Mbungu v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.

In the Supreme Court of Georgia

Decided: September 16, 2025

S25A1237. MBUNGU v. THE STATE.

PETERSON, Chief Justice.

Jedidja Mbungu appeals his convictions for felony murder and

possession of a firearm during the commission of a felony, stemming

from the shooting death of De’Andre Jones.1 Mbungu argues that

the trial court erred by excluding evidence of an alleged prior

difficulty between Mbungu and Jones and evidence that Jones was

1 The crimes occurred on August 29, 2020. On June 1, 2021, a DeKalb

County grand jury returned an indictment charging Mbungu with malice
murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), and
possession of a firearm during the commission of a felony (Count 4). At an
October 2023 trial, the jury found Mbungu not guilty of malice murder and
guilty of the other counts. On October 30, 2023, the trial court sentenced
Mbungu to life in prison for felony murder and to a five-year, consecutive,
suspended sentence on the firearm count. The aggravated assault count
merged. Mbungu filed a timely motion for new trial, which was amended in
January 2025. Mbungu waived an evidentiary hearing on the motion, and the
motion was denied in an order entered on March 19, 2025. Mbungu filed a
timely notice of appeal. The appeal was docketed to this Court’s August 2025
term and submitted for consideration on the briefs.
a member of a gang, and by failing to instruct the jury on combat by

agreement and mistake of fact. We conclude that any claimed

evidentiary error was harmless, and the trial court did not err in

refusing to give the requested instructions. We affirm.

The evidence presented at trial was as follows.2 Steve Hines

testified that on August 29, 2020, he was working security at a

Chevron gas station in DeKalb County, when Mbungu approached

him. Mbungu motioned towards Jones, who was across the street in

front of a Shell station, saying, “There that mother fu**er go right

there,” and “He don’t have a gun.” Hines saw Jones, accompanied by

another man, walking toward the Chevron station from the Shell

station, as Mbungu walked from the Chevron to the Shell. Hines saw

Mbungu and Jones pass each other in the middle of the street, heard

2 Because Mbungu does not raise a claim that the evidence to support his

convictions was insufficient as a matter of constitutional due process, and
because two of the enumerations that he does raise require us to consider the
strength of the evidence in determining whether assumed evidentiary errors
by the trial court were harmless, we review the record de novo, and we weigh
the evidence as we expect reasonable jurors would have viewed it, rather than
viewing it all in the light most favorable to the verdicts. See Parker v. State,
320 Ga. 572, 578 (2024).
2
Mbungu say, “Hey, mother fu**er,” 3 and then saw Mbungu shoot

Jones. Hines saw Jones try to run away before collapsing. Hines did

not see Jones or the man accompanying Jones with a gun that night,

nor did he see anyone take any gun off Jones’s person after he was

shot. Hines testified that he observed Mbungu wearing a bullet-

proof vest at the time of the shooting.

Izeonna Bigby, a teenager sitting in a car at one of the gas

stations, testified for the defense that she saw Jones and Mbungu

cross paths and begin arguing. Bigby testified that she saw Jones

reach for something that she believed to be a gun right before he was

shot, although she acknowledged that she did not see Jones with a

gun and that Mbungu pulled his gun out first. Bigby testified that

Mbungu shot Jones in the back.

Surveillance video from the Chevron captured the events

surrounding the shooting, albeit without a direct view. The video

appeared to show Mbungu briefly approach Hines at the Chevron

3 On cross examination, Hines testified that it was possible that it was

Jones who said that.
3
before turning back toward the Shell station, then shoot Jones as

Jones was running away from Mbungu, the two moving from the

Shell station toward the Chevron.

Mbungu fled the scene and surrendered several days later at

the county jail. No gun was found on or near Jones’s body. The

medical examiner determined that Jones died of a gunshot wound

to the back left side of his head.

Mbungu testified at trial that as he walked away from the

Chevron, he heard Jones tell someone to give Jones a gun so that he

could shoot Mbungu. He saw Jones get a gun from a car and walk

towards Mbungu, saying, “What I told you about being here,” and “I

told you I was going to shoot you the next time I see you.” Jones said,

“Hey, motherfu**er,” and Mbungu turned to see Jones brandishing

the gun. Mbungu pulled a gun from his fanny pack and started

shooting. Mbungu testified that he feared for his life and believed

that Jones had a gun in his hand. 4 Mbungu denied wearing a bullet-

4 On cross-examination, Mbungu agreed that Jones merely “attempted

to get it out” and that Mbungu was able to get to his gun first.
4
proof vest.

