Case Information
*1 In the Supreme Court of Georgia
Decided: May 29, 2024 S24A0171. ALLEN v. THE STATE.
P ETERSON , Presiding Justice.
Thе right to trial by jury is the cornerstone of our justice
system. “That right is no mere procedural formality, but a
fundamental reservation of power in our constitutional structure.
Just as suffrage ensures the people’s ultimate control in the
legislative and executive branches, jury trial is meant to ensure
their control in the judiciary.”
Blakely v. Washington
,
The General Assembly has determined that one such question is whether a killing immediately following a serious provocation *2 should be punished as voluntary manslaughter instead of murder. See OCGA § 16-5-2. When any evidence of such serious provocation exists, it is for the jury, not a judge, to decide whether the provocation was sufficient to mitigate the culpability. This is such a case.
Sherman Lamont Allen appeals his conviction for malice murder in connection with the beating death of his cousin, Treston Smith. In his sole enumeration of error, Allen argues that the trial court erred in denying his request to instruct the jury on voluntary manslaughter as a lesser offense of murder. Because there was sufficient evidence to support the jury instruction, the court erred in refusing to give it. And because the State has failed to carry its burden to show that it is highly probable that the error did not contribute to the verdict, that error requires us to reverse Allen’s murder conviction. [1]
[1] The crimes occurred on March 16, 2017. On April 25, 2017, an Elbert County grand jury indicted Allen for one count of malice murder, two counts of felony murder, two counts of aggravated assault, and one count of aggravated battery. Following a March 2019 trial, a jury found Allen guilty on all counts.
1. The evidence at trial showed as follows. [2] Allen and Tia Allen began a romantic relationship around 2005. They lived together, raised Tia’s son together, and had two children of their own. Although the couple never married, they considered themselves to be married. Tia referred to Allen as her “fiancé” and considered herself married, and Allen claimed that Tia would introduce him as her “husband.”
In December 2016, Tia became friends with Smith, who was married and had children of his own. They began talking on a The trial court sentenced Allen to serve life in prison with the possibility of parole for malice murder. Although the trial court purported to merge the felony murder counts into the malicе murder conviction, the felony murder counts were vacated by operation of law, and the other counts merged into malice murder. See Ware v. State , 302 Ga. 792, 794-795 (3) (809 SE2d 762) (2018). On April 22, 2019, Allen filed a motion for new trial. After a hearing, the trial court denied the motion on February 13, 2023. Allen filed a timely notice of appeal. On appeal, Allen’s new counsel moved to withdraw, so this Court struck the case from the docket and remanded for a hearing on that motion. See Case No. S23A0845 (May 31, 2023 order). On remand, the trial court granted counsel’s motion to withdraw, and Allen obtained new counsel. Allen filed a new notice of appeal on September 12, 2023, and the case was docketed in this Court for the term beginning in December 2023 and submitted for a decision on the briefs.
[2] Because this case turns on an assessment of whether an error was
harmless, we lay out the evidence fully, rather than in the light most favorable
to the jury’s verdicts. See
Moore v. State
,
regular basis as friends and eventually developed a sexual relationship that Tia described as an affair. Sometime in January, Allen heard a rumor about Tia and Smith. In a police interview, Allen stated that he got a call after work from someone who asked if he and Tia were “okay” because someone “caught” Tia and Smith in a car. Although Allen’s description of what transpired was not very clear, he said that he then confronted Tia and told her that if she were “really messin’ around” then they should go their separate ways, and that Tia denied being with Smith. Allen testified that he confronted Tia sometime in January. According to Allen, Tia also told him to ask her friend who was present, but Allen declined because he knew Tia’s friend would lie for her about the rumor he heard.
According to Tia, Allen then “let it go,” and she continued her affair with Smith. According to Tia, she first had sex with Smith in February 2017, and she claimed to have sex with him on two occasions. She said she would meet Smith when Allen was asleep or at work, and they would travel from Elberton to Atlanta to be *5 together.
On the evening of March 15, Allen went to work. At 3:19 a.m. on the morning of March 16, he left work. Around 3:50 a.m., after getting breakfast, he went to a gas station and drove around to the back. Smith had parked his tractor-trailer there, and Tia and Smith were together in her parked car nearby. According to Tia, they were in the car together for a few minutes talking and kissing, and then Smith got out of Tia’s car so that she could drive tо work in Athens.
Smith had just gotten out of Tia’s car when Allen drove behind the gas station. Allen got out of his vehicle, hit the front driver-side window of Tia’s car with his hand, and said, “B**ch, what you think you doing?” Tia drove off to work. She testified that Allen appeared to be “pretty angry” when he hit her car and yelled at her.
After Tia drove off, Allen engaged Smith in a verbal altercation that led to a physical fight. Surveillance videos from the gas station, which were played for the jury at trial, captured some, but not all, of the fight, because a truck obstructed the view. The video recordings do not show the start of the fight. At some point, Allen *6 and Smith came into the camera’s view. Allen, who was wearing steel-toed boots, could be seen beating and kicking Smith, who was on the ground at that point. Allen then got into his vehicle, drove forward a short distance, stopped his vehicle, backed up, got out, and resumed beating Smith while Smith was lying on the ground. Allen then left the scene. According to the owner of the gas station, who called 911, Allen approached Smith, pulled him out of his tractor- trailer, “beat him,” and repeatedly kicked him in the face while he was lying on the ground.
Driving home from the gas station, Allen called Tia multiple times to ask “what’s going on” and called several relatives to tell them that he “got in a fight.” He showered and changed clothes at home.
Law enforcement officers responded to the scene and found Smith “face down . . . in the gravel, dirt area[.]”The coroner pronounced Smith dead at the scene. The front of Smith’s body was muddy but not his back. Shortly after 6:00 a.m., Allen turned himself in at the Elbert County Sheriff’s Office.
