentionally directed Carter 

to drive to Emory to avoid going to Grady.
6

in treating Diane, who said that she was passing by in the hospital 

hallway when she overheard McIver say, “I was cleaning my gun in 

the bathroom when I shot her.” McIver later told a friend that there 

had been a “car accident” and Diane had died. He made several 

statements within the hearing of police officers and others 

indicating that he “could not go to jail,” that he knew “how these 

things can go down,” and that “this doesn’t look good.” McIver also 

told Carter to say that she had just come to the hospital as a family 

friend, but she told him she could not lie. 

A firearms examiner for the State determined that McIver’s

double-action .38-caliber revolver was in good working order and,

due to the internal hammer block, could not have discharged 

without the trigger being pulled. The trigger pull was either 2 1⁄4 

pounds with the hammer cocked or 12 1⁄4 pounds with the hammer 

uncocked. An accident reconstruction expert for the State examined 

the pistol and the vehicle and testified, based on the trajectory of the 

bullet, that McIver did not have the pistol in his lap but was holding 

the pistol in a raised position, above the plane of his lap, at the time 
7

it was fired. But an expert for the defense also examined the pistol 

and the vehicle and concluded, to the contrary, that the trajectory 

and the limited space in the rear seat made it “physically 

impossible” for the gun to have been held upright, and that the 

bullet’s path showed that the gun was lying on its side resting on 

McIver’s lap when it discharged. McIver also elicited testimony from 

a State’s witness that McIver suffered from a sleep disorder that 

could cause him to make involuntary movements if he was startled 

awake.

The State presented a substantial amount of evidence 

regarding the McIvers’ financial circumstances. McIver and Diane 

were married in 2005, a second marriage for both of them. McIver 

was a partner at a large Atlanta law firm; Diane was wealthy and 

an active business owner, the president of one real estate business 

and an owner or part owner of three other businesses. The McIvers 

kept their business interests and sources of income separate. Diane 

owned a condominium in Buckhead, and the McIvers owned a rural 

property in Putnam County, referred to as “the ranch,” where they 
8

spent most weekends. They covered the expenses for their own 

properties, but Diane funded some improvements to the ranch. 

Before their marriage, Diane loaned McIver $750,000. At the time 

of the marriage, McIver gave Diane her ownership interest in the 

ranch, which they held as joint tenants with right of survivorship. 

In 2011, one of Diane’s companies loaned McIver an additional

$350,000 through a promissory note secured by the ranch property. 

The note was renewed in 2014, payable in 2017 or on demand within 

90 days. If the property was foreclosed on, Diane as sole owner of the 

lending company could have deeded full title to the property to 

herself.

McIver executed a will in 2005, providing that his interest in 

the ranch would go to Diane if she survived him, and the residue of 

the estate would go to one of his adult children. Diane executed a 

will in 2006 that contained substantial bequests to McIver and 

established a trust for his benefit. Diane had no children but was 

very close to the McIvers’ godson. Her will was executed before their 

godson was born and so did not include him, but several witnesses 
9

testified that she wished to leave the ranch to him. The State 

presented evidence that McIver and Diane disagreed about how the 

ranch should be disposed of after both of them died. Codicils to 

Diane’s will were prepared in 2007 and in 2009 or 2010 but were 

never executed.5 McIver executed a codicil to his will in 2009, which 

reiterated that Diane was to receive all of his interest in the ranch 

if he predeceased her. An attorney testified that between 2009 and 

2011, McIver and Diane discussed executing new wills with him.

McIver later made several appointments for the couple to discuss 

the contents of the new wills, but cancelled them. The attorney 

testified that no new wills were ever prepared.6

 5 The State elicited testimony from a neighbor and friend of the McIvers 

that approximately three years before Diane’s death, she told the witness that 

she had made changes to her will to remove some beneficiaries. Diane’s 

attorney testified that he had prepared a codicil in 2007 to remove a female 

friend with whom Diane had had a falling out, and to add several individuals 

including the McIvers’ godson as beneficiaries, but that codicil was never 

executed. Neither of the two attorneys who worked for the McIvers on estate 

matters testified to the contents of the second codicil, and it was not admitted 

into evidence.

6 No testimony was presented as to the contents of any new will, and no 

such will was ever found. The only evidence regarding even the existence of a 

second will was the testimony of a witness who worked in Diane’s office that 

approximately two years before Diane’s death, Diane told the witness that a 
10

The State also presented evidence suggesting that McIver was 

experiencing financial difficulty as a result of his impending 

retirement from his law firm. He had recently become an “income 

partner,” which meant that he was paid a set salary rather than a 

share of profits. His financial position had been worsening for 

several years, and he had told friends that he did not have enough 

money to cover expenses. The State presented testimony that Diane 

had regularly transferred money to McIver, that he would have had 

a negative cash flow but for those transfers, and that before Diane’s 

death, McIver’s net worth was approximately $1.5 million, but after 

her death, it increased to between $3.6 million and $6.9 million. 

Several months after Diane’s death, McIver sold her furs, jewelry 

and other personal items through an auction company. According to 

the attorney for the estate, he recommended the sale to pay cash 

bequests specified in Diane’s will, as well as expenses of and claims 

 

document the witness had copied for her was “my new will.” The witness did 

not look at the contents of the document, but she testified that it was 

somewhere between two and ten pages long. Diane’s 2006 will was 19 pages 

long, while the unexecuted 2007 codicil is 5 pages long.
11

against the estate.

The trial took place over a seven-week period in March and 

April of 2018. The State asserted that McIver committed malice 

murder and felony murder based on aggravated assault, while 

McIver contended that Diane’s death was caused by an accident. The 

jury was charged on the indicted crimes and also involuntary 

manslaughter in the commission of an unlawful act as a lesser

included offense of malice murder and felony murder, but not on 

involuntary manslaughter in the commission of a lawful act in an 

unlawful manner as a lesser included offense. The jury deliberated 

for more than four days, sending numerous notes to the trial court, 

including a request to inspect the vehicle involved, which was 

arranged. On the fifth day of deliberations, the jury sent a note 

indicating that it was unable to reach a verdict as to intent on the 

indicted counts of malice murder, felony murder, aggravated 

assault, and influencing a witness. After an extended discussion 

with counsel, the trial court gave the jury a slightly modified pattern 
12

Allen charge.7 The jury then returned its verdicts, finding McIver 

not guilty of malice murder but guilty of felony murder, aggravated 

assault, influencing a witness, and possession of a firearm in the 

commission of a felony.8

2. Refusal of requested charge on OCGA § 16-5-3 (b).

McIver contends that the trial court erred in refusing his

written request to instruct the jury on the lesser grade of

involuntary manslaughter pursuant to OCGA § 16-5-3 (b).9 We 

 7 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896); 

Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.70.70 

(4th ed. 2007) (Jury (Hung)).

8 The verdict form provided blanks for each count of the indictment, and 

the jury was instructed that under “Count 1 (Murder)” and “Count 2 (Felony 

murder),” it had the option for a finding of “Guilty of involuntary

manslaughter” as a lesser included offense, and both counts contained such a 

blank. The jury did not mark either of those blanks. 9 OCGA § 16-5-3 provides in its entirety:

(a) A person commits the offense of involuntary manslaughter in 

the commission of an unlawful act when he causes the death of 

another human being without any intention to do so by the 

commission of an unlawful act other than a felony. A person who 

commits the offense of involuntary manslaughter in the 

commission of an unlawful act, upon conviction thereof, shall be 

punished by imprisonment for not less than one year nor more 

than ten years.

(b) A person commits the offense of involuntary manslaughter in 

the commission of a lawful act in an unlawful manner when he 

causes the death of another human being without any intention to 
13

agree.

The offense of involuntary manslaughter can be committed in 

two ways: causing the death of another without any intention to do 

so “by the commission of an unlawful act other than a felony,” OCGA 

§ 16-5-3 (a), which is a felony, or “by the commission of a lawful act 

in an unlawful manner likely to cause death or great bodily harm,”

OCGA § 16-5-3 (b), which is a misdemeanor.10

In extended discussions during the charge conference, the trial 

court stated:

[W]e have three tiers of potential culpability. If the jury

were to find that Mr. McIver were merely criminally 

negligent for holding a loaded gun pointed at his wife’s 

 

do so, by the commission of a lawful act in an unlawful manner 

likely to cause death or great bodily harm. A person who commits 

the offense of involuntary manslaughter in the commission of a 

lawful act in an unlawful manner, upon conviction thereof, shall 

be punished as for a misdemeanor.

10 We note that, while the terms “felony” and “misdemeanor” are 

sometimes used to distinguish the provisions of OCGA § 16-5-3 (a) and (b), that 

terminology should not be used before the jury. See Johnson v. State, 261 Ga. 

236, 239 (5) (404 SE2d 108) (1991). See also Paul M. Kurtz and Robert E. 

Cleary, Jr., CRIMINAL OFFENSES AND DEFENSES IN GEORGIA 844 (2019 ed.)

(suggesting the terms “unlawful act” involuntary manslaughter and “criminal 

negligence” involuntary manslaughter). Hereafter in this opinion, we will use 

the statutory language of “unlawful act” and “unlawful manner” to 

differentiate the two offenses.
14

back in a car, then we’d be talking about misdemeanor 

involuntary manslaughter [i.e., OCGA § 16-5-3 (b)]. If it 

is, in fact, [the crime of] reckless conduct, then it’s felony 

involuntary manslaughter [i.e., OCGA § 16-5-3 (a)]. And 

then if it was an intentional act, then it’s as charged.

But the night before closing arguments, the trial court informed the 

parties that it would not give the instruction on the misdemeanor 

form of involuntary manslaughter – the commission of a lawful act 

in an unlawful manner.11 With respect to the homicide counts, the 

court instructed the jury on malice murder, felony murder based on

aggravated assault, unlawful act involuntary manslaughter under 

OCGA § 16-5-3 (a) based upon the offense of “reckless conduct,” see 

OCGA § 16-5-60 (b),12 and accident.

 11 Before closing arguments began, the trial court noted that it had sent 

the revised charge to counsel via email. McIver’s counsel objected to the 

omission of an instruction on OCGA § 16-5-3 (b), asserting that reckless 

conduct and negligent conduct were different, and the trial court noted that 

“you and I disagree,” but gave no explanation.

12 OCGA § 16-5-60 (b) provides: 

A person who causes bodily harm to or endangers the bodily safety 

of another person by consciously disregarding a substantial and 

unjustifiable risk that his act or omission will cause harm or 

endanger the safety of the other person and the disregard 

constitutes a gross deviation from the standard of care which a 

reasonable person would exercise in the situation is guilty of a 

misdemeanor.
15

In its order denying McIver’s motion for new trial, the trial 

court only briefly addressed the question of the jury instruction on 

unlawful manner involuntary manslaughter:

Defendant, in his requests to charge, sought to have the 

Court charge the jury on misdemeanor involuntary 

manslaughter (O.C.G.A. § 16-5-3 (b)), arguing that some 

evidence supported a finding that, in killing his wife, 

Defendant engaged in a lawful act in an unlawful 

manner. The Court found both that the record did not 

support such a charge and that the pertinent case law 

disallowed such a charge. See, e.g., Manzano v. State, 282 

Ga. 557, 559 [(651 SE2d 661)] (2007). Having reviewed 

the post-trial arguments of both parties, the Court 

maintains the position articulated at trial that a charge 

on misdemeanor involuntary manslaughter was 

supported neither by the record nor existing precedent 

and thus that is was not error to exclude such a charge 

from the instructions provided to the jury.

McIver argues that there was, at a minimum, slight evidence 

that he was engaged in a lawful act (which he describes as falling 

asleep with a gun on his lap in the back seat of a vehicle) in an 

unlawful manner (that is, in a criminally negligent manner likely to 

cause death or great bodily harm) when the gun inadvertently 

 

The amendment to the statute that will take effect on July 1, 2022 does not 

alter the wording of subsection (b).
16

discharged and killed Diane. He therefore contends that the trial 

court erred in denying his written request to charge the jury on 

unlawful manner involuntary manslaughter. The State argues that 

the trial court properly declined to instruct the jury on unlawful 

manner involuntary manslaughter, relying upon decisions such as 

Manzano to contend that any defendant who handles a gun with 

fatal results, even if unintentional, “has necessarily committed the 

misdemeanor of reckless conduct.” (Citations and punctuation 

omitted.) 282 Ga. at 559 (3) (a).

To resolve this dispute, we must look first to the extensive

history of the law of involuntary manslaughter, including the

changes made by the General Assembly in altering that law and 

other related statutes in its general revision of the Criminal Code in 

1968. We must always consider statutory text in its context, “which 

includes the structure and history of the text and the broader 

context in which that text was enacted, including statutory and 

decisional law that forms the legal background of the written text.”

(Citations and punctuation omitted.) Seals v. State, 311 Ga. 739, 
17

740-741 (1) (860 SE2d 419) (2021). 

We conclude from our review that Georgia has a longestablished, statutory homicide offense of involuntary 

manslaughter, with two grades: first, the felony offense of

involuntary manslaughter in the commission of an unlawful act 

other than a felony, and second, the misdemeanor offense of

involuntary manslaughter in performance of a lawful act but with

criminal negligence. This distinction was retained by the General 

Assembly in the 1968 revision of the Criminal Code. We further 

conclude that the element of criminal negligence in unlawful 

manner involuntary manslaughter is distinguishable from ordinary 

negligence on the one hand and from the mental state required for 

statutory reckless conduct on the other, and that the law does not 

forbid the giving of an instruction on unlawful manner involuntary 

manslaughter in every case involving a firearm. Finally, slight 

evidence authorizing the refused instruction was presented at trial,

and we cannot say that it is highly probable that the error did not 

contribute to the jury’s verdict.
18

(a) History of the involuntary manslaughter statute.