In addition to evidence about the shooting of Jones, the jury

heard about other previous encounters between Mbungu and Jones.

Mbungu testified about an incident about a week to ten days before

the shooting, in which Jones approached Mbungu and his friend,

Carlos Delrio, outside of an automobile parts store, with a gun in his

pants, and threatened to shoot them in the face. Delrio testified to

the jury that during that incident he saw a gun in Jones’s pocket

and heard Jones say, “I shoot him in the face.” Mbungu’s brother,

Gloire Mbungu, testified that, in October 2019, Gloire and Mbungu

had an encounter with Jones at the Shell station in which Jones

pulled out a gun and threatened to shoot both brothers. Mbungu

referenced that incident with his brother in his testimony to the

jury, saying his brother was mistaken about the timing and it had

in fact taken place in 2020. Mbungu also testified before the jury

that a friend told him that Jones had shot into an occupied house

three times within a 24-hour period. Mbungu testified that his

knowledge about Jones impacted his decision to shoot.

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1. Mbungu argues that the trial court made two evidentiary

errors: (a) by excluding evidence of a different alleged prior difficulty

between him and Jones; and (b) by excluding evidence that Jones

was in a gang. We conclude that any error in excluding this evidence

was harmless.

(a) Before trial, Mbungu filed a notice of his intention to

present intrinsic evidence and other acts evidence about Jones

pursuant to OCGA § 24-4-404(b). The filing gave notice that Mbungu

intended to present evidence that, among other things, about nine

days prior to the shooting of Jones, Jones threatened Mbungu and

his brother with an assault rifle, yelling at Mbungu not to “step on

the blood of my people.” Mbungu argued that the prior incidents

were relevant to show his “state of mind and absence of mistake and

absence of accident.” See Copeland v. State, 316 Ga. 452, 458 (2023)

(“Specific instances of a victim’s past conduct may … be admitted,

not to show the victim’s action in conformity therewith, but rather

establish the defendant’s state of mind and the reasonableness of

the defendant’s use of force.” (quotation marks omitted)). He also

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argued that the prior acts were intrinsic. Before his testimony to the

jury, Mbungu proffered that about nine days before the shooting,

Jones called Mbungu over near the Shell station and asked him

about a prior incident involving a friend of Mbungu. Later, at the

Shell station, Mbungu proffered, Jones became angry and

threatened Mbungu’s friend Michael and another man. Mbungu in

his proffer explained that Michael had stepped on some blood left on

the floor of the Shell station when one of Jones’s friends had been

shot. Mbungu also proffered, “I seen [Jones] on numerous occasions

with his gun. And the day of the Shell, the incident where it

happened at the Shell, where he pulled out a gun on me and my

brother, he had his gun on him that day.” The trial court excluded

evidence of the encounter involving the conversation near the Shell

and the subsequent conversation involving Michael, saying it was

“not a prior difficulty” because any threats were directed at Michael,

not Mbungu, and no gun was involved.

“A trial court’s decision whether to admit or exclude evidence

is reviewed on appeal for an abuse of discretion.” Tarver v. State, 319

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Ga. 165, 169 (2024) (quotation marks omitted). But we will reverse

a conviction based on a trial court’s abuse of discretion in excluding

evidence only if the exclusion was harmful. See id. (citing OCGA §

24-1-103(a) (“Error shall not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party

is affected.”)). “It is well settled that the test for determining

nonconstitutional harmless error is whether it is highly probable

that the error did not contribute to the verdict.” Tarver, 319 Ga. at

169–70 (quotation marks omitted).