Dr. Colin Hebert, the medical examiner who performed Smith’s autopsy, noted that Smith’s “head had a lot of swelling and bruising, lacerations, and scrapes, abrasions.” Dr. Hebert found gravel embedded in Smith’s face, mouth, and tongue. Smith did not have “much in the way of injury on his body below [his] head[.]”Dr. Hebert concluded that Smith died of blunt force trauma of the head.
At trial, Allen testified in his own defense, stating the following. He left work before his shift ended because he completed his assignments. He went directly to a restaurant, ordered food to go, and waited there about 30 minutes because the cook was on a break. After he left the restaurant and neared his home, he decided that he wanted to “take a little detour” and “go riding a round,” which he stated was normal for him to do. He said that he stоpped at the gas station to adjust a window that was rattling and then circled behind the gas station to turn around, which he also stated was his normal practice. Allen claimed that he did not expect Tia and Smith to be behind the gas station, but when he rounded the corner, he recognized Tia in her car and saw Smith getting out of the *8 car. Smith then walked away from the car.
Allen claimed that he got out of his vehicle and walked toward Tia’s car. “I noticed them then,” Allen testified, “and I’m like two and two together like this, uh, so it’s really true.” He admitted to approaching her car, hitting it with the palm of his hand, and calling Tia a “b**ch.” He said he was angry, mad, and hurt, because the person he saw Tia with was the same person whom he had asked her about before and the person she had denied having an affair with. Allen said that Tia looked at him like, “damn, I’ve been caught.” Allen acknowledged that he then approached Smith but denied pulling Smith out of his tractor-trailer. Allen said that he and Smith talked for two to five minutes before fighting. Allen testified that he asked Smith what was going on, and Smith was “telling [Allen] something was going on between them.” When asked specifically what Allen asked Smith, Allen said that he referenced Smith’s status as a married man with his own family and asked, “why you trying to, you know, destroy mine; f**king up mine?” Allen testified that Smith merely responded to each question by repeating, *9 “man, f**k you” with a smirk on his face. Allen also said that Smith initiated the fight by punching Allen “dead in my face” and that the two men went to the ground where Allen put Smith in a chokehold. Allen stated that when he stood up to leave, he “got stabbed in the leg” with a knife, so Allen began fighting again, took the knife from Smith, and got into his vehicle. [3] Allen said that he stopped his vehicle and went back to kick Smith some more because he was angry that Smith had stabbed him. Allen denied ever kicking Smith in the face or head.
Although Allen said at one point in his testimony that he was not “angry like vicious mad,” Allen clarified that he was angry when he saw Tia and Smith. And throughout his testimony, Allen repeatedly said that he was angry when he was asking Smith questions. And he said he was “still angry and mad” when he returned to continue fighting Smith. Allen testified that he did not intend to injure or kill Smith and was merely trying to protect [3] An officer who was present when Allen turned himself in testified that photographs admitted at trial of Allen’s injuries showed Allen’s “left thigh where he had a cut on it.”
himself.
During his police interview, which was recorded and played for the jury, Allen said that he drove to the gas station becausе he had a “feeling of something being off.” Referring to Tia as his “fiancé and the mother of [my] kids,” Allen stated that when he approached her, he asked, “why you lie?” Allen also said he told Smith, “you married, you got your own, you got everything,” “you got a wife,” and asked, “you really would do this to my family?”, and asked “why?”, “why me?,” and “why would you, man?” Allen said he was “hurt” because Smith was his cousin; Tia was the mother of his children, the woman he wanted to be with for the rest of his life, his wife; and he wanted only answers, which Smith would not provide. In describing the fight, Allen said he and Smith were tussling, they began hitting each other and fell to the ground. When Allen got up, Allen stated, he kicked Smith and told him to get up, but Smith did not move. Allen said he thought he had merely “knocked [Smith] out or something.” *11 Allen had not seen the knife until after he got off the ground. [4] He then grabbed the knife and got into his car. Allen stated that on the way home from the gas station, he threw that knife out the window. Allen, sobbing in the interview, said he was not a violent person, never fought anyone before, and did “not know what happened.”
At trial, Allen requested a jury charge on voluntary manslaughter and objected to the trial court’s refusal to give it. In denying the request, the trial court focused on Allen’s trial testimony where he stated that he acted in self-defense and did not intend to kill the victim, noting that voluntary manslaughter required an intent to kill. [5] Allen was found guilty of malice murder and other offenses and sentenced to life on the malice murder count.
2. Allen’s sole claim on appeal is that the trial court erred in [4] There is no indication Allen saw the knife until after the fight started and Smith was unconscious.
[5] The trial court’s statement about intent being a necessary element of voluntary manslaughter was partially correct: when voluntary manslaughter mitigates malice murder, the element of intent to kill is required. See Carter v. State , 298 Ga. 867, 870 (785 SE2d 274) (2016). But when voluntary manslaughter mitigates felony murder, the intent to kill is not a necessary element; instead, only the intent necessary to commit the predicate felony is required. See id.
denying his request to instruct the jury on voluntary manslaughter. OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. [6] [6] The dissent’s approach and our disagreement herein expose a tension in our case law, albeit one we need not resolve today. This tension arguably stems from the change in the voluntary manslaughter statute in 1968. Prior to 1969, the voluntary manslaughter statutory provision remained materially the same since its initial adoption in 1833, and that 1833 provision provided:
In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing. Provocation by words, threats, menaces, or contemptuous jestures [sic] shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion, supposed to be irresistible: for if there should appear to have been an interval between the assault or provocation given, and the homicide, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder.