The distinction in Georgia between the two grades of

involuntary manslaughter dates back to the 1816 Penal Code. See

Ga. L. 1816, p. 142. There, the offense of manslaughter was defined 

as follows:

§ 5. Manslaughter, is homicide in the second degree; 

manslaughter is the killing of a human creature without 

malice, express or implied, and without any mixture of 

deliberation whatever. It must be voluntary, upon a 

sudden heat of passion; or involuntary, in the commission 

of an unlawful act, or a lawful act without due caution and 

circumspection.

After §§ 6 and 7, which further defined voluntary manslaughter and 

its prescribed punishment, involuntary manslaughter was further 

defined as follows:

§ 8. Involuntary manslaughter, shall consist in the 

killing of a human being, without any intention to do so; 

but in the commission of an unlawful act, or a lawful act, 

which probably might produce such a consequence.

§ 9. Involuntary manslaughter, in the commission of 

an unlawful act, shall be punished by confinement or

labor, or solitude, in the penitentiary, for a term not less 

than six months, and not longer than three years.

§ 10. Involuntary manslaughter, in the commission 
19

or performance of a lawful act, where there has not been 

observed necessary discretion and caution, shall be 

punished by confinement or labor, or solitude in the 

penitentiary, for a term not less than three months, and 

not longer than one year.

Ga. L. 1816 at pp. 147-148.

With the enactment of the 1817 Penal Code, § 8 of the 

involuntary manslaughter statute was revised to include the first 

reference to “unlawful manner,” as well as to add a provision in 

effect describing felony murder:

Involuntary manslaughter, shall consist in the 

killing of a human being, without any intention to do so; 

but in the commission of an unlawful act, or a lawful act, 

which probably might produce such a consequence, in an 

unlawful manner: Provided always, that where such 

involuntary killing shall happen in the commission of an 

unlawful act, which in its consequences naturally tends 

to destroy the life of a human being, or is committed in 

the prosecution of a felonious or riotous intent, the offence 

shall be deemed and adjudged to be murder.13

Ga. L. 1817 at p. 96. See also Oliver H. Prince, A DIGEST OF THE

 13 The second clause, as later modified by the 1833 Penal Code, was 

removed in 1968 when a separate felony murder statute was enacted, now 

OCGA § 16-5-1 (c). For a history of felony murder statutes in Georgia, see 

generally Shivers v. State, 286 Ga. 422, 425 n.3 (1) (688 SE2d 622) (2010) 

(Nahmias, J., concurring specially). 
20

LAWS OF THE STATE OF GEORGIA 347 (1st ed. 1822).14 The language 

used to define the elements of the two grades of involuntary 

manslaughter was carried forward through subsequent codes

unchanged. Although the relevant code sections were revised in 

some respects in the Code of 1933,15 they continued in force until the 

 14 Available at University of Georgia School of Law, Historical Georgia 

Digests and Codes, https://digitalcommons.law.uga.edu/ga_code/6 . 15 Former 1817 Penal Code § 5 was enacted as Code of 1933 § 26-1006:

Manslaughter is the unlawful killing of a human creature, without 

malice, either express or implied, and without any mixture of 

deliberation whatever, which may be voluntary, upon a sudden 

heat of passion, or involuntary, in the commission of an unlawful 

act, or a lawful act without due caution and circumspection. 

(Emphasis supplied).

Former 1817 Penal Code § 8 was enacted as Code of 1933 § 26-1009:

Involuntary manslaughter shall consist in the killing of a human 

being, without any intention to do so, but in the commission of an 

unlawful act, or a lawful act, which probably might produce such 

a consequence, in an unlawful manner: Provided, that where such 

involuntary killing shall happen in the commission of an unlawful 

act which, in its consequences, naturally tends to destroy the life 

of a human being, or is committed in the prosecution of a riotous 

intent, or of a crime punishable by death or confinement in the 

penitentiary, the offence shall be deemed and adjudged to be 

murder. (Emphasis supplied.)

The Code of 1933 combined former 1817 Penal Code §§ 9 and 10 as Code of 

1933 § 26-1010:

Punishment for involuntary manslaughter. — Involuntary 

manslaughter, in the commission of an unlawful act, shall be 

punished by confinement and labor in the penitentiary for not less 

than one nor longer than three years. Involuntary manslaughter, 

in the commission or performance of a lawful act, where there has 
21

general revision of the Georgia criminal statutes in 1968.16

The 1968 revision was intended “to revise, classify, consolidate, 

and supersede the present laws relating to crimes and the 

punishment therefor and to establish new laws relating thereto” and 

“to provide a new Criminal Code.” Ga. L. 1968, p. 1249. It was 

initiated by the appointment of a Criminal Law Study Committee 

tasked with revising the criminal statutes to address “problems 

which have arisen due to ambiguities and inconsistencies in the 

present law.” Ga. L. 1961, p. 96, 98; see also Patterson v. State, 299 

Ga. 491, 505 (2) (b) (789 SE2d 175) (2016) (Blackwell, J., dissenting).

The 1968 Code consolidated the statutes pertaining to 

manslaughter: it eliminated Code of 1933 § 26-1006 defining 

manslaughter generally. It retained one section defining voluntary 

manslaughter, Ga. Code Ann. § 26-1102, and one defining 

involuntary manslaughter, Ga. Code Ann. § 26-1103 (a) and (b). See 

 

not been observed necessary discretion and caution, shall be 

punished as for a misdemeanor. (Emphasis supplied.) 

16 The maximum penalty for unlawful act involuntary manslaughter was 

increased in 1951 to imprisonment for five years. See Ga. L. 1951, p. 737.
22

Ga. L. 1968 at pp. 1276-1277.17 It also removed the language in the 

involuntary manslaughter statute referring to felony murder, and 

enacted a separate statute defining felony murder, Ga. Code Ann. § 

26-1101 (b), now OCGA § 16-5-1 (c). See Ga. L. 1968 at p. 1276.18

Significantly for our analysis, in the 1968 revision the General 

Assembly also created a new, misdemeanor offense, denominated 

“reckless conduct,” Ga. Code Ann. § 26-2910. See Ga. L. 1968 at pp. 

1325-1326.19

 17 When the Official Code of Georgia Annotated was adopted in 1982, the 

1968 revision, Ga. Code Ann. § 26-1103, was carried forward as OCGA § 16-5-3. 

The definitional language was unchanged, other than the removal of two 

commas, but the language prescribing the penalty was reworded. The 

maximum penalty for unlawful act involuntary manslaughter was increased 

in 1984 to imprisonment for ten years. See Ga. L. 1984, p. 397.

18 Ga. Code Ann. § 26-1101 (a), unlawful act involuntary manslaughter, 

further specified that the unlawful act must be “other than a felony,” removing 

possible ambiguity or inconsistency with respect to the felony murder statute. 

19 As originally enacted, Ga. Code Ann. § 26-2910 provided: 

A person commits a misdemeanor when he causes bodily harm to 

or endangers the bodily safety of another person by consciously 

disregarding a substantial and unjustifiable risk that his act or 

omission will cause the harm or endanger the safety, and the 

disregard constitutes a gross deviation from the standard of care 

which a reasonable person would exercise in the situation. 

Ga. Code Ann. § 26-2910 was carried forward into the Official Code of Georgia 

Annotated as OCGA § 16-5-60. The text, as amended in 1988 and 2003, is now 

found at OCGA § 16-5-60 (b), which, as noted above, provides:

A person who causes bodily harm to or endangers the bodily safety 
23

(b) Statutory construction.

In interpreting statutes, we “presume that the General 

Assembly meant what it said and said what it meant.” (Citations 

and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a)

(751 SE2d 337) (2013). And in determining a statute’s meaning,

we apply the fundamental rules of statutory construction

that require us to construe the statute according to its 

terms, to give words their plain and ordinary meaning, 

and to avoid a construction that makes some language 

mere surplusage. We must also seek to effectuate the 

intent of the Georgia legislature. OCGA § 1-3-1 (a). In this 

regard, in construing language in any one part of a 

statute, a court should consider the entire scheme of the 

statute and attempt to gather the legislative intent from 

the statute as a whole.

(Citations and punctuation omitted.) Coates v. State, 304 Ga. 329, 

330-331 (818 SE2d 622) (2018). “It is a basic rule of construction that 

a statute . . . should be construed to make all its parts harmonize 

and to give a sensible and intelligent effect to each part, as it is not 

 

of another person by consciously disregarding a substantial and 

unjustifiable risk that his act or omission will cause harm or 

endanger the safety of the other person and the disregard 

constitutes a gross deviation from the standard of care which a 

reasonable person would exercise in the situation is guilty of a 

misdemeanor.
24

presumed that the legislature intended that any part would be 

without meaning.” (Citation and punctuation omitted.) Gilbert v. 

Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994). And 

“[c]ertainly our legislature is presumed to enact statutes with full 

knowledge of existing law, including court decisions.” (Citation and 

punctuation omitted.) Roberts v. Cooper, 286 Ga. 657, 660 (691 SE2d 

875) (2010).

Moreover, “[f]or context, we . . . look to the other provisions of 

the same statute, the structure and history of the whole statute, and 

the other law — constitutional, statutory, and common law alike —

that forms the legal background of the statutory provision in 

question.” (Citations and punctuation omitted.) Tibbles v. Teachers 

Retirement System of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) 

(2015). And it is “a core principle of statutory interpretation that 

changes in statutory language generally indicate an intent to change 

the meaning of the statute.” (Citations and punctuation omitted.) 

Middleton v. State, 309 Ga. 337, 345 (3) (846 SE2d 73) (2020).

(c) The revision of the involuntary manslaughter statutes.
25

In the 1968 revision, the General Assembly retained the 

distinction between involuntary manslaughter in the commission of

“an unlawful act” and in the commission of “a lawful act in an 

unlawful manner.” But it removed the language “without due 

caution and circumspection” and “where there has not been observed 

necessary discretion and caution,” and altered “which probably 

might produce such a consequence,” i.e., the death of another human 

being, to “likely to cause death or great bodily harm.” Presuming 

significance to these textual changes, as we must, we conclude that 

the 1968 revision, true to its expressed aim, removed inconsistent or 

ambiguous language that had defined the offense of unlawful 

manner involuntary manslaughter in language that suggested mere 

civil or ordinary negligence.20

 20 For prior use of the same or similar language in civil contexts, see, e.g., 

Central of Ga. R. Co. v. Price, 121 Ga. 651, 655 (1) (49 SE 683) (1905) (in 

personal injury action against railroad by employee, “it was for the jury to say 

whether or not the plaintiff, on this occasion, acted with due caution and

circumspection”); Merchants’ Nat. Bank v. Carhart, 95 Ga. 394, 398 (2) (22 SE 

628) (1894) (in action for negligent retention of bank cashier, bank required “to 

show reasonable care and circumspection” in selecting and retaining 

employee); Savannah, Fla. & W. R. Co. v. Slater, 92 Ga. 391 (1) (17 SE 350) 

(1893) (headnote by the Court) (in personal injury action, describing negligence 
26

This conclusion is also supported by the fact that, while the 

pre-1968 Code provisions were in effect, this Court and the Court of 

Appeals had considered the scope of the involuntary manslaughter 

statutes and noted that, despite the inclusion of civil or ordinary

negligence language, the unlawful manner involuntary 

manslaughter statute required something more than ordinary civil

negligence. See Geele v. State, 203 Ga. 369, 373 (47 SE2d 283) (1948)

(noting the statutory language in the involuntary manslaughter 

statutes referring to “due caution and circumspection” and 

“necessary discretion and caution” and the “culpable neglect”

language in Code of 1933 § 26-404, addressing otherwise criminal 

conduct committed “by misfortune or accident”).21 Geele cites a 

 

of railroad employee in permitting wood to fall from locomotive tender or 

“casting it from the tender without due caution and circumspection”); Eason v. 

Crews, 88 Ga. App. 602, 615-616 (4) (77 SE2d 245) (1953) (charge of trial court 

in personal injury action that children not bound “to exercise the discretion 

and prudence necessary for their safety, with regard to dangerous agencies.” 

(Punctuation omitted.)).

21 In Geele, the appellants, operators of the Winecoff Hotel in Atlanta, 

were indicted for unlawful manner involuntary manslaughter after the hotel 

burned on December 7, 1946. This Court reversed the trial court’s decision 

overruling appellants’ demurrers, concluding that the indictment failed to 

allege any crime. See 203 Ga. at 377.
27

number of earlier decisions such as Cain v. State, 55 Ga. App. 376, 

379 (1) (190 SE 371) (1937), in which the Court of Appeals concluded 

that “criminal negligence” and “culpable negligence” are 

synonymous, and further concluded:

The degree of negligence to be shown on indictment for 

manslaughter, where an unintentional killing is 

established, is something more than is required on the 

trial of an issue in a civil action. A want of due care, or a 

failure to observe the rule of a prudent man, which 

proximately produces an injury, will render one liable for 

damages in a civil action; but to render one criminally 

responsible there must be something more, culpable 

negligence, which under our law is criminal negligence, 

and is such recklessness or carelessness, resulting in 

injury or death, as imports a thoughtless disregard of 

consequences or a heedless indifference to the safety and 

rights of others and a reasonable foresight that injury 

would result.

(Citations omitted.) Id. at 379-380. See also Jordan v. State, 103 Ga. 

App. 493, 494 (2) (120 SE2d 30) (1961) (in instructing jury on 

unlawful manner involuntary manslaughter, “it is the better 

practice to charge that it must result from criminal negligence, 

which is something more than ordinary negligence which would 

authorize a recovery in a civil action.” (Citations and punctuation 
28

omitted.)). 