Assuming without deciding that the exclusion of this proffered

evidence was an abuse of discretion, we conclude that any such error

was harmless. The jury did hear evidence of multiple incidents in

which Jones had threatened violence more explicitly, including

testimony by Mbungu, Mbungu’s brother, and Mbungu’s friend

Delrio that Jones had threatened to shoot them, as well as evidence

that Jones had shot into an occupied home. Thus, the excluded

evidence was very similar to evidence that was admitted. And

Mbungu’s self-defense claim was weak. No witness other than

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Mbungu testified to seeing Jones with a gun when he was shot, and

no gun was found on or near him. Although Bigby testified that she

saw Jones reach for something, she acknowledged that she did not

actually see Jones with a gun and that Mbungu pulled out his gun

first. Mbungu’s own testimony was inconsistent as to whether he

saw Jones pull out a gun. And the witness testimony, the medical

examiner’s testimony, and the video evidence supported an

inference that Jones was running away from Mbungu when he was

shot and that he was shot in the back. Thus, it is highly probable

that the exclusion of the proffered incident did not contribute to the

verdict. See Tarver, 319 Ga. at 171–73 (any error in exclusion of

evidence about prior acts of the victim to show the defendant’s state

of mind when he shot the victim was harmless given that the

excluded evidence was largely cumulative of admitted evidence and

the defendant’s self-defense claim was weak); Henderson v. State,

310 Ga. 708, 713–14 (2021) (any error in striking from the

defendant’s trial testimony reference to a statement the victim made

to the defendant about having been to prison previously was

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harmless in the light of admitted testimony about more explicit

threats to the defendant made by the victim and an associate, and

the strong evidence of the defendant’s guilt); Rowland v. State, 306

Ga. 59, 66–67 (2019) (any error in exclusion of evidence that the

victim had once solicited the defendant to kill the victim’s son was

harmless, given lack of clarity about the details of the incident, and

other, stronger evidence that was admitted in support of the

defendant’s self-defense claim, as well as the strength of the

evidence of the defendant’s guilt).

(b) Also before trial, the State filed a motion in limine seeking

to exclude evidence of Jones’s bad character, including evidence of

Jones’s alleged gang membership, on the basis that Mbungu could

prove a pertinent character trait only through reputation and

opinion evidence. During arguments on the motion, the defense

represented that Hines, the security guard, could testify about

Jones’s membership in a gang. The trial court ruled that Hines

would not be permitted to testify as such, although Mbungu could

call a gang expert to testify. The trial court later ruled that any

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evidence of Jones’s gang affiliation was not relevant, saying the

court would not allow such evidence in the form of autopsy photos

showing tattoos on Jones’s face or testimony by Mbungu. Mbungu

proffered that he knew Jones was in a gang, the basis for his

knowledge, and how that knowledge played into his own actions in

shooting Jones. Mbungu’s counsel also proffered a law enforcement

officer’s testimony about gangs, but generally the witness resisted

stating definitively that Jones was in a gang based on materials

shown to him by defense counsel and proffered that Jones had never

been identified as a gang member.

Again assuming without deciding that the trial court abused

its discretion in excluding evidence of Jones’s gang membership, we

conclude that any such error was harmless, for reasons similar to

those set forth in Division 1(a). Even assuming that evidence that

Mbungu believed that Jones was in a gang was relevant to the

reasonableness of Mbungu’s actions, but see Spivey v. Rocha, 194

F3d 971, 977–78 (9th Cir. 1999) (whether the victims were gang

members “was not probative to the question of whether they were

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armed” on the day of the shooting), the jury heard other evidence

that Jones had committed violent acts of which Mbungu was aware.

And, again, Mbungu’s self-defense claim was weak. Therefore, it is

highly probable that the exclusion of evidence of Jones’s alleged

gang affiliation did not contribute to the verdict. See Tarver, 319 Ga.

at 171–73; Henderson, 310 Ga. at 713–14; Rowland, 306 Ga. at 66–

67.5

2. Mbungu also argues that the trial court erred by refusing,

over his objection, to charge the jury on mistake of fact and combat

by agreement. We disagree.

(a) “To authorize a requested jury instruction, there need

only be slight evidence supporting the theory of the charge. Whether

the evidence presented is sufficient to authorize the giving of a

charge is a question of law.” Venturino v. State, 306 Ga. 391, 398

5Mbungu does not argue that the evidentiary errors we assume for
purposes of analysis in this opinion cumulatively resulted in harm. See State
v. Lane, 308 Ga. 10, 18 (2020) (“[E]ven in the evidentiary context, a defendant
who wishes to take advantage of the [cumulative error rule] should explain to
the reviewing court just how he was prejudiced by the cumulative effect of
multiple errors.”). And, for the reasons set forth above, we discern no apparent
cumulative prejudice warranting reversal.
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(2019) (quotation marks omitted).