Laws 1833, Cobb’s 1851 Digest, § 34, pp. 783-784. When the laws of Georgia were codified in the 1860 Code, the voluntary manslaughter statute expanded *13 adequate provocation beyond actual or attempt assault to include “other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied[,]” but it still retained the exclusion of provocation by words. See 1860 Code § 4222. In 1968, the current version of the voluntary manslaughter statute was enacted and omitted the language stating that “[p]rovocation by words, threats, menaces, or contemptuous jestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.” See Ga. L. 1968, p. 1276, § 1.
When the General Assembly changes the language of a statute, that
typically signals an intent to change the meaning of the statute. See
Middleton
v. State
, 309 Ga. 337, 345 (3) (846 SE2d 73) (2020) (it is “a core principle of
statutory interpretation that changes in statutory language generally indicate
an intent to change the meaning of the statute.” (citation and punctuation
omitted)); see also
Transp. Ins. Co. v. El Chico Rests., Inc.
,
It is debatable whether the General Assembly intended in 1968 to keep
the old rule in place. The 1968 revisions to the criminal code relied, at least in
part, on the Model Penal Code, which was completed in 1962. See
Danuel v.
State
, 262 Ga. 349, 354-355 (418 SE2d 45) (1992) (Bell, P.J., concurring
specially) (noting the reliance on the Model Penal Code by the Criminal Law
Study Committee for the 1968 Code). Scholarship on the issue of adequate
provocation reveals that, although the common law largely restricted
provocation to four categories (mutual combat, sudden injury, false arrest, and
adultery), by the time the Model Penal Code was enacted, this restrictive rule
*14
A trial court must “grant the defendant’s request for a charge on the
lesser included offense of voluntary manslaughter if there is any
evidence, however slight, to support such a charge.”
Wilkerson v.
State
,
No party has briefed the issue of whether Brooks ’s interpretation of the predecessor to OCGA § 16-5-2 (a) was correct (and if not, whether it should nevertheless be retained under stare decisis). And it is not necessary to resolve this question here, as the existing legal framework regarding discovery of adulterous conduct is adequate to resolve Allen’s claim.
*15
Our case law has long recognized that discovering a partner’s
infidelity is generally sufficient provocation to warrant a charge on
voluntary manslaughter. See, e.g.,
Mays v. State
,
Witnessing one’s partner actually commit an “adulterous act”
is certainly one manner of discovering a partner’s infidelity that can
be sufficiently provoking as to warrant a voluntary manslaughter
charge. See
Mays
,
The court stated in passing that the provocation was “intolerably great,”
*17
provoked by finding his partner and another person “in such a
position as to indicate with reasonable certainty, to a rational mind,
that they had just” committed an adulterous act. Id. Moreover,
although words alone are almost never sufficiently provoking, words
that disclose an adulterous act of a partner can be. See
Lynn v. State
,
*18
sort of provocation necessary to reduce a murder to manslaughter,
they must disclose
adulterous conduct or, in the case of unmarried
persons, sexual relations with other persons during the course of a
relationship” (citations and punctuation omitted; emphasis added));
Strickland v. State
,
Applying those principles here, it is plain that there was at least slight evidence to authorize a jury charge on voluntary manslaughter. Both Tia and Allen testified that Allen suspected Tia of having an affair with Smith, Allen’s cousin. Allen described in a police interview that he became aware of the possible affair after someone called to ask if he was “okay” and if he and Tia were “okay” because Tia was seen with Smith in a car. Although it is not clear [8] The dissent argues that our decision today makes Georgia an outlier among our sister states. This is wrong for at least two reasons. First, LaFave’s explanation of the rule in at least some jurisdictions is consistent with our holding. Second, our holding today does not change anything about Georgia law; it is simply a faithful application of our precedent. Instead, it is the dissent that seeks to reinterpret Georgia law to narrow the application of the voluntary manslaughter statute.
*20 what Allen was told about that incident, Allen stated that he confronted Tia about what he had heard in January and told her that they should go their separate ways if she really were “messin’ around.” So whatever Allen had been told, his words indicated suspicion that Tia was being unfaithful by “messin’ around” with Smith. [9]
In March, after being told that Tia and Smith had been caught together in a car, and being told by Tia that nothing was going on in response to Allen asking whether she were “messin’ around,” Allen found Tia and Smith in what he could have reasonably perceived as a compromising situation. [10] Smith was leaving Tia’s car that was [9] The dissent downplays the significance of this January encounter, suggesting that Tia and Smith were merely in a car together with another female. Although there is no clear evidence of what Tia and Smith were doing in the car, whoever saw Tia and Smith was so concerned by what they saw that they called Allen to see if everything was “okay” between him and Tia.
[10] The dissent takes issue with our characterization of these circumstances, but in arguing that such situations cannot support a reasonable inference that a spouse has committed adultery, it cites State v. Cooley , 536 SE2d 666 (S.C. 2000), which supports a voluntary manslaughter charge here. There, the Supreme Court of South Carolina stated that a killer can get a voluntary manslaughter charge if he “finds the other spouse and paramour in a guilty embrace or flagrantly suggestive situation .” Id. at 668 (emphasis added). Euphemisms aside, when a defendant may have killed another person *21 parked behind the gas station in the middle of the night when she was expected to be on her way to work. A reasonable person could infer that Tia and Smith were meeting this way in order to avoid detection about their rendezvous. There is no evidence that Allen saw Tia and Smith committing an adulterous act, but Allen testified that he saw Smith getting out of Tia’s car and that Tia had an expression on her face “like, damn, I’ve been caught.” Allen surmised that Tia had in fact been unfaithful, stating, “I’m like two and two together like this, uh, so it’s really true.”
For his part, in response to Allen’s questions about why Smith as a married man was interfering with Allen’s marriage, Smith “smirked” and repeated “man, f**k you” while confirming that “something was going on” between him and Tia. In isolation, these words may not signal an affair. But context matters. Allen stated that Smith said those words after Allen kept pressing him for details in an attempt to understand why Smith and Tia were having an because of sexual infidelity, the critical factor in determining whether a voluntary manslaughter instruction was warranted is whether the defendant acted based on that discovery.