In effect, the 1968 revision reconciled the involuntary 

manslaughter statutes with the judicial gloss that had been placed 

upon them by removing the references to ordinary negligence. It also 

addressed the other concern raised in Geele by reconciling the 

language in the statute defining what constitutes a “crime” with that 

of the statute addressing misfortune or accident, removing the 

reference to “culpable neglect” in the latter and substituting 

“criminal negligence.” See Code of 1933 § 26-201 (“Definition of 

crime or misdemeanor”);22 Ga. L. 1968 at p. 1269, enacting Ga. Code 

Ann. § 26-601 (“Definition of Crime”).23 Compare Code of 1933 § 26-

404 (“Misfortune or accident as affecting liability”)24 with Ga. L. 

1968 at p. 1269, enacting Ga. Code Ann. § 26-602 (“Misfortune or 

 22 “A crime or misdemeanor shall consist in a violation of a public law, in 

the commission of which there shall be a union or joint operation of act and 

intention, or criminal negligence.”

23 “A crime is a violation of statute of this State in which there shall be a 

union of [sic] joint operation of act, or omission to act, and intention, or criminal 

negligence.”

24 “A person shall not be found guilty of any crime or misdemeanor 

committed by misfortune or accident, and where it satisfactorily appears there 

was no evil design, or intention, or culpable neglect.”
29

Accident Not a Crime”).25

But despite these changes to the relevant statutes, and despite 

the comments of the Criminal Law Study Committee questioning 

the merits of the distinction,26 the General Assembly retained the

separate unlawful act and unlawful manner provisions in the new

involuntary manslaughter statute. Moreover, the legislature

retained an unlawful manner involuntary manslaughter statute 

despite enacting a new misdemeanor offense of “reckless conduct.”

Presuming that no part of the statutory scheme is without meaning, 

and that the General Assembly sought “to avoid inconsistencies and 

overlapping laws,” Patterson, 299 Ga. at 505 (2) (b) (Blackwell, J., 

dissenting), we conclude that the term “unlawful manner,” in the 

 25 “A person shall not be found guilty of any crime committed by 

misfortune or accident where it satisfactorily appears there was no criminal 

scheme or undertaking, or intention, or criminal negligence.” Ga. Code Ann. § 

26-602 was carried forward almost verbatim into the current Code as OCGA § 

16-2-2, which provides: “A person shall not be found guilty of any crime 

committed by misfortune or accident where it satisfactorily appears there was 

no criminal scheme or undertaking, intention, or criminal negligence.” 26 See Ga. Code Ann., Committee Notes to Chapter 26-11, Criminal 

Homicide p. 522 (Harrison Co. 1998) (referring to the distinction between 

unlawful act and unlawful manner involuntary manslaughter in the past tense 

and with disapproval); Kurtz, supra, pp. 844-845 n.716 (concluding that the 

committee notes referred to a change that was proposed but not made).
30

involuntary manslaughter statute, requires a mens rea that is more

culpable than ordinary or civil negligence, but less culpable than the 

mens rea required for the crime of “reckless conduct,” now codified 

as OCGA § 16-5-60 (b). And, as discussed below, we also conclude, 

based upon the body of relevant Georgia law, that the mens rea

required for unlawful manner involuntary manslaughter is 

“criminal negligence.”

(d) Criminal negligence as an element of unlawful manner

involuntary manslaughter. 

The term “criminal negligence” was not defined by statute until 

2004, when the General Assembly added a definition to the Code 

section defining a “crime.” See Ga. L. 2004, p. 57 (codified as OCGA 

§ 16-2-1).27 Before that definition was provided, the Georgia courts

 27 Subsection (b) of that Code section now provides: “Criminal negligence 

is an act or failure to act which demonstrates a willful, wanton, or reckless 

disregard for the safety of others who might be injured thereby.” Criminal 

negligence is not in itself a crime, but appears in other definitions in the 

Criminal Code. See, e.g., OCGA § 16-2-1 (a): “A ‘crime’ is a violation of a statute 

of this state in which there is a joint operation of an act or omission to act and 

intention or criminal negligence”; 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 criminal scheme or undertaking, intention, or criminal 

negligence.” We hold today that it is likewise an element of unlawful manner 
31

developed interpretations of the term that varied to some extent

depending upon the circumstances; for example, if the court was

considering whether a defendant’s conduct fell within the scope of 

the “misfortune or accident” statute or whether the conduct fell 

within one or the other grade of involuntary manslaughter.28

Moreover, before 1968 there was no separate crime of “reckless 

conduct” that courts were required to differentiate from criminal 

negligence for purposes of unlawful manner involuntary 

manslaughter, and indeed there was no statutory definition of 

“criminal negligence” for some time thereafter. Therefore, when pre-

 

involuntary manslaughter.

28As LaFave and Scott have observed:

Though the legislatures and the courts have often made it clear 

that criminal liability generally requires more fault than the 

ordinary negligence which will do for tort liability, they have not 

so often made it plain just what is required in addition to tort 

negligence — greater risk, subjective awareness of the risk, or 

both. Statutes are sometimes worded in terms of “gross negligence”

or “culpable negligence” or “criminal negligence,” without any 

further definition of these terms . . . . The courts thus have had to 

do their best with little guidance from the legislature, with varying 

results.

Wayne R. LaFave & Austin W. Scott Jr., CRIMINAL LAW § 3.7, at 235 - 237 (2d 

ed. 1986), quoted in Black’s Law Dictionary, “Criminal negligence” (11th ed. 

2019).
32

1968 courts analyzed the elements of the offense of unlawful manner

involuntary manslaughter, there was no need to carefully 

distinguish between criminal negligence, the definition of which now

includes the word “reckless,” and the mens rea now required for 

statutory “reckless conduct,” which may not be precisely what we 

have referred to as “recklessness” in older cases.29 See, e.g., Cain, 55

Ga. App. at 379-380 (1). For example, in Austin v. State, 110 Ga. 748 

(36 SE2d 52) (1900), cited with approval in Geele, this Court noted 

that

[w]here death results to one from the discharge of a gun 

in the hands of another, and there was no intention to kill 

nor an intention to discharge the gun, the person in whose 

hands the gun was held would not be guilty of murder, 

although the gun may have been handled in a careless and 

negligent, even reckless manner. In such a case the slayer 

would be guilty of involuntary manslaughter only, and 

the particular grade of that crime would depend upon 

whether it was lawful or unlawful for the slayer to be in 

possession of a deadly weapon at the time and place of the 

killing.

 29 As we noted in Dunagan v. State, 269 Ga. 590, 593 n.3 (2) (a) (502 SE2d 

726) (1998), the language of pre-1968 cases must be considered with “[g]reat 

caution and care,” because the 1968 Criminal Code made significant changes 

in the law of homicide, as noted above.
33

(Citations omitted; emphasis supplied.) Id. at 750.30 And although 

Geele stated that Austin “defined negligence, carelessness, and 

recklessness under the involuntary-manslaughter statute to mean 

the same thing,” 203 Ga. at 375, and that recklessness was required 

to show either grade of involuntary manslaughter, the Court in

Austin seemed to indicate, by use of the qualifying term “even,” that 

recklessness was more culpable than either ordinary negligence or

carelessness, even before the enactment of the statutory offense of 

reckless conduct. See 110 Ga. at 750.31

Other decisions of Georgia courts have not included the concept 

 30 In Austin, the State introduced evidence of a deliberate shooting, but 

the evidence for the defense tended to show that a group of friends was 

engaging in horseplay and that the victim was fatally shot while playfully 

attempting to take a firearm away from the appellant. The Court reversed the 

appellant’s murder conviction based on the trial court’s erroneous charge on 

murder and unlawful manner involuntary manslaughter, concluding that if 

the jury believed the appellant’s evidence, he “was either not guilty of any 

offense, or, at most, guilty of the lowest grade of manslaughter [that is, 

unlawful manner involuntary manslaughter]. If the testimony in behalf of the 

State was true, the accused was guilty of willful and deliberate murder.” 110 

Ga. at 750. 31 Moreover, these conclusions in Geele were at best dicta, since this 

Court went on to hold that the indictment failed to allege any criminal offense, 

including unlawful manner involuntary manslaughter, and reversed the 

overruling of the appellants’ demurrers. See 203 Ga. at 376-377.
34

of recklessness in their analysis of unlawful manner involuntary 

manslaughter. For example, in Drake v. State, 221 Ga. 347 (144 

SE2d 519) (1965), the appellant shot and killed the victim in the 

woods of north Georgia. The appellant told the investigating officers 

that he was deer hunting but shot at what he thought was a fox in 

the mist or fog. While the State’s evidence was sufficient to support 

the appellant’s conviction of murder, it also could have supported a 

finding that the appellant killed the victim without any intention of 

doing so in the commission of an unlawful act – hunting deer out of 

season – or “while shooting at a fox, a lawful act, without due caution 

and circumspection, resulting in culpable negligence.” (Citations 

omitted.) 221 Ga. at 348 (2).32 This Court held that the trial court 

erred in failing to instruct the jury on both grades of involuntary 

manslaughter. See id. 

In Flannigan v. State, 136 Ga. 132 (70 SE 1107) (1911), a young 

 32 As noted above, “culpable neglect,” part of the definition of “misfortune 

or accident” in Code of 1933 § 26-404, was replaced in 1968 by the term 

“criminal negligence” in Ga. Code Ann. § 26-601, now OCGA § 16-2-2, see Ga. 

L. 1968 at p. 1269, but the latter term was not statutorily defined until 2004.
35

man was fatally stabbed. The appellant was convicted of murder and 

appealed the denial of his request for an instruction on unlawful 

manner involuntary manslaughter. While the State offered evidence 

tending to prove murder, the appellant’s evidence would have 

allowed the jury to find that he and two friends were playfully 

wrestling over the appellant’s knife when the victim was 

inadvertently stabbed in the leg. This Court concluded that the trial 

court should have instructed the jury on unlawful manner

involuntary manslaughter:

If the circumstances attending the commission of a 

homicide by stabbing or cutting with a knife authorize the 

inference that there was no wrongful act, and no intention 

to stab or cut, but that the wound was inflicted because 

the person lawfully in possession of the knife may not 

have exercised necessary and proper precaution against a 

probable serious injury to the person who is engaged in a 

playful struggle to dispossess him of the knife, the 

homicide would be involuntary manslaughter. The 

accused under such circumstances would not be entirely 

exonerated from the consequences of his unintentional 

act, where he fails to observe proper precaution against 

the infliction of serious injury, or where the injury would 

not have been inflicted but for his negligence.

Id. at 133. And in Burton v. State, 92 Ga. 449 (17 SE 99) (1893), the 
36

concept of recklessness was specifically excluded:

where both the evidence and the prisoner’s statement 

indicate that the shooting which produced the homicide 

may have been accidental, and that the fatal result may 

have been due to handling the pistol, not recklessly, but 

without the observance of proper caution and 

circumspection, the offence committed, if any, was not 

necessarily murder, but may have been involuntary 

manslaughter in the commission of a lawful act.

(Emphasis supplied.) Id. at 449. As noted in those decisions, 

unlawful manner involuntary manslaughter gives the finder of fact 

the option to find a level of culpability between complete exoneration

by reason of misfortune or accident and involuntary manslaughter 

in the commission of an unlawful act.

In defining the upper limit of that lower level of culpability for 

purposes of unlawful manner involuntary manslaughter, the term

“reckless” has been somewhat elastic and has had different 

meanings in different contexts.33 In Georgia, it has been used in the 

 33 The ordinary dictionary definition of “reckless” is expansive: “1a: 

lacking in caution: deliberately courting danger: foolhardy, rash . . . b: careless, 

neglectful, thoughtless . . . 2a: marked by a lack of caution: heedless, rash . . . 

b: marked by a lack of foresight or consideration: improvident, negligent . . . c: 

irresponsible, wild.” Webster’s Third New International Dictionary 1896 
37

analysis of intent for purposes of malice murder,34 the statutory 

definition of “criminal negligence,” and as part of the definition of 

“gross negligence” in the civil context.35 But, somewhat curiously, 

the word “reckless” itself is not included in the statutory definition 

of the offense denominated as “reckless conduct,” but instead 

appears in the definition of “criminal negligence.”

We accordingly must look at the specific wording of the statutes

to differentiate unlawful manner involuntary manslaughter from 

the misdemeanor offense of “reckless conduct.” Under OCGA § 16-5-

60 (b), to commit the offense of “reckless conduct,” a person must 

“consciously disregard[] a substantial and unjustifiable risk that his 

 

(1976). 

34 See Downey v. State, 298 Ga. 568, 569-570 (1) (783 SE2d 622) (2016) 

(firing shots “in conscious disregard of the substantial risk of harm to which 

the shots exposed others” constitutes “recklessness sufficient to imply malice” 

for purposes of malice murder).