Mbungu’s argument that the trial court should have charged

on mistake of fact is premised on his testimony that he mistakenly

believed that Jones was in fact reaching for a gun when Mbungu

shot him. Such a mistake would have justified the shooting, Mbungu

posits. But this Court has made clear that “a mistake-of-fact

instruction is not required, even upon request, if the ‘mistake’ or

‘misapprehension’ alleged by the defendant is the belief that the

victim possessed a weapon or was about to use deadly force against

the defendant, so long as the trial court fully instructs the jury on

justification and self-defense, including analogous principles of

justification and reasonable belief.” Redding v. State, 311 Ga. 757,

759–60 (2021); see also Winters v. State, 303 Ga. 127, 133 (2018)

(“[M]istake of fact is not separate from a self-defense argument

where the asserted mistake concerned whether the victim was

armed and the defendant’s use of force was thus justified.”). The only

mistake of fact that Mbungu asserts was that he mistakenly

believed that Jones had a gun, which supports his justification

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defense. Here, the trial court fully charged the jury on justification

and self-defense, including language instructing the jury that a

defendant claiming self-defense must have a reasonable belief that

his use of force was necessary. Therefore, Mbungu has not shown

error in the trial court’s refusal to charge on mistake of fact.

(b) As for Mbungu’s argument that the trial court erred by

refusing to charge on combat by agreement, mutual combat “occurs

when there is combat between two persons as a result of a sudden

quarrel or such circumstances as indicate a purpose, willingness,

and intent on the part of both to engage mutually in a fight.”

Venturino, 306 Ga. at 398 (quotation marks omitted). See also

Carruth v. State, 290 Ga. 342, 348 (2012) (noting use of the phrase

“combat by agreement” in OCGA § 16-3-21(b)(3)). Mbungu argues

that Bigby’s testimony that Jones and Mbungu argued and that

Jones might have pulled out a gun was slight evidence supporting a

mutual combat charge. But evidence that Jones and Mbungu argued

before Mbungu shot Jones is not sufficient to support a jury

instruction on mutual combat. See Williams v. State, 309 Ga. 212,

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217 (2020); Moore v. State, 307 Ga. 290, 296 (2019). And evidence

that the victim threatened death or seriously bodily injury, such as

by reaching for a weapon, although it may support a self-defense

instruction, does not support an instruction on mutual combat. See

Williams, 309 Ga. at 217–18; Moore, 307 Ga. at 296; Venturino, 306

Ga. at 398.

Mbungu cites Carreker v. State, 273 Ga. 371 (2001), in which

we said that the trial court did not err in giving a mutual combat

instruction where “[t]here was some evidence from which the jury

could have found that both parties intended to resolve their

differences by fighting each other with deadly weapons.” Id. at 372.

But a defendant’s complaint about the giving of an instruction on

mutual combat generally lacks merit, given that the instruction

generally benefits a defendant. See Sanders v. State, 283 Ga. 372,

375 (2008). This case is about the refusal to give such an instruction.

And there is no evidence here that both Jones and Mbungu intended

to resolve their differences by fighting each other with deadly

weapons. Indeed, Mbungu testified that he feared for his life and

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fired in self-defense, not that he wanted to fight. Therefore, there

was no error in rejecting the request for a mutual combat

instruction. See Tepanca v. State, 297 Ga. 47, 48, 50 (2015) (no error

in denying request for instruction on mutual combat where the

defendant claimed that he did not want to fight the victim but shot

the victim in self-defense after he thought he saw the victim

reaching for something). See also Berrian v. State, 297 Ga. 740, 742–

43 (2015) (distinguishing Carreker and concluding that there was no

plain error where the evidence showed that the defendant and the

victim taunted one another before the defendant shot the victim;

“The scenario described by appellant supports an instruction on self-

defense, which the trial court gave, but not a mutual combat

charge.”); Carruth, 290 Ga. at 348–49 (concluding that there was no

plain error in failure to charge on mutual combat, as such a charge

“was not adjusted to the evidence” where defendant claimed that

victim approached him and initiated a fight, pulling out a knife,

while another witness claimed that the defendant attacked the

victim).

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Judgment affirmed. All the Justices concur.

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