*22 affair. It cannot reasonably be denied that Smith’s response can be, though is not required to be, interpreted as an admission that he and Tia had engaged in adulterous conduct. While this evidence may not have been indisputable proof, a reasonable person could have found that it amounted to a reasonable belief that such conduct had occurred.
Again, it is important to remember what the law requires. The discovery of adulterous conduct can provide the necessary provocation to warrant a voluntary manslaughter charge. See Ware , 303 Ga. at 850 (III) (disclosure of “adulterous conduct” may constitute the serious provocation sufficient to require a jury charge on voluntary manslaughter). This is not to say that a jury should or would find Allen guilty of voluntary manslaughter, only that it is for a properly charged jury to make that decision.
Our decision in
Clough v. State
,
[11]
At several points, the dissent distinguishes some of our cases by noting
that they addressed the sufficiency of the evidence. But this misses the point.
*25
The State and the dissent make several arguments that a
voluntary manslaughter charge was unwarranted here. But these
all fail. Citing
Tepanca v. State
,
*26 voluntary manslaughter charge because there was no evidence that he killed the victim as the result of a sudden, violent, and irresistible passion. Id. at 50 (4). In contrast, here there was more than slight evidence showing that Allen acted out of a passionate response to the sudden disclosure of sexual infidelity.
The State next argues that a voluntary manslaughter
instruction was not warranted because Allen repeatedly claimed in
his trial testimony that he was acting in self-defense and did not
intend to kill Smith, which the State argues conflicted with a
voluntary manslaughter claim. We have made clear that intent is
necessary for a defendant to be convicted of voluntary manslaughter
as an alternative to malice murder. See
Carter v. State
,
In support of its argument, the State cites
Ruffin v. State
, 296
Ga. 262 (765 SE2d 913) (2014), where this Court stated that
“appellant’s own testimony contradict[ed] a necessary element of
*27
voluntary manslaughter, in that he claim[ed] he did not intend to
kill, but was acting in self-defense[.]” Id. at 264 (2) (b). But unlike
this case, there was nothing else in
Ruffin
that would have
supported a voluntary manslaughter charge. Our recitation of the
facts there did not show even slight evidence of provocation; instead,
it showed that the killing was likely premeditated. Id. at 262-263.
See also
Davis v. State
,
To the extent the State reads
Ruffin
as precluding jury charges
on inconsistent theories, any such reading has been superseded by
more recent caselaw. See
McClure v. State
,
*30
The dissent reaches a contrary conclusion, but does so
engaging with only a subset of the relevant precedent, framing facts
and context only in a light favorable to a theory of guilt of murder,
and becoming distracted by “practical and concerning” policy
implications of our voluntary manslaughter statute’s requirement
that juries decide some important questions. First, the dissent
contends that
judges must be the gatekeepers to keep
reasonableness questions away from the jury. But assessing what is
reasonable, what reasonable inference can be drawn from the
evidence, or more relevant here, whether certain qualifying conduct
is sufficiently provocative is almost always a jury question. See
Anderson v. State
, 248 Ga. 682, 683 (3) (285 SE2d 533) (1982) (“Whether or not a provocation, if any, is such a serious provocation
as would be sufficient to excite a sudden, violent, and irresistible
passion in a reasonable person, reducing the offense from murder to
manslaughter, is generally a question for the jury.”)
[12]
; cf.
Smith v.
[12]
This point is well-accepted by now. See, e.g.,
Jones v. State
, 314 Ga.
692, 695 (
Our long-settled precedent makes clear that all that is required is there be “slight evidence” of serious provocation. The dissent spends much time showing that Allen’s claim of serious provocation was not persuasive or reasonable. In doing so, the dissent puts itself in the position of the jury and assesses the reasonableness of that claim. But as we have made abundantly clear before, in determining whether a jury charge was warranted,
[w]e must decide
only
whether there was slight evidence
to support the jury instruction. And if there was slight
evidence supporting the instruction[,] . . . it is
irrelevant
whether we find that slight evidence persuasive in the
339) (2019);
Moses v. State
,
McIver v. State
,
The dissent reads our case law as requiring the defendant to
have caught his spouse or partner in the act of adultery or hear
about it in a taunting way, leaving no room for anything else. That
is simply not the law. It is the disclosure or discovery of adulterous
conduct that is required, and that element has been met here.
Sometimes discovery happens during the act; sometimes it happens
later. The dissent does not meaningfully engage with
Clough
, where
the defendant neither caught the defendant in an adulterous act —
the victim was merely sleeping in the same bedroom with another
*33
man — nor was there evidence that he had heard about any such
conduct.
The dissent acknowledges our case law indicating that
although words by themselves generally do not serve as sufficient
provocation, words disclosing adulterous conduct can.
[13]
See
Strickland
,
provoking. The dissent suggests that such disclosures must be of a
“taunting” nature. Even if that proposition were true,
[14]
there is some
evidence of taunting here. In particular, there is evidence that Smith
[14]
Our case law has recognized that words disclosing adulterous conduct
can be sufficient provocation and has distinguished cases concluding that no
voluntary manslaughter charge was required or that the charge given was
adequate on the basis that no disclosure of adulterous conduct had occurred,
not that words can never play a role in supporting a voluntary manslaughter
instruction. In
Ware
, after reaffirming the general principle that words
disclosing adulterous conduct can be serious provocation, we distinguished
cases on the basis that they involved “statements by a victim that she wants
to end the relationship, is involved with or prefers the affections of another, or
even has chosen to leave the defendant for another — but that stop[ped] short
of disclosing extra-relationship sexual conduct[.]” 303 Ga. at 850-851 (III).