35 See McKinney v. Burke, 108 Ga. App. 501, 507 (4) (133 SE2d 383) 

(1963) (“[A]n inadvertent act accompanied by recklessness is said to be 

something more than ordinary negligence, and to amount at the least to gross 

negligence.” (Citation omitted.)). See also Wheat v. State, 171 Ga. App. 583, 584 

(2) (320 SE2d 808) (1984) (second degree vehicular homicide by violation of 

State Department of Transportation rules for oversize loads; indictment “based 

on appellant’s gross negligence by operating an oversized vehicle without 

providing a front escort vehicle for the mobile home, in reckless and careless 

disregard for the safety of the traveling public”). 
38

act or omission will cause harm or endanger the safety of [another]

person,” in “gross deviation” from the standard of care which a 

reasonable person would exercise in the situation. On the other 

hand, OCGA § 16-2-1 defines “criminal negligence” as “an act or 

failure to act which demonstrates a willful, wanton, or reckless 

disregard for the safety of others who might be injured thereby.” The 

distinction between the two is found in the statutory requirements

in OCGA § 16-5-60 (b) that the person “consciously disregard[] a 

substantial and unjustifiable risk” that is a “gross deviation” from a 

reasonable standard of care. See Henderson v. Hames, 287 Ga. 534, 

538-539 (3) (697 SE2d 798) (2010) (construing virtually identical 

language in OCGA § 16-11-108, misuse of a firearm while hunting, 

as prescribing the mens rea of the offense, and holding Hames’

convictions void for failure of the indictment to allege that the 

defendant “consciously disregard[ed] a substantial and unjustifiable 

risk that his act or omission will cause harm to or endanger the 

safety of another person” although the indictment did allege a gross 

deviation from the standard of care). 
39

The Court of Appeals has also applied this analysis in cases 

involving a shooting death. In Nutt v. State, 159 Ga. App. 46 (282 

SE2d 696) (1981), the appellant contended that he was examining a 

pistol that the victim was offering for sale when he cocked it and 

then attempted to lower the hammer, and the pistol discharged. The 

appellant claimed an accidental shooting but was convicted of

unlawful act involuntary manslaughter, and enumerated as error 

the trial court’s refusal to charge on unlawful manner involuntary 

manslaughter. The Court of Appeals in its analysis contrasted

criminal (formerly “culpable”) negligence with the statutory offense 

of reckless conduct:

Our view of the evidence is that the victim’s death 

resulted from (1) accidental discharge of the pistol, if 

appellant’s testimony were to be believed, or (2) in the 

commission of an unlawful act, either pointing the pistol 

at the victim (Code Ann. § 26-2908) [now OCGA § 16-11-

102] or while consciously disregarding a substantial and 

unjustifiable risk (Code Ann. § 26-2910) [now OCGA § 16-

5-60 (b)], or (3) handling the pistol, a lawful act, without 

due caution and circumspection resulting in culpable 

negligence.
40

Id. at 47 (1).36 The Court of Appeals reversed the appellant’s 

conviction due to the trial court’s failure to instruct the jury on 

unlawful manner involuntary manslaughter under the last 

alternative. See id.; see also Chambers v. State, 205 Ga. App. 16, 19

(421 SE2d 88) (1992) (criminal negligence may be distinguished

from the statutory offense of reckless conduct because the latter 

requires that the appellant act while consciously disregarding “a 

substantial and unjustifiable risk” of harm in “gross deviation from 

the standard of care which a reasonable person would exercise in the 

situation”).37

 36 Because one judge on the panel concurred in the judgment only, Nutt

is “physical precedent only.” See Court of Appeals Rule 33.2 (a) (2). However, 

the reasoning of Nutt was relied upon by the Court of Appeals in Chambers v. 

State, 205 Ga. App. 16, 19 (421 SE2d 88) (1992), in which all members of the 

panel concurred. Moreover, while the Court of Appeals in Nutt omitted the 

second part of the mens rea required for statutory “reckless conduct” (that the 

disregard was a gross deviation from a reasonable standard of care), Chambers

correctly states the language of the Code section.

37 In Chambers, as in Nutt, the appellant contended that he attempted 

to lower the hammer on a loaded and cocked revolver to render the gun safe, 

but the gun accidentally discharged. See 205 Ga. App. at 17. The Court of 

Appeals rejected the appellant’s contention that he was entitled to a charge on 

unlawful act involuntary manslaughter based upon statutory reckless conduct, 

because “appellant’s statements indicate that he acted consciously to avoid the 

substantial risk of harm to himself” and the victim, “but that the manner in 

which he handled the revolver he received from [the victim] was without due 
41

This distinction explains those decisions which on first glance 

appear to conflate criminal negligence with statutory “reckless 

conduct,” such as State v. Springer, 297 Ga. 376 (774 SE2d 106) 

(2015), in which this Court stated: “Reckless conduct, in contrast [to 

aggravated assault], is an act of criminal negligence, rather than an 

intentional act, that causes bodily harm or endangers the bodily 

safety of another.” (Citations and punctuation omitted.) Id. at 379 

(1). The issue in Springer, however, was not the necessary elements 

of statutory “reckless conduct,” but whether convictions for 

aggravated assault and reckless conduct arising out of a shootout in 

a public parking lot were mutually exclusive; this Court concluded 

that they were not. See id. at 382 (1).38

Similarly, in Dunagan v. State, 269 Ga. 590 (502 SE2d 726) 

 

caution and circumspection, resulting in culpable negligence.” (Emphasis in 

original; citation and punctuation omitted.) 205 Ga. App. at 19. The court 

further concluded that the appellant would have been entitled to a charge on 

unlawful manner involuntary manslaughter under OCGA § 16-5-3 (b), but that 

he expressly disavowed requesting that instruction, and the failure to give it 

was not harmful as a matter of law. See 205 Ga. App. at 20; see also OCGA § 

5-5-24 (c).

38 Elsewhere in the opinion, Springer noted all the necessary elements of 

the statutory offense of reckless conduct. See 297 Ga. at 383 (3).
42

(1998), the Court did not address the elements of the statutory 

offense of reckless conduct in concluding that “criminal intent and 

criminal negligence are not interchangeable in those instances 

where the mental culpability of the actor is the essential element 

that distinguishes two separate crimes,” such as the offense of

aggravated assault. Id. at 592 (2) (a). Dunagan relied in part upon 

Lindsey v. State, 262 Ga. 665 (424 SE2d 616) (1993), in which the 

Court observed that “[r]eckless conduct is an act of criminal 

negligence, rather than an intentional act,” (citation omitted), id. at 

666 (2) (b), but in the context of determining that the appellant was 

not entitled to instructions on accident or involuntary manslaughter 

when he admitted that he deliberately fired his gun at the victims’

car and asserted the defense of justification by self-defense.39 As 

Hames, 287 Ga. at 538 (3), clearly holds in interpreting the almost 

identical language of OCGA § 16-11-108 (a), “consciously

 39 This is consistent with our decisions noting that a defendant who 

asserts justification by self-defense is not entitled to an additional instruction 

on involuntary manslaughter on the theory that he used excessive force in 

defending himself. See footnote 47 below.
43

disregarding a substantial and unjustifiable risk” and “gross 

deviation” from a reasonable standard of care are requirements of 

the reckless conduct statute and together constitute the mens rea

necessary to establish that crime, and our decisions in Springer, 

Dunagan, and Lindsey do not contradict that. 

Accordingly, we conclude that the General Assembly, in 

enacting the reckless conduct statute while retaining both grades of 

involuntary manslaughter, meant to preserve a distinction between 

criminal negligence as the mens rea element of the offense of 

unlawful manner involuntary manslaughter and the statutory 

offense of “reckless conduct,” and that it reaffirmed that decision in 

2004 by providing a statutory definition of “criminal negligence.”

(e) What constitutes a “lawful act” under OCGA § 16-5-3 (b).

“A ‘crime’ is a violation of a statute of this state in which there 

is a joint operation of an act or omission to act and intention or 

criminal negligence.” OCGA § 16-2-1 (a). Conversely, a lawful act is 

something that is not a crime within the meaning of the laws of this 

state. Whether a defendant is entitled to a jury instruction on a 
44

lawful act committed in an unlawful manner under OCGA § 16-5-3 

(b) depends upon the evidence presented at trial with respect to the 

defendant’s actions. If the evidence at trial shows without dispute 

that the fatal act was unlawful, the defendant is not entitled to such 

an instruction. And if the evidence shows without dispute that the 

fatal act constituted no crime at all (due to, for example, accident or 

self-defense), the defendant is likewise not entitled to an instruction 

on unlawful manner involuntary manslaughter. But if the evidence 

is in conflict as to whether the fatal act was unlawful or merely rose 

to the level of criminal negligence, the defendant is entitled, at least 

when he so requests, to have the jury instructed on the commission 

of a lawful act in an unlawful manner under OCGA § 16-5-3 (b). 

A review of selected cases on involuntary manslaughter

provides some guidance for determining whether there is slight

evidence of the commission of a lawful act in an unlawful manner to 

support an instruction on OCGA § 16-5-3 (b). For example, if the 

uncontradicted evidence shows that the defendant was not in lawful 

possession of the weapon that caused the victim’s death at the time 
45

the fatal injury was inflicted, no instruction on unlawful manner 

involuntary manslaughter is required. See Austin, 110 Ga. at 750

(“the particular grade” of involuntary manslaughter involved in that 

case – that is, unlawful act or unlawful manner – “would depend 

upon whether it was lawful or unlawful for the slayer to be in 

possession of a deadly weapon at the time and place of the killing”);

Flannigan, 136 Ga. at 133 (1) (lawful act for purpose of unlawful

manner involuntary manslaughter statute requires, at a minimum, 

that “the person [be] lawfully in possession of” the fatal weapon).40

See also Snell v. State, 306 Ga. App. 651, 654 (3) (703 SE2d 93) 

(2010) (using reasoning consistent with this Court’s analysis in 

Austin and Flannigan to reject appellant’s contention that he was 

entitled to an instruction on unlawful manner involuntary 

 40 In Flanigan, the appellant’s employer testified that the knife used to 

inflict the fatal injury belonged to the employer and was kept at his place of 

business, but that the appellant was “a trusted servant and occasionally 

carried the knife off with him.” 136 Ga. at 134. An instruction on unlawful 

manner involuntary manslaughter was required because some evidence at 

trial suggested that the appellant was merely engaging in “prankish sport” by 

wrestling with the victim over the knife, without being “sufficiently 

circumspect in guarding against the probable consequences of playing with a 

dangerous weapon.” Id. 
46

manslaughter, because even under his own version of the events, 

Snell conceded that his possession of a concealed weapon in the 

victim’s home at the time of the fatal shooting was a violation of the 

version of OCGA § 16-11-126 then in effect).41 

Another question in determining whether an instruction on 

unlawful manner involuntary manslaughter is warranted is 

whether there is slight evidence that the defendant’s handling of the 

weapon at the time the fatal injury to the victim was inflicted 

amounted to at least (and not necessarily more than) criminal 

negligence, in light of all the surrounding circumstances. Such 

evidence may include a showing of a deliberate but lawful act done 

in an unlawful (criminally negligent) manner, such as intentionally 

discharging a firearm with the professed intent of shooting a fox but 

without verifying his target in poor visibility, as in Drake, 221 Ga. 

 41 Snell was indicted for murder, felony murder, and aggravated assault, 

but convicted of unlawful act involuntary manslaughter as a lesser included 

offense of felony murder. See Snell, 306 Ga. App. at 651. The State’s witnesses 

testified that Snell deliberately shot the victim at point-blank range, while 

Snell contended that the shooting occurred when he accidentally dropped his 

pistol from his coat and attempted to grab it, causing it to discharge. See id. at 

652 (1). 
47

at 348 (2), or a box located too close to a person, as in Teasley v State, 

228 Ga. 107 (184 SE2d 179) (1971), with fatal consequences not

intended by the shooter. Such evidence also may include a showing 

that the defendant had no intention of discharging a firearm, but an 

inadvertent and fatal discharge occurred while the defendant was 

lawfully handling the firearm but in an unlawful, criminally 

negligent manner, as in Austin, 110 Ga. at 750, or Maloof v. State, 

139 Ga. App. 787 (229 SE2d 560) (1976).

Thus, determining whether there is slight evidence of the 

commission of a “lawful act” in an “unlawful manner” within the 

meaning of OCGA § 16-5-3 (b), to support a jury instruction on 

unlawful manner involuntary manslaughter, requires consideration 

of all the evidence of the defendant’s intent based on, among other 

things, the circumstances surrounding the fatal act in question. The 

cases make clear that, in considering whether an instruction on 

OCGA § 16-5-3 (b) is appropriate, the trial court must consider only 

whether slight evidence supports the charge, and the ultimate

determination of whether the defendant acted lawfully but with 
48

criminal negligence is for the jury under proper instruction.

(f) Application in firearm cases.

As the foregoing discussion demonstrates, here the trial court 

erred when it ruled as a matter of law that a jury should never be 

instructed on unlawful manner involuntary manslaughter in a

shooting death case. In its order denying McIver’s motion for new 

trial, the trial court cited Manzano in support of its refusal to give 

the requested charge. While the trial court did not quote the 

language it relied upon, that decision states broadly that 

“[a] defendant who handles a gun in such a way as to 

accidentally cause the death of another human being, 

albeit without any intention to do so, has necessarily 

committed the misdemeanor of reckless conduct. . . . 

[Cit.]” (Emphasis supplied.) Cook v. State, 249 Ga. 709, 

712 (4) (292 SE2d 844) (1982). See also Reed v. State, 279 

Ga. 81, 85 (7) (610 SE2d 35) (2005).

Manzano, 282 Ga. at 559 (3) (a). The same language is relied upon 

in Cook and Reed, and appears to have originated in an expansive 

interpretation of language used in Raines v. State, 247 Ga. 504, 507

(3) (277 SE2d 47) (1981). But in each of those cases, the 

uncontradicted evidence as outlined in the opinion showed that the 
49

appellant committed an unlawful act that caused the death of the 

victim, thus taking his conduct outside the scope of unlawful manner

involuntary manslaughter.

In Manzano, unlawful manner involuntary manslaughter was 

not even addressed. Manzano testified that he intentionally pressed 

his pistol to his wife’s head and pulled the trigger, but that he and 

his wife were only engaging in “horseplay” because both mistakenly 

believed that the pistol was unloaded. See 282 Ga. at 557. Convicted 

of felony murder, Manzano appealed, asserting that the trial court 

should have given his requested instructions on unlawful act

involuntary manslaughter with the alternative predicate 

misdemeanor offenses of pointing a pistol at another and reckless 

conduct. This Court agreed and reversed with respect to the 

predicate act of pointing a pistol at another, see id. at 558-559 (2), 

also noting that the trial court erred in refusing to instruct on 

unlawful act involuntary manslaughter with reckless conduct as the 

predicate offense. See id. at 559 (3) (a).