Ware
distinguished those cases because they did not involve any taunting or
bragging about adulterous conduct; indeed, many did not involve any
disclosures that immediately preceded the killing. See, e.g.,
Brown v. State
,
But at least one case cited in
Ware
is somewhat anomalous. In
Davis v.
State
, we observed that “there [was] no evidence the victim recounted her
adulterous conduct to Appellant or taunted him with descriptions thereof.” 290
Ga. 421, 424 (2) (
smirked at Allen when stating that there was “something going on” between Smith and Tia. This may not be the strongest or most compelling evidence, but again, only slight evidence is required for a jury instruction to be warranted.
The dissent oversimplifies its recitation of the factual basis of the deadly encounter and views the evidence only in the light most favorable to its conclusion. It does not look at the evidence reasonably as a whole. Instead, it focuses on whether Allen’s response to the situation was reasonable. But this question is for the jury, not judges, to decide.
The dissent fundamentally misunderstands this point. We are
not holding, as the dissent would suggest, that judges must give a
voluntary manslaughter charge any time someone claims
provocation. Under our decision today, our current legal framework
would still keep judges in their gatekeeping role, deciding whether
the alleged provocation is of the type that our case law has concluded
is “sufficient to excite” the “passion in a reasonable person[.]” OCGA
§ 16-5-2 (a). And as this opinion makes clear, the discovery of a
*36
partner’s adulterous conduct — whether in the act or through a
verbal disclosure — is the prototypical type of provocation that can
excite the passions of a reasonable person.
[15]
But our legal framework
makes clear that once a trial court performs its gatekeeping function
in determining whether there is slight evidence of serious
provocation, it is ultimately up to the jury to decide whether that
provocation was actually sufficient to excite a sudden, violent, and
irresistible passion in a reasonable person. See
Anderson
, 248 Ga. at
683 (3); see also Peter Westen & Frank G. Millard,
Individualizing
the Reasonable Person in Criminal Law
, 2 Crim. L. & Phil. 137, 156
(2008) (“The reason the law delegates final authority to jurors to
make policy decisions to mitigate murder to manslaughter is
precisely because the law believes that jurors, who are drawn at
random from the community, are better equipped than judges to
make such policy decisions.”); Kit Kinports,
Criminal Procedure in
[15]
Discovery of adulterous conduct is not the only type of provocation that
can constitute “serious provocation” under OCGA § 16-5-2 (a). See, e.g.,
Williams v. State
,
Perspective , 98 J. Crim. L. & Criminology 71, 131 (2007) (“[T]he concept of objective reasonableness is utilized both to reflect community values and to enforce uniform standards of behavior.” (footnote omitted)); Dolres A. Donovan & Stephanie M. Wildman, Is the Reasonable Man Obsolete?: A Critical Perspective on Self-Defense and Provocation , 14 Loy. L. A. L. Rev. 435, 448 (1981) (“[W]hen it was first introduced into the law of provocation, the reasonable man test was a devicе for delivering to the jury, in its role as the conscience of the community, the normative or value judgment as to the degree of moral culpability to be assigned to the particular offender.”). [16]
[16] The dissent rejects the notion that juries are to determine whether a provocation was reasonable or sufficient to reduce the offense from murder to voluntary manslaughter because the text of OCGA § 16-5-2 (a) suggests that juries are to assess only whether “an interval between the provocation and the killing” is “sufficient for the voice of reason and humanity to be heard[.]” But many defenses or claims of mitigation are properly left for the jury to resolve without express statutory language saying so. See, e.g., OCGA §§ 16-3-2 (a) (“A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.”); 16-3-4 (a) (“A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental *38 The dissent goes on to offer a parade of horribles that will flow from today’s decision. But none of those horribles follow from properly instructing a jury. Georgia law trusts juries. So should the dissent.
And, in any event, even if a jury were to convict someone of voluntary manslaughter in a case where we think murder would have been more appropriate, a voluntary manslaughter conviction is not an acquittal. It is a felony that carries a potential sentence of 20 years in prison (and any lesser sentence would be up to the judge, capacity to distinguish between right and wrong in relation to such act.”); 16- 3-21 (a) (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”); 16- 3-23 (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only” under certain enumerated circumstances).
*39 not the jury). 20 years in prison is a serious sentence for a serious crime.
In sum, our decision today rests on solid footing based on existing legal precedent. Under that case law, the trial court’s refusal to charge the jury on voluntary manslaughter was erroneous.
3. The State argues that any error was harmless. We disagree.
“A nonconstitutional error is harmless if the State shows that
it is highly probable that the error did not contribute to the
verdict[.]”
Smith v. State
,
The State has not carried its burden. The State primarily relies on the fact that Allen testified repeatedly that he was not angry but attacked Smith in self-defense after Smith hit him. Allen did testify that he was not angry, but he also repeatedly said that he was. These *40 conflicts are for the jury to resolve, not this Court. And although Allen’s self-defense claim was inconsistent with his argument that he was sufficiently provoked, Tia testified that Allen appeared to be “pretty angry” upon finding her and Smith and that Allen pounded on her car. This all happened before any physical interaction with Smith. Moreover, the video recording shows a nearly unrelenting attack on Smith, which included multiple kicks to Smith’s head. A jury could find that Allen’s actions as evidenced by the recording were consistent with the type of anger or rage that usually accompanies the type of passion a provoked defendant may experience and for which a voluntary manslaughter instruction is warranted. See Williams v. State , 306 Ga. 717, 721 (2) (832 SE2d 805) (2019) (noting that voluntary manslaughter requires that a defendant “was so angered that he reacted passionately,” not merely that the defendant “was attempting to repel an attack” (cleaned up)); 2 Wayne R. LaFave, Substantive Criminal Law § 15.2 (a) (3d ed. Oct. 2023 update) (noting that “[t]he ‘passion’ (emotionаl disturbance) involved in the crime of voluntary manslaughter is generally rage *41 (great anger)”).