Similarly, the cases cited in Manzano involved conduct in 
50

handling a firearm amounting at least to the statutory offense of 

reckless conduct. For example, in Reed, the appellant shot his 

girlfriend in the head, killing her, while he was driving a car and 

she was riding in the front passenger seat. Reed’s defense at trial 

was accident, and the jury was charged on that issue. Convicted of 

murder, Reed appealed, asserting that he was entitled to a charge 

on unlawful manner involuntary manslaughter. However, the 

evidence as recited in the opinion showed that “Reed’s admitted 

conduct was not a lawful act.” 279 Ga. at 86 (7). He intentionally 

produced and displayed a loaded firearm with his finger on the 

trigger in close proximity to the victim, and his attention was 

diverted from the location of the muzzle because he was “watching 

the road trying to drive.” Id. Moreover, the State presented 

uncontradicted testimony that the gun’s trigger was pulled twice.

See id. at 82.

Reed, like Manzano, quotes the language in Cook that “a 

defendant who handles a gun in such a way as to accidentally cause 

the death of another human being . . . has necessarily committed the 
51

misdemeanor of reckless conduct,” 249 Ga. at 712 (4). But in Cook, 

even according to Cook’s testimony at trial, he retrieved a pistol 

during an argument with the victim, the mother of his child; he 

turned towards her; and “the gun accidentally went off,” striking the

victim in the forehead. 249 Ga. at 710. The opinion notes no 

contradiction to the medical examiner’s testimony that “the gun was 

no more than several inches away from the victim’s head when the 

fatal shot was fired.” Id. Cook’s deliberately bringing a loaded gun 

into close proximity to the victim’s head during an argument 

constituted conscious disregard of a substantial and unjustifiable

risk that he would cause harm or endanger the safety of the victim, 

and the disregard constituted a gross deviation from a reasonable 

standard of care, establishing the statutory offense of reckless

conduct, and thus was not a lawful act. See id. at 712 (4). See also 

McDonald v. State, 224 Ga. App. 411, 413 (481 SE2d 1) (1997) (the 

defendant’s deliberately grabbing his wife by the arm during an 

argument and firing a revolver next to her head was sufficient to 

support his conviction for reckless conduct under OCGA § 16-5-60 
52

(b)).

In Cook, this Court cited two cases in support of its statement: 

Raines and Ranger v. State, 249 Ga. 315 (4) (290 SE2d 63) (1982).42 

In Raines, the appellant was convicted of murder after he shot his 

wife three times with a revolver during a domestic quarrel, killing 

her.43 Raines, a double amputee paralyzed from the waist down, 

maintained that the revolver inadvertently discharged when he lost 

his balance because he was not wearing his prosthetic device. See 

247 Ga. at 505.44 The Court rejected Raines’ contention that the trial 

court should have instructed the jury on both unlawful act and 

 42 In Ranger, the appellant was convicted of murder of his pregnant 

girlfriend and her child, who was born alive but died shortly afterwards. The 

defense called no witnesses, and there was no evidence of how the shooting 

occurred. Ranger asserted as error the trial court’s refusal to charge on 

unlawful manner involuntary manslaughter, and in its brief treatment of this 

enumeration of error, this Court simply observed, “There is no evidence here 

that Helena Carter’s death, or her child’s, was caused by commission of a 

lawful act in an unlawful manner,” and cited Raines. Ranger, 249 Ga. at 320 

(4).

43 The Raines court was sharply divided, with Chief Justice Jordan and 

Justices Hill and Marshall dissenting as to the reversal on the voluntary 

manslaughter charge in Division 1, while Justices Undercofler and Smith 

dissented as to Divisions 2 and 3. The opinion was issued per curiam. 44 Raines’ doctor, asked what Raines’ balance would be like without the 

prosthesis, testified, “Well, categorically it would be awkward to say the least.” 

247 Ga. at 504 n.1.
53

unlawful manner involuntary manslaughter. See id. at 507 (3).45

With respect to unlawful act involuntary manslaughter, Raines 

claimed that he did not intend to shoot his wife and that the jury 

could have found that he did so while committing the misdemeanor 

of pointing a pistol at another. The Court rejected Raines’ contention 

with respect to unlawful act involuntary manslaughter, concluding 

that the evidence showed that, even if Raines’ wife had not died,

Raines committed aggravated battery, a felony, by shooting and 

wounding his wife three times, id. at 507 (3), and pointing out that, 

in the case relied upon by Raines, only a single shot was fired. See 

id. at 507 n.4 (2).46

With respect to unlawful manner involuntary manslaughter, 

Raines contended that his “lawful act” occurred earlier in the 

 45 The Court reversed, however, based upon the trial court’s failure to 

instruct the jury on voluntary manslaughter by reason of “serious provocation”

under former Ga. Code Ann. § 26-1102, now OCGA § 16-5-2, due to the victim’s 

taunting of Raines with her adultery and his disability. See 247 Ga. at 506 (1). 

But because of the possibility of the issue arising on retrial, we also considered

Raines’ contentions with regard to instructions on both grades of involuntary 

manslaughter.

46 Despite the physical evidence of his wife’s wounds and three 

discharged shells found at the scene, Raines maintained that the gun only 

“fired twice.” 247 Ga. at 505. 
54

evening, when, he testified, he retrieved his revolver from under a 

mattress and “walked on his hands” to the back door because he 

“thought he heard a noise outside.” Id. at 504. Thereafter, he found 

a letter from his wife’s boyfriend in her purse, returned to the 

bedroom and confronted her about the letter, and she began to taunt 

him with his disability and her infidelities. It was during the course 

of this subsequent quarrel, he claimed, that he lost his balance while 

attempting to lie down on the bed, fell down, and the gun “went off.”

Id. at 505. The Court concluded that the evidence, including Raines’

own testimony and argument, showed that he was not engaged in a 

lawful act at the time of the shooting. Holding a loaded gun while 

involved in an argument and attempting to move around, knowing 

that one is both paralyzed from the waist down and dependent upon 

a prosthesis for balance, can be fairly characterized as a conscious 

disregard of a substantial and unjustifiable risk of harm to another 

that constitutes a gross deviation from a reasonable standard of 

care, thereby fulfilling all the elements of the statutory offense of 

reckless conduct, then Ga. Code Ann. § 26-2910. See id. at 507 (3) 
55

and n.5.

The State also relies upon Ward v. State, 252 Ga. 85 (311 SE2d 

449) (1984). There, the victim was told to come to Ward’s trailer 

regarding a debt he owed to Ward. Ward testified that the victim 

offered drugs in partial payment of the debt, but the owner of those 

drugs, Whitlock, objected and put his hand in his back pocket. See 

id. at 87. Ward retrieved a rifle, cocked it, and told Whitlock to take 

his hand out of his pocket and leave; at that point, the victim 

“started up from the bed,” Ward “jumped backwards” and hit a piece 

of furniture, and “the gun went off.” Id. The jury was instructed on 

accident and justification by self-defense. The Court rejected Ward’s 

contention that the trial court erred in refusing his request to charge 

on unlawful manner involuntary manslaughter, noting that Ward’s 

conduct in handling the rifle “consciously disregard[ed] a 

substantial and unjustifiable risk that the act [would] cause harm 

or endanger the safety of another” and constituted the offense of 

reckless conduct, citing OCGA § 16-5-60 (now OCGA § 16-5-60 (b))
56

and Raines. Ward, 252 Ga. at 88 (a).47

A close reading of these decisions shows that the expansive 

language used in Cook, Reed, and Manzano, derived from but not 

quoting the decision in Raines, fails to take into account the context 

in which it originated and was applied. In Cook, Reed, and Manzano,

the undisputed evidence established that the appellant acted with 

conscious disregard of a substantial and unjustifiable risk of harm, 

constituting a gross deviation from a reasonable standard of care –

the elements of statutory reckless conduct under OCGA § 16-5-60 

 47 In Ward, we failed to mention the other component of the mens rea 

required for statutory reckless conduct, namely, gross deviation from a 

reasonable standard of care. Ward also relies upon Crawford v. State, 245 Ga. 

89 (263 SE2d 131) (1980), and Saylors v. State, 251 Ga. 735 (309 SE2d 796) 

(1983). The latter two decisions are inapplicable to the case before us, because 

they hold that a defendant asserting justification by self-defense is not entitled 

to an additional instruction on involuntary manslaughter under either 

subsection of OCGA § 16-5-3 on the theory that the defendant used excessive 

force in self-defense. See Crawford, 245 Ga. at 92 (3); Saylors, 251 Ga. at 737 

(3); see also Harris v. State, 272 Ga. 455, 456-457 (3) (532 SE2d 76) (2000) 

(“Because appellant conceded that he shot at the victims intentionally, albeit 

in self-defense, a charge on the lesser offense of involuntary manslaughter, 

which requires a lack of intent, was not warranted.” (Citations and footnote 

omitted.)). In Raines, the Court noted that Crawford is not controlling when a

defendant claims accident and not self-defense. Raines, 247 Ga. at 506 (2). See 

also Chambers, 205 Ga. App. at 19 (noting that Willis v. State, 258 Ga. 477, 

477-478 (1) (371 SE2d 376) (1988), citing Saylors and Crawford, “does not hold 

that OCGA § 16-5-3 (b) is inapplicable any time the victim is killed by the 

shooting of a gun”).
57

(b). An unlawful manner involuntary manslaughter charge was not 

requested in Manzano, and in Cook and Reed this Court concluded 

that the trial court correctly refused a charge on OCGA § 16-5-3 (b)

because slight evidence did not support such a charge. But none of 

these decisions supports the proposition that any handling of a 

firearm resulting in an unintended death always constitutes at least 

the statutory offense of reckless conduct and therefore forecloses an 

instruction on unlawful manner involuntary manslaughter. 

We accordingly disapprove the statement in Cook, Reed, and 

Manzano that “[a] defendant who handles a gun in such a way as to 

accidentally cause the death of another human being, albeit without 

any intention to do so, has necessarily committed the misdemeanor 

of reckless conduct,” to the extent it suggests that an instruction on 

unlawful manner involuntary manslaughter is never appropriate in 

a case involving a fatal shooting.48 Under the specific circumstances

outlined in those decisions, a jury instruction on unlawful manner

 48 We disapprove only this statement, and express no opinion regarding 

whether these cases were correctly decided.
58

involuntary manslaughter was not appropriate. But when there is

slight evidence, even if in dispute, that the defendant caused the 

death of another person in the commission of a lawful act but in a 

merely criminally negligent manner, a charge on unlawful manner

involuntary manslaughter is supported.

The Court of Appeals reached a similar conclusion in Allison v. 

State, 288 Ga. App. 482, 484-485 (1) (654 SE2d 628) (2007), an 

appeal of a conviction for reckless conduct under OCGA § 16-5-60 

(b). The appellant went to a friend’s apartment to retrieve a bag of 

clothing. He had a pistol in the bag, and was checking the gun, which 

was pointed down, when it went off. The bullet traveled through a 

wall into an adjacent apartment, where it ricocheted off the floor and 

a metal door before striking a child in the head, causing serious 

injury. There was no evidence that the appellant knew the gun was 

loaded, or that he intentionally fired it. See id. at 482 (1). The Court 

of Appeals reversed the conviction, concluding that the evidence was 

insufficient because it did not establish that the appellant handled 

the firearm in a manner creating “a ‘substantial and unjustifiable 
59

risk’ that he would endanger the safety of another person.” Id. at 483

(quoting OCGA § 16-5-60 (b)). In so deciding, the Court of Appeals 

concluded that the language in Manzano, Reed, and Cook was not 

intended to “transform the crime of reckless conduct into a strict 

liability crime” whenever a firearm is involved, and that “[t]he words 

‘in such a way’ should not be interpreted to mean any and all types 

of gun handling; instead, they should be interpreted to track” the 

mens rea language in OCGA § 16-5-60 (b). Allison, 288 Ga. App. at 

484-485. We agree that such a construction is necessary in order to 

avoid rendering OCGA § 16-5-3 (b) meaningless in every case 

involving a shooting death.

This interpretation of Raines and its progeny is also consistent 

with the principle that a charge on involuntary manslaughter –

including unlawful act involuntary manslaughter under OCGA § 16-

5-3 (a) – is not authorized when the undisputed evidence

demonstrates that the defendant acted intentionally in harming the 

victim. See, e.g., Cheeves v. State, 306 Ga. 446, 447-448 (2) (831 SE2d 

829) (2019) (instruction on unlawful act involuntary manslaughter 
60

not required when appellant pointed gun directly at victim and shot 

victim multiple times); Harris v. State, 257 Ga. 385, 386 (1) (359 

SE2d 675) (1987) (trial court properly refused to charge on unlawful 

act involuntary manslaughter when appellant repeatedly stabbed 

victim and threatened him); Conner v. State, 251 Ga. 113, 116 (2) (c) 

(303 SE2d 266) (1983) (appellant not entitled to instruction on 

unlawful act involuntary manslaughter when victim was beaten 

severely and “the number of wounds inflicted leaves no doubt on the 

question of intent or voluntariness” (citation and punctuation 

omitted)).49

Once these decisions are removed from consideration, however,

 49 We also disapprove the bench note accompanying the Georgia pattern 

jury instruction on involuntary manslaughter to the extent it suggests that “‘a 

lawful act committed in an unlawful manner’ is often going to be equivalent to 

reckless conduct (see [OCGA] § 16-5-60 (b)), a misdemeanor which would 

support the charge of felony involuntary manslaughter,” citing Kellam v. State, 

298 Ga. 520, 523 (2) (783 SE2d 117) (2016), and Harmon v. State, 259 Ga. 846, 

848 (4) (b) (388 SE2d 689) (1990). Georgia Suggested Pattern Jury 

Instructions, Vol. II: Criminal Cases § 2.10.45 (4th ed. 2007, rev. 2021) 

(Involuntary Manslaughter (Misdemeanor)). In the two cases cited by the 

bench note, this Court held that the severe injuries to the victims could not 

have resulted from any lawful act. And, as discussed above, statutory reckless 

conduct is an “unlawful act” and thus never equivalent to a “lawful act 

committed in an unlawful manner.” 
61

a group of cases remains in which the evidence, even if slight, would 

allow a jury to find unlawful manner involuntary manslaughter

because the act resulting in the victim’s death was not intentional

or unlawful in itself, and the defendant under the circumstances 

acted only in a criminally negligent manner rather than in violation 

of all the elements of the reckless conduct statute. And in such cases, 

an instruction on OCGA § 16-5-3 (b) is appropriate. 