As discussed above, the video recording is evidence of Allen’s
intent to kill, which is an element present in both malice murder
and voluntary manslaughter. In several cases, we have affirmed
malice murder convictions and concluded that the failure to charge
on voluntary manslaughter was harmless where there was strong
evidence that the killing was premeditated or there was a long
interval between the provocation and the killing. See, e.g.,
Heyward
v. State
,
But none of those circumstances are present here. There was no significant interval between the provocation and the initial attack on Smith. And the State presented no evidence supporting a theory of premeditation. Allen’s reasons for being at the gas station and just happening to come upon Smith and Tia are difficult to credit, but even a rejection of Allen’s explanation does not mean that he premeditated finding and killing Allen. Instead, a jury could conclude from the evidence that Allen was suspicious of Tia and followed her there to confirm (or dispel) his suspicions and reacted passionately to the totality of what he discovered there.
To be sure, in his initial statements to police and in his trial testimony, Allen did not provide a consistent story about his intent or about the level of anger he experienced as a result of seeing Tia *43 and Smith. The dissеnt does an excellent job pointing that out. If all we had to go by were those statements and testimony, we might agree with the dissent that there was no harm here. But the video recording also carries weight, perhaps more so because it presents irrefutable evidence. A jury would plainly be authorized to conclude from watching that recording that Allen was upset upon seeing Tia and Smith. He hit Tia’s car with his hand and then followed Smith. And as mentioned, it shows Allen’s rage as he mercilessly beat Smith.
The fact that Allen prioritized a self-defense claim does not
diminish the harm here. That defense was weak at best. The State
acknowledges as much. The dissent cites then-Presiding Justice
Nahmias’s concurrence in
McClure v. State
,
Presenting inconsistent defenses to the jury, particularly when the evidentiary support for one defense is considerably weaker than for others or where a defense is *44 contradicted by the defendant’s own account of events, risks losing credibility for all of the defenses.
Id. at 866 (Nahmias, P.J., concurring) (emphasis in original). That reasoning applies only when there is a stronger defense already that the new inconsistent defense would undermine. That is not this case; here, the video recording of the incident is perhaps the strongest piece of evidence in this case, and that recording points far more strongly to a claim of voluntary manslaughter than a self-defense claim. The trial court removed from the jury’s consideration the stronger of Allen’s defenses, and we cannot say that this was harmless. [17]
[17] One final point. The dissent notes that Allen rejected a pretrial voluntary manslaughter plea deal and, instead, focused at trial on self-defense as main defense. The fact that Allen received a plea offer undermines the dissent’s claim that no voluntary manslaughter charge was warranted, because prosecutors must have a factual basis for the plea in order to secure a conviction. See Oliver v. State , 308 Ga. 652, 654 (1) (842 SE2d 847) (2020) (“Uniform Superior Court Rule 33.9 provides that a trial court, before entering a judgment upon a guilty plea, must make an inquiry on the record as may satisfy the trial court that there is a factual basis for the plea.” (citation and punctuation omitted)). In any event, this fact is irrelevant to a harmlessness analysis because we must “assess the evidence from the viewpoint of reasonable jurors” to determine “whether it is highly probable that the error did not contribute to the verdict.” There is no indication the jury heard evidence that Allen rejected the plea offer.
In sum, there is evidence of what is universally considered serious provocation. Although there is very strong evidence that Allen intended to kill Smith, this evidence does not answer the question of whether that intent was the result of serious provocation such that he could be found guilty of the lesser offense of voluntary manslaughter. On this record, the State has failed to establish that it is highly probable that not a single juror would have found Allen guilty of voluntary manslaughter. Therefore, it cannot show that it is highly probable that the court’s error in failing to instruct the jury on voluntary manslaughter did not contribute to the verdict. Accordingly, we reverse Allen’s malice murder conviction.
Moreover, the fact that Allen rejected a plea deal shows nothing about his subjective assessment of the evidence, much less an objective one. The record indicates that the plea offer was “20 years to serve” for voluntary manslaughter. Although this is less than the maximum sentence for a murder conviction, it is the maximum sentence for voluntary manslaughter. See OCGA §§ 16-5-1 (e) (1) (“A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.”), 16-5-2 (b) (voluntary manslaughter conviction shall be “punished by imprisonment for not less than one nor more than 20 years”). Allen’s rejection of the plea more likely reflects his decision to take his chances at trial and possibly obtain an acquittal rather than face the certainty of a lengthy imprisonment.
Because the malice murder conviction is now reversed, the
felony murder counts based on aggravated assault and aggravated
battery are no longer vacated as a matter of law. But the failure to
give the voluntary manslaughter charge also affects these counts
under the reasoning of
Edge v. State,
Judgment reversed. All the Justices concur, except Boggs, C.J., and Ellington, LaGrua, and Colvin, JJ., who dissent.
B ETHEL , Justice, concurring.
I join the opinion of the Court because I believe it accurately gives effect to the directives of OCGA § 16-5-2 (a) (the voluntary manslaughter statute) and faithfully grapples with and applies our precedent. [18] Moreover, it has the added benefit of empowering juries, which seems to be the clear default of not only this statute but Georgia law generally. I also note my agreement with the dissent that, in determining whether a voluntary manslaughter instruction is warranted, the trial court serves as a gatekeeper, assessing both the quality of the evidence — that is, if the jury should be instructed to consider whether the defendant “act[ed] solely as the result of a sudden, violent, and irresistible passion” based on the character of the alleged provocation, see OCGA § 16-5- [18] The dissent suggests that I have articulated a different standard than the majority, though it does not explain this characterization. See Dissent at ___ n. 10. Contrary to this suggestion, I concur in full in the majority opinion and do not endeavor to articulate a different standard than the majority. Rather, as explained below, my focus in writing separately is to attempt to make sense of our precedent in a way that more fully captures our voluntary manslaughter statute and its application.