For example, in Teasley, during a chaotic Christmas Eve 

encounter between Teasley, his wife, his girlfriend, and the police, 

the girlfriend was struck and killed by a bullet fired from Teasley’s 

pistol. See 228 Ga. at 109. At some point, Teasley shot at the lock of 

a metal box, located a few feet away from where the victim was lying

on the floor, in an apparent attempt to access its contents. See id. A 

pathologist’s testimony did not exclude the possibility that the fatal 

bullet ricocheted from the metal box, although he considered it 

unlikely. See id.

Teasley was convicted of malice murder and appealed, 

complaining of error in the refusal of several of his requests to 
62

charge. We reversed, concluding that the trial court erred in failing 

to give several jury instructions, including on unlawful manner

involuntary manslaughter, observing that while the evidence was 

sufficient to support the jury’s verdict of murder, it was also 

sufficient to raise a jury issue as to unlawful manner involuntary 

manslaughter: 

From the circumstances of the homicide as referred to 

above, the evidence was ample to raise an issue for the 

jury’s consideration as to the defense of [involuntary]

manslaughter. It was sufficient to authorize the jury to 

consider whether the victim’s death was a result of the 

appellant’s lawfully firing the pistol in an unlawful 

manner, in close proximity to the victim so as to cause the 

bullet to richochet [sic] and strike her.

Id. at 110-111 (4).50 The evidence also appears to have been sufficient 

for the jury to have found that the appellant’s act of intentionally 

firing a loaded pistol at a box only a few feet away from the victim 

amounted to statutory reckless conduct and thus the offense of 

unlawful act involuntary manslaughter under OCGA § 16-5-3 (a), 

 50 This Court also concluded that the evidence authorized an instruction 

on misfortune or accident under former Ga. Code Ann. § 26-602, now OCGA § 

16-2-2, see 228 Ga. at 110 (3), as well as two requested instructions with 

respect to the defense of insanity. See id. at 111-112 (5).
63

but it does not appear from the opinion that Teasley requested an 

instruction on unlawful act involuntary manslaughter or 

enumerated as error the refusal to give such an instruction.

Similarly, in Maloof, the appellant was indicted for murder but 

convicted of unlawful act involuntary manslaughter in the shooting 

death of his wife. See 139 Ga. App. at 787 (syllabus by the Court).

At trial, he testified that, during a domestic quarrel, he was 

attempting to lower the hammer of a handgun after he noticed it 

was cocked. While he did so, he pointed the gun upwards, “towards 

the crease in the wall and ceiling,” and while he was not looking at 

his wife she “tried to get past him” and the handgun discharged, 

killing her. Relying on Teasley, the Court of Appeals reversed, 

concluding that the trial court erred in failing to instruct the jury on 

unlawful manner involuntary manslaughter because the evidence

authorized the jury to consider whether the appellant was lawfully 

using the pistol, but “in an unlawful manner, in close proximity to 
64

the victim.” (Citation and punctuation omitted.) Id. at 788.51

The trial court therefore erred in relying upon Manzano to 

conclude that unlawful manner involuntary manslaughter is never 

applicable in a shooting death case and in refusing McIver’s 

requested instruction on unlawful manner involuntary 

manslaughter on that basis.

(g) Evidence supporting the requested charge.

We must next consider whether slight evidence supported 

McIver’s request to instruct the jury on unlawful manner

involuntary manslaughter. 

To authorize a requested jury instruction, there need only 

be slight evidence to support the theory of the charge, and 

the necessary evidence may be presented by the State, the 

defendant, or both. Whether the evidence presented is 

sufficient to authorize the giving of a charge is a question 

of law.

(Citations and punctuation omitted.) Merritt v. State, 311 Ga. 875, 

889 (7) (860 SE2d 455) (2021). “The evidence necessary to justify a 

 51 On retrial, the appellant was convicted of unlawful manner

involuntary manslaughter, and that conviction was affirmed by the Court of 

Appeals in Maloof v. State, 145 Ga. App. 408 (243 SE2d 634) (1978).
65

jury charge need only be enough to enable the trier of fact to carry 

on a legitimate process of reasoning.” (Citations and punctuation 

omitted.) Calmer v. State, 309 Ga. 368, 370 (2) (846 SE2d 40) (2020). 

And “[i]n determining whether a trial court erred in giving jury 

instructions, we read and consider the instructions as a whole.”

(Citation omitted.) Stafford v. State, 312 Ga. 811, 820 (4) (865 SE2d 

116) (2021).

Here, the evidence presented at trial provided some support for 

the requested instruction. Evidence was presented that, at the time 

of the shooting, McIver was asleep in the back seat of a moving car

with the loaded revolver on his lap in a plastic grocery bag, and that 

he was startled awake by the doors locking, someone speaking, or 

the vehicle going over a bump in the road. In addition, expert 

testimony was presented that at the time the revolver discharged, 

McIver was not holding it upright in a raised position, but rather 

that the gun was lying sideways and resting on his lap. Some 

evidence was also presented that McIver suffered from a sleeprelated disorder that could produce involuntary movements when he 
66

was awakened or startled.

From this evidence, the jury could have concluded that the 

revolver was not deliberately or intentionally fired, but rather, as 

McIver suggests, discharged as a result of his being startled awake,

reflexively or involuntarily clutching at the bag holding the firearm, 

and inadvertently contacting the trigger. While the jury could have 

found from the evidence that the shooting that killed Diane was an 

accident under OCGA § 16-2-2, the jury also could have concluded 

that, while it was not unlawful for McIver merely to have a loaded 

revolver in his lap in the back seat of the vehicle, he was criminally 

negligent in his manner of handling it by keeping it in his lap 

unsecured, without a holster and in a plastic bag, in a moving 

vehicle with two other people in the front seats, and by allowing 

himself to doze off while the gun was so situated.52 This is at least 

 52 The State asserted at oral argument that not even slight evidence was 

presented that the gun was handled in an unlawful manner. However, as 

McIver points out, the State argued at trial that McIver was unsafe in handling 

the gun by not giving the gun back to his wife or placing it on the floor or on 

the seat beside him, by failing to return the gun to its available holster, and by 

failing to exercise “muzzle awareness” by keeping the gun loose in a plastic 

bag, thus placing Diane “in that kind of danger.”
67

slight evidence that the fatal discharge of the firearm was a lawful 

act but performed in a criminally negligent manner, but not

necessarily statutory reckless conduct – an act performed in 

conscious disregard of a substantial and unjustifiable risk of harm 

to another amounting to a gross deviation from a reasonable 

standard of care.53

We need not decide whether we believe that McIver’s conduct 

was only criminally negligent in manner, or instead amounted to 

statutory reckless conduct under OCGA § 16-5-60 (b).

[W]e must decide only whether there was slight evidence 

to support the jury instruction. . . . And if there was slight 

evidence supporting the instruction – and there was – it 

is irrelevant whether we find that slight evidence 

persuasive in the face of contrary evidence; that question 

was reserved exclusively for the jury.

Daly v. Berryhill, 308 Ga. 831, 834 (843 SE2d 879) (2020). The 

evidence at trial constituted the slight evidence necessary to support

an instruction on unlawful manner involuntary manslaughter, and 

 53 A jury, of course, could also conclude that McIver was guilty of the 

statutory offense of reckless conduct, and hence of unlawful act involuntary 

manslaughter.
68

we therefore conclude that the trial court erred in refusing to give 

McIver’s requested instruction on this point.

(h) Determining harmful error.

Having determined that the trial court erred, we next must 

consider whether the error was harmful so as to require reversal of 

McIver’s convictions. “The test for determining whether a 

nonconstitutional instructional error was harmless is whether it is 

highly probable that the error did not contribute to the verdict.”

(Citations and punctuation omitted). Jones v. State, 310 Ga. 886, 889

(2) (855 SE2d 573) (2021). And in determining whether such an error 

is harmless, we assess the evidence from the viewpoint of reasonable 

jurors, not in the light most favorable to the verdicts. See Thompson 

v. State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899) (2017).

Here, we cannot say that the error was harmless, because the 

evidence of McIver’s guilt of aggravated assault and felony murder 

was not overwhelming or even strong, and the evidence of criminal 

intent was disputed and circumstantial. Indeed, the State’s evidence 

of intent was weak, as no witness testified to any disagreement or 
69

quarrel between McIver and Diane, and many witnesses testified 

that they were very much in love. The State’s evidence largely 

focused on a possible financial motive for McIver to murder Diane, 

but as McIver notes, the evidence connecting that alleged motive to 

any actions that McIver took to intentionally kill his wife was thin. 

The State’s murder theory – that McIver intentionally shot his wife 

in the back in a moving car, with her best friend as a witness, 

through a thin plastic bag and through the back of a seat that could 

have diverted the bullet, while aiming so low as to potentially miss 

any vital organs – is supported only by some circumstantial evidence 

and conjecture; to the contrary, the circumstances of the shooting 

suggest a lack of any preparation or planning. Indeed, the only 

witness to the fatal shooting testified that shortly before asking for 

his gun, McIver had fallen asleep in the back seat and that he 

appeared to have fallen asleep again after that, an unlikely action 

for someone intending to commit a murder.

Perhaps aware of the weakness of the State’s case, the 

prosecutor argued to the jury, without citing any particular 
70

evidence, that McIver must have planned to murder Diane earlier, 

at the ranch, but was prevented from doing so by the presence of 

Carter, and was so committed to killing Diane that day that he 

“ha[d] to go to maybe a Plan B” in the vehicle. But, once again, the 

evidence presented by the State provides little if any support for this 

theory. If McIver intended to fatally shoot Diane, why would he do 

it in the presence of Carter, and why would he do it in midtown 

Atlanta, within a few miles of several major hospitals, instead of on 

a rural interstate, far from any medical aid? The prosecutor argued 

that McIver put the gun in a plastic bag to avoid DNA or gunshot 

residue, even though Diane was the one who handed him the gun 

already in the plastic bag, and given the circumstances there could 

be little doubt that he was the person who discharged the gun. On 

the other hand, the State’s evidence that McIver gave varying

statements to hospital personnel, the police, and others describing 

how the incident occurred, and that some hospital personnel thought 

that McIver was not grieving “appropriately” lend some support to 

the State’s murder theory, but not much. 
71

As McIver also points out, the refusal of his request to charge

the jury on unlawful manner involuntary manslaughter “deprived 

[him] of the benefit of one of [his] defense theories – maybe the 

stronger one – and thus deprived [him] of the chance for the jury to 

convict [him] of [a] misdemeanor[] rather than felonies.” Shah v. 

State, 300 Ga. 14, 22 (2) (b) (793 SE2d 81) (2016). In Shah, the 

appellant was found guilty of felony murder and two counts of firstdegree cruelty to children in connection with the death of her infant 

daughter due to dehydration and probable hyperthermia. The 

State’s medical examiner had concluded that the death was 

accidental. See id. at 16 (1) (b). The trial court refused the 

appellant’s request to charge the jury on the misdemeanor of 

statutory reckless conduct as a lesser included offense of the felonies 

of first-degree cruelty to children under OCGA § 16-5-70 (a) and (b).

Shah’s counsel argued that the appellant’s conduct was not 

intentional, and asserted the theory of accident as a defense, but also 

conceded in his opening statement that the jury might find that her 

conduct had been “reckless.” Id. at 22. The trial court refused to 
72

charge the jury on statutory reckless conduct, thereby preventing

counsel from including this alternative and likely stronger theory in 

his closing argument. 

We noted that Shah’s counsel’s seeking to present two 

alternative theories was “not an unreasonable strategy” under the 

circumstances of that case, noting that “criminal defendants often 

offer dissonant defense theories, particularly with regard to levels of 

criminal intent when the result of the defendant’s actions was 

undeniably tragic and the jury may be inclined against finding the 

defendant entirely innocent.” Id. at 22 (2) (b). Concluding that the 

appellant was deprived of an important defense by the trial court’s 

refusal to give the requested charge, that some evidence supported 

the lesser included offense, and that the evidence of the greater 

offense was not overwhelming, we held that the error was harmful

and reversed the convictions. See id. at 23 (2) (b).

Here, as in Shah, McIver’s main defense theory at the outset

was accident – lack of any criminal mens rea – which was the only

theory set forth in his counsel’s opening statement. In closing, 
73

McIver again asserted the accident theory, and while his counsel 

mentioned statutory reckless conduct as a basis for finding unlawful 

act involuntary manslaughter, it was only to argue that the facts did 

not meet the statutory definition of that felony offense.54 But counsel 

was prevented from arguing the theory of unlawful manner

involuntary manslaughter based on criminal negligence by the trial 

court’s refusal to give his requested charge on that theory. And this 

theory was important to McIver, given that his age at the time of 

trial – almost 71 – deterred his counsel from suggesting to the jury 

any felony outcome – including unlawful act involuntary 

manslaughter – as he might not live long enough to serve even a tenyear sentence.

The jury could have concluded – as McIver argued – that the 

evidence presented here did not meet the statutory definition of 

reckless conduct as correctly given by the trial court, involving as it 

does both conscious disregard of a substantial and unjustifiable risk

 54 The State, on the other hand, mentioned reckless conduct in closing 

only to argue that it had proved McIver’s actions were intentional, not reckless.
74

of harm to another and a gross deviation from a reasonable standard 

of care. But the jury was given no alternative instruction regarding

criminal negligence, a mental state more culpable than pure 

accident and arguably more consistent with the evidence at trial. 

This foreclosed the possibility of a finding that McIver was 

criminally negligent but did not meet the definition of reckless 

conduct, which would have enabled the jury to find that McIver was 

not entirely guiltless, but guilty only of unlawful manner 

involuntary manslaughter.

The trial court’s refusal to give the requested instruction on 

unlawful manner involuntary manslaughter deprived McIver of the 

opportunity to argue an alternative theory of defense that may have 

been stronger than those permitted by the trial court, and to offer to 

the jury an opportunity to convict him of a lesser offense without 

entirely exonerating him from criminal responsibility for a tragic 

and deadly event.

Moreover, considering the jury instructions as a whole, see 

Stafford, 312 Ga. at 820 (4), the trial court compounded its error in 
75

omitting a charge on unlawful manner involuntary manslaughter in 

two ways. First, the court instructed the jury that accident involves 

“no criminally negligent behavior such as reckless conduct.” Second, 

it instructed the jury, “[I]f you don’t find beyond a reasonable doubt 

that his conduct constituted reckless conduct, then you are dealing 

with an unintentional situation along the lines of accident.” More 

than mere omission, these instructions expressly foreclosed any 

consideration of unlawful manner involuntary manslaughter, even 

though there was evidence to support a finding of mere criminal 

negligence.

The effect of the omission of an instruction on unlawful manner

involuntary manslaughter is suggested by the jury’s questions to the 

trial court during its lengthy deliberations, repeatedly expressing 

concerns regarding the question of McIver’s intent and ultimately

stating after four-and-a-half days of deliberations that it was 

deadlocked on that very question.55 See Davidson v. State, 304 Ga. 

 55 During its deliberations, the jury sent out numerous questions to the 

trial court, beginning with, “If not guilty on 1 through 4 [malice murder, felony 
76

460, 471 (4) (819 SE2d 452) (2018) (concluding constitutional error 

was not harmless, in part because the jury asked for recharge on 

issues implicated by error); Bracewell v. State, 243 Ga. App. 792, 796 

(2) (534 SE2d 494) (2000) (concluding error in charge was harmful, 

in part because the jury asked twice for recharges and “[c]larity in 

this portion of the charge was critical to an issue of defense” (citation 

and punctuation omitted)). Indeed, the jury ultimately found McIver

not guilty of malice murder.

The State asserts that the error is harmless because the jury 

rejected the lesser included offense of unlawful act involuntary 

manslaughter in finding McIver guilty of felony murder based on 

aggravated assault, which means that the jury found that McIver 

 

murder, aggravated assault, and possession of a firearm during the 

commission of a felony], can number 5 [influencing a witness] be guilty?” then 

asking to view the vehicle and to watch the video of McIver’s police interview 

again. After further deliberations, the jury asked, “How does intent affect the 

charge of aggravated assault with a deadly weapon?” and, “For an assault to 

occur, does there need to be intent to cause violent injury or just an action that 

causes violent injury?” Then, on the fifth day of deliberations, the jury sent out 

a note to the trial court stating, “We don’t see a path to overcome our 

differences on the defendant’s intent related to charges 1, 2, 3, and 5.” Over 

McIver’s objection, the trial court delivered an Allen charge to the jury, and 

shortly thereafter the jury reached its verdicts.
77

intended to shoot Diane, thereby causing a violent injury, but did 

not intend to kill her, given that the jury acquitted him of malice 

murder. Even assuming that is a correct interpretation of what the 

jury’s verdicts signified, the jury reached its verdicts without a 

complete instruction on the grades of culpability between accident 

and felony murder, thus “depriv[ing] the jury of the necessary tools 

to evaluate the charges against [McIver] and to reach a verdict.”

Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861) (2019). This 

is particularly true in light of McIver’s desire to avoid a felony 

conviction arising out of statutory reckless conduct: his inability to 

argue criminal negligence as the basis for a misdemeanor conviction 

of unlawful manner involuntary manslaughter deprived him of the 

benefit of a strong theory of defense, and certainly the most 

advantageous theory short of an outright acquittal on the basis of 

accident. See Shah, 300 Ga. at 22 (2) (b). In light of all these 

circumstances, we cannot say it is highly probable that the trial 

court’s error in refusing the requested instruction did not contribute 

to the jury’s verdicts, and reversal therefore is required.
78

We note that, as a matter of constitutional due process, the 

evidence presented at trial and summarized above was, when 

viewed in the light most favorable to the verdicts, legally sufficient 

to authorize a rational jury to find McIver guilty beyond a 

reasonable doubt of the crimes for which he was convicted. See 

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

LE2d 560) (1979). Therefore, although we reverse McIver’s 

convictions for felony murder based on aggravated assault and 

possession of a firearm in the commission of a felony based on the 

instructional error, the State may choose to retry McIver on the 

counts as to which the jury returned a verdict of guilty as well as the 

lesser included offense of unlawful act involuntary manslaughter, as 

to which the jury did not return a verdict. See Doyle v. State, 307 Ga. 

609, 615 (2) n. 5 (837 SE2d 833) (2020).

3. Because we are reversing some of McIver’s convictions, we 

next consider those evidentiary issues that are likely to recur if the 
79

State elects to retry McIver.56 All these issues concern evidence 

admitted at trial that McIver contends was irrelevant, speculative, 

or prejudicial.

(a) OCGA § 24-4-401 defines relevant evidence as “evidence 

having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less 

probable than it would be without the evidence.”

Although this relevance standard is a liberal one, it is not 

meaningless or without boundaries. Any evidence that 

fails to meet this standard will be barred by OCGA § 24-

4-402 (“Rule 402”), which provides, without exception, 

that “[e]vidence which is not relevant shall not be 

admissible.” A trial court’s decision whether to admit or 

exclude evidence is reviewed on appeal for an abuse of 

discretion.

(Citations and punctuation omitted.) Martinez-Arias v. State, 313 

Ga. 276, 285 (3) (869 SE2d 501) (2022). 

Moreover,

 56 In addition to the instructional errors addressed in this opinion, 

McIver enumerated two other claims of trial court error, which involve the 

jury’s deliberations. These claims concern the interruption of deliberations to 

permit a second inspection of, and experiments with, the vehicle and firearm 

involved, and the giving of an Allen charge. These claimed errors are unlikely 

to recur if the State elects to retry McIver, so we do not address them.
80

relevant evidence may be excluded under OCGA § 24-4-

403 (“Rule 403”) “if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury or by considerations 

of undue delay, waste of time, or needless presentation of 

cumulative evidence.” The major function of Rule 403 is 

to exclude matter of scant or cumulative probative force, 

dragged in by the heels for the sake of its prejudicial 

effect.

(Citations and punctuation omitted.) Lofton v. State, 309 Ga. 349, 

355 (2) (b) (846 SE2d 57) (2020). And while relevance is a binary 

concept – evidence is either relevant or not – probative value is 

relative: 

Evidence is relevant if it has “any tendency” to prove or 

disprove a fact, whereas the probative value of evidence 

derives in large part from the extent to which the evidence 

tends to make the existence of a fact more or less 

probable. Generally speaking, the greater the tendency to 

make the existence of a fact more or less probable, the 

greater the probative value. And the extent to which 

evidence tends to make the existence of a fact more or less 

probable depends significantly on the quality of the 

evidence and the strength of its logical connection to the 

fact for which it is offered. Probative value also depends 

on the marginal worth of the evidence – how much it adds, 

in other words, to the other proof available to establish 

the fact for which it is offered. The stronger the other 

proof, the less the marginal value of the evidence in 

question. And probative value depends as well upon the 

need for the evidence. When the fact for which the 
81

evidence is offered is undisputed or not reasonably 

susceptible of dispute, the less the probative value of the 

evidence.

(Citations, punctuation and footnotes omitted; emphasis supplied.) 

Olds v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016). We 

consider each of McIver’s evidentiary contentions in turn.

(b) McIver complains of the State’s introduction of evidence of 

Diane’s supposed second will, which the trial court characterized as 

“powerful evidence of motive.” As noted above in footnote 6, the 

evidence that such a will existed was very slight, consisting of a 

statement allegedly made by Diane about two years before her death

referring to an unidentified document as “my new will.” No second 

will was ever found despite an intensive search;57 the McIvers’ estate 

planning attorneys knew of no such will; and no evidence was 

presented of the supposed will’s contents or whether its provisions 

were advantageous, disadvantageous, or neutral to McIver. 

Moreover, no evidence was presented that McIver knew of such a 

 57 The State executed search warrants at the offices of the McIvers’ 

attorneys, and an advertisement was placed in the legal organ of the county 

seeking any attorney who had drafted such a will.
82

will or its contents, or had access to it.

Yet the State argued that the mere existence of a supposed

second will, with no evidence of its provisions or of McIver’s 

knowledge of or access to it, was relevant to show that he had a 

financial motive to kill Diane and to show that when he shot her, he 

did so with the intent to kill or at least violently injure her. The State 

noted that the supposed second will theoretically could have left all 

Diane’s property to someone other than McIver, including her 

interest in the ranch property. But, as McIver points out, the 

supposed second will could not have affected the disposition of 

Diane’s interest in the ranch property, because the McIvers held the 

property as joint tenants with right of survivorship. See OCGA § 44-

6-190; see also Biggers v. Crook, 283 Ga. 50, 52-53 (1) (656 SE2d 835) 

(2008) (noting that OCGA § 44-6-190 (a) (3) provides for a “lifetime

transfer of all or a part” of a joint tenant’s interest. (Emphasis 

supplied.)).

Moreover, as to Diane’s other property, the State’s argument 

required the jury to make a series of increasingly speculative 
83

inferences: (1) that Diane executed or intended to execute a second 

will; (2) that the provisions of the will were disadvantageous to 

McIver in some way; (3) that McIver knew of the new will; (4) that 

McIver knew the contents of the new will; and (5) that McIver 

therefore had a motive to kill Diane to prevent her from executing 

the new will or, if she had already executed it, to kill her so that he 

could obtain and destroy all copies of the new will. Without any 

additional evidence, the chain of inferences between the evidence in 

question and any legally relevant point “is simply too long, dubious, 

[and] attenuated” to allow the evidence to be introduced. State v. 

Stephens, 310 Ga. 57, 60-61 (1) (849 SE2d 459) (2020) (affirming 

trial court’s exclusion of evidence requiring series of unproven 

inferences to connect defendant with murder weapon). See also 

Olds, 299 Ga. at 75 n.14 (2) (noting “‘the number of intermediate 

propositions between the item of evidence and the ultimate 

consequential fact that the item is offered to prove’” as tending to 

diminish probative value. (Citations omitted.)). Here the State’s

evidence arguably showed the possibility of a second will, and such 
84

a will might be relevant to motive if evidence of its provisions and 

McIver’s knowledge of its existence were shown. However, the State 

here did not offer evidence sufficient to “make the existence of any 

fact that is of consequence to the determination of the action more 

probable or less probable” under Rule 401. It was therefore

irrelevant and inadmissible, and the trial court abused its discretion 

in admitting it.

(c) McIver also complains of the State’s introduction of evidence 

regarding OCGA § 53-1-5, sometimes referred to as the “slayer 

statute,” which the trial court also characterized as “powerful 

evidence of motive.”58 Prosecution witnesses testified that the 

statute imposed a forfeiture on any person found guilty of 

“intentional” homicide, and would apply to Diane’s extant will and

 58 OCGA § 53-1-5 (a) provides:

An individual who feloniously and intentionally kills or conspires 

to kill or procures the killing of another individual forfeits the right 

to take an interest from the decedent’s estate and to serve as a 

personal representative or trustee of the decedent’s estate or any 

trust created by the decedent. For purposes of this Code section, 

the killing or conspiring to kill or procuring another to kill is 

felonious and intentional if the killing would constitute murder or 

felony murder or voluntary manslaughter under the laws of this 

state.
85

possibly to the joint tenancy of the ranch property. 