2 — and the quantum of such evidence, see Maj. Op. at ____ (noting that a defendant’s request for a jury charge on voluntary manslaughter must be granted if supported by any evidence, however slight).
In evaluating the quality of the evidence at issue here, the majority and the dissent, appropriately and understandably, turn to the underlying case law in an effort to discern whether the evidence adduced in this case authorized a jury charge on voluntary manslaughter. But it seems to me that this narrow focus comes at the expense of the requirements actually imposed by OCGA § 16-5- 2 (a), which speaks not in terms of infidelity but to the presence of a “sudden, violent, and irresistible passion resulting from serious provocation.” Thus, in my view, the work done by the majority and the dissent reveals that the underlying case law not only is inconsistent and confused, but that the case law also fails to provide clear guidance to the bench, the bar, and the balance of Georgia’s citizens. What follows is merely my attempt to make sense of what strikes me as a woeful tangle of decisional law.
Decisions applying the common law rule on infidelity leave me
with the strong impression that, as a historical matter, a defendant’s
discovery of his or her intimate partner engaged in sexual congress
with another has been accepted as obviously, and perhaps
inarguably, representative of the sort of provocation that could
overwhelm a reasonable person’s senses such that a jury should be
instructed on voluntary manslaughter and, potentially, a finding of
a lower degree of culpability.
[19]
Indeed, at common law, the ancestor
of our voluntary manslaughter statute, most cases appear to involve
marital infidelity. So it is no surprise that the common law rules
were generally couched in terms of the discovery or disclosure of
marital
infidelity. In determining whether a voluntary
manslaughter charge is appropriate, these “discovery in the act” fact
patterns draw, I believe, the first line. For instance, if a defendant
[19]
I note that this historic view of the shock associated with the discovery
of sexual infidelity may, for some, seem archaic and immaterial to the question
of reduced culpability for taking the life of another. Moreover, it seems patent
that this understanding of voluntary manslaughter is deeply rooted in a time
and culture where wives were not considered equals or peers, but something
more akin to property. But the wisdom of the rule is not at issue here.
*51
walks in on an event that could reasonably be understood as
tantamount to discovering an intimate partner engaged in sexual
congress with another, it is well settled that such circumstances are
sufficiently provocative in quality to warrant a voluntary
manslaughter charge. See, e.g.,
Richardson
,
These “discovery” cases then lead to “dramatic disclosure”
cases. In those cases, the defendant does not actually find his or her
intimate partner in the throes of interсourse or its equivalent, but
nevertheless learns that such an act “just then” occurred or
previously occurred. The circumstances of such disclosure can be
sufficiently shocking as to raise the question of whether a reasonable
person
might
be expected to have a passionate, emotional, and
violent response equal to the sort of response that would be evoked
by the discovery of the act itself. See, e.g.,
Lynn
,
Within these dramatic disclosure cases is where I find the *52 second line — and the one that applies in this case. As I understand it, where the totality of the evidence before the jury could support a finding that a defendant, in the moments immediately preceding the violence that led to a homicide, first learned that his or her partner had been sexually unfaithful — or learned of a circumstance that was of a similarly shocking and seriously provocative character— then the defendant is entitled to have a jury determine whether any sudden, violent, and irresistible passion flowing from that serious provocation was the sole cause of that defendant’s actions. [20] This understanding of the standard also strikes me as concordant with cases involving a shocking disclosure unrelated to sexual infidelity. See, e.g., Scott v. State , 291 Ga. 156, 157-158 (2) (728 SE2d 238) (2012) (considering the “cumulative effect” of appellant’s niece disclosing to him that the victim molested her, his sister’s refusal to believe her daughter, and the victim’s taunt regarding his [20] Obviously, it would not be enough to merely suspect one’s intimate partner of infidelity or to observe the partner in innocuous, nonetheless suspicious, behavior with another. Rather, the circumstances must be sufficiently serious to provoke a response on par with a shocking discovery or disclosure of sexual infidelity.
molestation of the child, and concluding that such evidence supported voluntary manslaughter charge).
In short, I think OCGA § 16-5-2 (a) authorizes a voluntary manslaughter charge where slight evidence shows that, immediately prior to the crimes, a defendant learned of shocking conduct — whether an act of infidelity or otherwise — and a jury could conclude that the shock of that discovery could so overwhelm a reasonable person that a lesser degree of culpability should be attached to his or her actions. [21] Thus, in determining whether to instruct the jury on voluntary manslaughter, a trial court would be [21] I am flummoxed by the dissent’s suggestion that the majority and I have articulated a standard that would require a voluntary manslaughter charge “in every domestic-violence related homicide case, regardless of whether the defendant said that he thought his partner had cheated on him just before the killing occurred and even if the evidence clearly shows that she had not.” And I reject the characterization that either the majority or I have articulated a standard that turns on whether a “defendant reasonably believed the deceased had at some point had sex with someone else.” A static belief that your intimate partner has “at some point had had sex with someone else” is not suggested as a basis for a charge. These are arguments against a standard I don’t see articulated in the majority or this concurrence. Rather, the question is clearly linked here and in the majority to the moments immediately following a shocking discovery or revelation. I’m simply not sure how to square this contention by the dissent. Either the defense can point to slight evidence of a serious provocation, or it cannot. It would be a wild departure from our practice to allow trial courts to withhold charges supported by slight evidence. *54 wise to focus its analysis to the quality of the evidence — that is, whether the provocation at issue is of such a quality as to warrant the instruction — and beyond confirming that slight evidence exists, resist the temptation to assess the sufficiency of the alleged provocation or the reasonableness of the defendant’s response to that provocation. And in close cases like this one, it seems that it would be prudent to err on the side of giving the requested instruction. [22]
[22]
While the dissent complains about the breadth of my reading of the
law, it seems to me that the dissent’s reading of that same law is too narrow.