But the connection between this evidence and a motive for 

McIver’s alleged intent to kill or injure Diane is tenuous at best. As 

the trial court observed at the hearing on McIver’s motion for new 

trial, “It seems like it would cut against the financial motive,”

because it would prevent McIver from receiving any interest in

Diane’s estate and possibly the ranch property as well. Neither the 

Attorney General nor the District Attorney addresses this issue in 

their briefs, asserting in conclusory fashion that testimony 

regarding the slayer statute was evidence of motive and thus 

relevant.59 The State also fails to address why McIver, if he were 

trying to avoid the effect of the slayer statute while intentionally 

killing Diane for financial gain, would do so in circumstances where 

there could be no question that he shot Diane, in the presence of her

 59 Both the District Attorney and the Attorney General rely heavily upon 

the assertion that McIver invited testimony regarding the slayer statute in 

questioning a witness, and thus cannot complain of its introduction. McIver 

argues in reply that the witness’ answer was non-responsive and counsel 

interposed an objection. But we assume that this will not recur on any retrial.
86

best friend. Without more, this evidence was not relevant to 

demonstrate a motive for McIver to murder Diane or his intent to 

kill her, and it should have been excluded.60 

(d) McIver next complains that evidence of the cataloging of 

Diane’s possessions, as well as the auction of her jewelry, furs, and 

other items months after her death, was irrelevant to any issue in 

the case and should not have been admitted. The State argued at 

trial that this evidence showed that McIver had no sentimental 

attachment to Diane’s personal items, indicating that he did not love 

 60 McIver also asserts that the prejudicial effect of this evidence 

substantially outweighs any probative value under Rule 403, arguing 

strenuously that the State’s purpose in presenting evidence of the slayer 

statute was to convince the jury to return a verdict of guilty at least as to felony

murder. We agree. He points out that the witnesses testified, and the 

prosecutor emphasized, that a conviction for an intentional killing would 

prevent McIver from inheriting any portion of his wife’s estate. This evidence 

had an undue tendency to suggest that the jury should find McIver guilty of 

murder rather than involuntary manslaughter in order to punish him by 

barring him from inheriting Diane’s property, which would be an improper 

basis for decision. Thus, even if relevant, the at best minimal probative value 

of the evidence was substantially outweighed by the danger of unfair prejudice.

See Old Chief v. United States, 519 U. S. 172, 180 (B) (1) (117 SCt 644, 136

LE2d 574) (1997) (observing that evidence may create a danger of unfair 

prejudice when it has “the capacity . . . to lure the factfinder into declaring guilt 

on a ground different from proof specific to the offense charged” or has “an 

undue tendency to suggest decision on an improper basis, commonly, though 

not necessarily, an emotional one.” (Citations and punctuation omitted.)). So 

the evidence should have been excluded under Rule 403 as well.
87

her, only wished to obtain her money, and thus had a motive for 

killing her.

We agree that the evidence is relevant. The attorney for 

Diane’s estate explained at some length the manner in which the 

estate was administered, and his fairly extensive role in advising 

McIver, because he believed that McIver had never acted as an 

executor before. The attorney testified that one of an executor’s first 

duties is to locate all the assets of the estate, although several of 

Diane’s friends testified that the cataloging of her possessions made 

them uncomfortable. The attorney further explained that he, not 

McIver, suggested the sale of Diane’s personal property, because he 

reviewed the records of the estate and determined that there was 

not sufficient cash in the estate to satisfy the specific bequests listed 

in the will. For that reason, he advised McIver to sell Diane’s

clothing, jewelry, and furs to meet the immediate needs of the estate,

because those items were very stylish, expensive, one-of-a-kind 

items that would lose their value over time. McIver agreed with this 

recommendation, and the property was sold at auction.
88

As the State argues, this evidence was relevant to show a 

financial motive on McIver’s part in agreeing to an early sale of 

Diane’s property, because the cataloging and immediate sale of the 

property, while not directly providing monetary gain to him, would 

move the administration of the estate forward and thus contribute 

to his earlier receipt of the remaining estate assets.61 See Slakman 

v. State, 280 Ga. 837, 841, 842 (3) (632 SE2d 378) (2006) (evidence

of defendant’s participation in probate proceeding admissible as 

logically tending to show defendant’s “greed and his desire for 

financial gain from his wife’s death”). In addition, this evidence was

relevant to show McIver’s indifference to Diane’s memory, which 

would also go to motive.62 We therefore cannot say that the trial 

 61 Diane’s will provided that, after specific bequests of real and personal 

property to McIver and others, and the distribution of furnishings, art, 

“jewelry, clothing and other such personal effects” according to a list referenced 

by the will, the residue of the estate was to be placed in a trust for McIver’s 

benefit.

62 In his brief, McIver argues only that this evidence was not relevant 

and does not assert that it should have been excluded under Rule 403. In any 

event, while the probative value of this evidence was low, because of the 

attorney’s initiation of the sale, the lack of a direct benefit to McIver, and the 

small monetary amount involved compared to the overall value of the estate –

the State presented evidence that Diane’s estate was worth between $3.6 and 
89

court abused its discretion in ruling that this evidence was relevant.

(e) McIver also complains that the State improperly elicited 

testimony regarding the relative merits of Emory Hospital and 

Grady Hospital with regard to treating gunshot wounds and their 

distance from the site of the shooting, ostensibly to show that McIver 

intentionally directed Carter to drive to Emory in order to delay 

Diane’s treatment and increase the likelihood of her death. As noted 

above in footnote 4, the State acknowledged during oral argument 

in this Court that no evidence was presented at trial that McIver 

believed that Grady was better equipped than Emory to treat 

gunshot wounds or that he intentionally directed Carter to drive to 

Emory to avoid going to Grady. Accordingly, this evidence was not 

relevant and should have been excluded.

(f) We reach a different conclusion with regard to evidence of 

McIver’s demeanor at the hospital. McIver complains that the State 

elicited irrelevant testimony from hospital personnel that McIver

 

$4.6 million at her death, while the sale realized $67,848 – any prejudicial 

effect likewise seems small.
90

shed “no tears” when told that Diane had died, that he was very 

calm, and that he did not appear to be upset or distraught. From 

this, the State argued in closing that McIver “show[ed] none of the 

universal signs of grief.” The trial court denied McIver’s motion in 

limine to exclude this evidence and admitted it at trial over his 

objection. Evidence of a defendant’s “condition and demeanor” near 

the time of the alleged crimes generally is relevant and admissible, 

see Morgan v. State, 307 Ga. 889, 895 (3) (a) (838 SE2d 878) (2020),

including witness testimony regarding his or her “perception of [the 

defendant’s] demeanor at that time.” (Citations omitted.) Snipes v. 

State, 309 Ga. 785, 792 (3) (b) (i) (848 SE2d 417) (2020). McIver 

makes no argument that would take the challenged evidence outside 

the operation of this general principle. Accordingly, the trial court 

did not abuse its discretion in admitting this testimony about 

McIver’s demeanor at the hospital.

(g) Finally, McIver contends that the State used a “constant 

drumbeat of racial animus” to “inflame the passion of the jury,”

pointing both to evidence and argument by the State to support this 
91

contention.

First, a witness testified that McIver told him why he asked for 

his gun when Diane and Carter decided to take the Edgewood 

Avenue exit from the Downtown Connector: “He [i.e., McIver] was 

concerned because of the people that were around, homeless people, 

maybe they were carjackers. I didn’t know who they all were. Maybe 

they were Black Lives Matter protesters.” McIver asserts that the 

State brought one of the charges of influencing a witness – as to 

which the trial court granted a directed verdict of acquittal – for the 

sole purpose of getting this testimony admitted at trial by the 

witness in question, and that its probative value was substantially 

outweighed by the danger of unfair prejudice and thus should have 

been excluded under Rule 403.

Even putting aside the relevance of this testimony to the 

witness-influencing count, McIver’s testimony was relevant to show 

what he was thinking in the time leading up to the shooting, and it 

was highly probative on that issue because it was McIver’s own 

description of why he asked for his gun. While McIver argues that 
92

the testimony implied that he was prejudiced against the protesters 

on account of their race and thus that he was a person of bad 

character, any such prejudice did not substantially outweigh the

probative value of the testimony. Accordingly, the trial court did not 

abuse its discretion in admitting this evidence. See Edwards v. 

State, 308 Ga. 176, 183 (2) (839 SE2d 599) (2020) (appellant’s 

explanation in recorded telephone call of events surrounding fatal 

shooting was “highly probative” even though it “may have cast 

appellant in an unfavorable light” (Citations omitted.)). 

For similar reasons, we conclude that the trial court did not 

abuse its discretion in admitting the testimony of Dr. Marty Sellers, 

one of the two doctors who told McIver that Diane had died. 

Specifically, Dr. Sellers testified that when McIver entered the 

consulting room, the other doctor, Dr. Blayne Sayed, asked McIver 

to sit down, and McIver responded, “Don’t tell me what to do, boy.” 

McIver moved in limine to exclude this evidence as irrelevant and 

unfairly prejudicial because it would “[a]ppeal to racial bias” and 

“inject . . . racial issues into a trial that has nothing to do with race.” 
93

The record shows, however, that Dr. Sayed did not testify at trial, 

and Dr. Sellers did not testify about Dr. Sayed’s race, ethnicity, or 

age. The trial court ruled that this testimony was relevant as it

showed McIver’s statements and demeanor during the aftermath of 

the shooting, and that its probative value was not outweighed by 

any unfair prejudice. We conclude that the trial court did not abuse 

its discretion in so ruling.63

Evidence is intrinsic when it pertains to the chain of 

events explaining the context, motive, and set-up of the 

crime, and is admissible so long as it is linked in time and 

circumstances with the charged crime, forms an integral 

and natural part of an account of the crime, or is 

necessary to complete the story of the crime for the jury. 

There is no bright-line rule regarding how close in time 

evidence must be to the charged offenses, or requiring 

evidence to pertain directly to the victims of the charged 

offenses, for that evidence to be admitted properly as 

intrinsic evidence.

 63 The trial court also stated that this evidence was admissible to 

impeach by contradiction the testimony elicited by the defense on crossexamination portraying McIver as a grieving husband and “the consummate 

Southern gentleman who’s polite to everyone . . . . [and] just an all around 

super good guy.” But a character trait may be proved or rebutted only by 

testimony as to reputation or in the form of an opinion, unless the character 

trait “is an essential element of a charge, claim, or defense or when an accused 

testifies to his or her own character.” (Citations, punctuation, and footnote 

omitted.) Griffin v. State, 309 Ga. 860, 873 (5) (b) (849 SE2d 191) (2020) (citing 

OCGA § 24-4-405). Dr. Sellers’ testimony as to a single instance of conduct on 

McIver’s part did not fall within this rule.
94

(Citations and punctuation omitted.) Hughes v. State, 312 Ga. 149, 

152 (1) (861 SE2d 94) (2021). Evidence of McIver’s statements at the 

hospital, shortly after the shooting and at or near the time of Diane’s 

death, was closely linked in time and circumstances to the shooting 

and was an integral part of the account of the event. And while 

intrinsic evidence may be excluded under Rule 403 if its probative 

value is substantially outweighed by unfair prejudice, see Hughes, 

312 Ga. at 153 (1), this evidence, while not particularly probative, 

was also not particularly prejudicial, especially given that Dr. Sayed 

did not testify at trial and his age and ethnicity were not made 

known to the jury. Therefore, the trial court did not abuse its 

discretion in admitting this testimony.

Finally, with respect to McIver’s contentions as to improper 

argument by the State in which it was stated or implied that McIver 

harbored racial prejudice, we caution the State and the trial court to 

be mindful of the impropriety of such arguments if there is a retrial. 

While several portions of the State’s closing argument were 
95

questionable,64 we note particularly and with disapproval the 

prosecutor’s display of a PowerPoint slide with a bullet point reading

“KKK” during his closing argument.65 Questioned at oral argument

in this Court, the State ultimately acknowledged that no evidence 

was produced at trial to support any inference that the Ku Klux

Klan was relevant to this case.

McIver enumerates the prosecutor’s conduct as error, and he

included in his appellate brief a still frame from a video recording of 

the prosecutor’s closing argument, showing the prosecutor gesturing 

towards the offending slide in the courtroom. But McIver did not 

object at trial, and “we do not review unpreserved challenges to 

closing arguments in non-death penalty cases, even for plain error.”

(Citation omitted.) Moon v. State, 311 Ga. 421, 426 (4) (858 SE2d 18) 

(2021). 

 64 As McIver notes, the State emphasized in closing argument both the 

Black Lives Matter statement and the statement to Dr. Sellers, making several 

pointed comments that, from the cold transcript, appear aimed at suggesting 

that McIver was racially biased. 65 This bullet point appeared on the PowerPoint slide immediately below 

one referencing “Black Lives Matter” protesters. 
96

While this instance of the prosecutor’s conduct therefore 

cannot be reviewed as potential reversible error, we strongly caution 

the State that this or any similar behavior is not to be repeated upon 

any retrial of this case. We have repeatedly noted that in the absence 

of relevance, “racial bias or prejudice should not be injected into the 

proceedings, as such issue could tend to destroy the impartiality of 

the jury and because it would not be relevant.” (Citation and 

punctuation omitted.) Merritt v. State, 311 Ga. 875, 884 (3) (860 

SE2d 455) (2021); see also Boring v. State, 289 Ga. 429, 434 (711 

SE2d 634) (2011) (link between evidence and appellant’s purported 

satanic beliefs was “forged only via the State’s opening statement 

and closing argument, which itself was improper.” (Citations 

omitted.)). Moreover,

[t]he responsibility of a public prosecutor differs from that 

of the usual advocate; his duty is to seek justice, not 

merely to convict. . . . It has often been stated that it is 

the duty of a prosecuting attorney to see that justice is 

done and nothing more. That duty should not be forgotten 

in an excess of zeal or the eager quest for victory in his 

case. The people of the state desire merely to ascertain 

beyond a reasonable doubt that the accused is guilty of 

the crime charged, and do not countenance any 
97

unfairness upon the part of their representatives in court.

(Citations and punctuation omitted.) Carr v. State, 267 Ga. 701, 712

(10) (482 SE2d 314) (1997), overruled in part on other grounds by 

Clark v. State, 271 Ga. 6 (5) (515 SE2d 155) (1999); see also Smith 

v. State, 288 Ga. 348, 355-356 (10) (b) (703 SE2d 629) (2010) (“In this 

regard, we must remind all prosecutors in this State that it is not 

their job to pursue stunts and antics during their closing arguments 

that are designed merely to appeal to the prejudices of jurors.”)

Judgment affirmed in part and reversed in part. All the 

Justices concur, except Peterson, J., not participating, and LaGrua, 

J., disqualified.