Indeed, the dissent’s position attempts to reshape our shocking disclosure
precedent into merely another subset of sexual infidelity cases. But, it is not
merely sexual infidelity or taunting about sexual infidelity that has been
deemed sufficient to require a charge on voluntary manslaughter. See, e.g.,
Scott
,
B OGGS , Chief Justice, dissenting.
The majority’s expanded theory of voluntary manslaughter in
the context of this domestic violence-related murder has never been
the law in Georgia. For over a century, our precedent in this context
has held that for the circumstances to cause a reasonable person to
lose all self-control and thus warrant a charge on voluntary
manslaughter, the defendant must catch his significant other
actually in the act of sexual relations or in circumstances
“indicat[ing] with reasonable certainty to a rational mind” that
sexual intercourse had “just then” occurred.
Mays v. State
, 88 Ga.
399, 403-404 (
The facts, briefly, are as follows. Approximately two months before Appellant beat Treston Smith to death, Appellant heard that his fiancée Tia and another woman had been in a car with Smith after a party one night. Based on this rumor, Appellant confronted Tia and said if she was “messin’ around,” they should go their separate ways. Tia denied being with Smith. A few months later, Appellant stopped at a gas station, where tractor-trailers regularly parked, early one morning after work to adjust his rattling vehicle window. As he turned around behind the gas station, he saw Tia sitting fully clothed in the driver’s seat of her car during her normal commute time. Smith, with his back turned and fully clothed, was a few paces away from the car walking in the opposite direction. *57 Appellant hit Tia’s car window and cursed at her. Tia drove off without saying anything to Appellant. Appellant followed Smith, asking if something was “going on” between Tia and Smith. Smith сursed at Appellant, “smirked” at him, asked “what?”, and said that “something was going on between” Tia and Smith. Smith punched Appellant once; then Appellant beat and kicked Smith, left, and returned to kick Smith in the head as Smith remained motionless on the ground, ultimately killing him.
The majority’s view is that these circumstances reasonably
caused Appellant to believe that Tia had been unfaithful sometime
in the past and that our law accepts that the disclosure of sexual
infidelity is serious provocation that would excite a sudden, violent,
and irresistible passion in a reasonable person. The majority’s view
is wrong. Our case law has long held that for sexual infidelity to
warrant a voluntary manslaughter instruction, a defendant must
have caught his partner in the act of sexual intercourse or in
circumstances “indicat[ing] with reasonable certainty to a rational
mind” that his partner had “just then” had sex with someone else.
*58
Mays
,
1. The trial court properly refused to instruct the jury on
voluntary manslaughter.
A. What the controlling law is
OCGA § 16-5-2 (a) provides: A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
Contrary to the majority’s interpretation, the voluntary manslaughter statute does not say that “the jury in all cases shall be the judge” of the reasonableness of the killing of another person; it says that “the jury in all cases shall be the judge” of whether the *59 “interval” between the provocation and the homicide was “sufficient for the voice of reason and humanity to be heard.” OCGA § 16-5-2 (a). Otherwise, a trial court would be required to instruct on voluntary manslaughter in virtually every domestic-violence related homicide trial. This is not consistent with Georgia law.
The General Assembly has set forth the
legal
standard for
“serious provocation” that may mitigate a killing to the lesser
offense of voluntary manslaughter: “serious provocation” must be
“sufficient to excite [a sudden, violent, and irresistible] passion in a
reasonable person
.” OCGA § 16-5-2 (a) (emphasis supplied).
[23]
In
construing OCGA § 16-5-2 (a)’s language, we have consistently
reiterated that “it is a question of law for the courts to determine
whether the defendant presented any evidence of sufficient
[23]
A person convicted of voluntary manslaughter may be sentenced to as
little as one year imprisonment and to a maximum of twenty years
imprisonment, and, if sentenced to the maximum, may be considered for parole
after serving thirteen years. See OCGA § 16-5-2 (a); OCGA § 42-9-40; Ga.
Comp. R. & Regs., r. 475-3-.05 (10). Of course, murder is punishable by “death,
. . . imprisonment for life without parole, or . . . imprisonment for life,” OCGA
§ 16-5-1 (e) (1), and requires that a defendant serve a minimum of 30 years
before parole eligibility. See OCGA § 17-10-6.1 (c); OCGA § 42-9-39 (c).
*60
provocation to excite the passions of a reasonable person.”
[24]
Ware v.
State
,
(2023) (describing the objective voluntary manslaughter standard
where “the reasonable person remains our barometer” and “we put
aside any peculiar response the defendant may have had” (cleaned
up)). See also
Annunziata v. State
,
In setting forth the legal standard of serious provocation in the context of adultery, we have long held that
in order to reduce the crime from murder to manslaughter, it is necessary it should be shown that the prisoner found the deceased in the very act of adultery with his wife. I do not mean to say that the prisoner must stand by and witness the actual copulative conjunction between the guilty parties. If the prisoner saw the deceased in bed with the wife, or saw him leaving the bed of the wife, or if he found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, it will be sufficient to satisfy the requirements of the law in *63 this regard[.]
Mays
, 88 Ga. at 403 (cleaned up; emphasis supplied) (affirming
conviction for voluntary manslaughter where the defendant, upon
coming home one night, looked through a window, saw a naked man
step out of a bedroom in the defendant’s home, and fatally shot the
man). See also
Baker v. State
, 111 Ga. 141, 142-143 (36 SE 607)
(1900) (applying
Mays
’s standard to hold that no voluntary
manslaughter instruction was warranted, because the defendant
did not find “his wife in the very act of adultery, or under such
circumstances as to indicate that she had just committed the
adulterous act”). Mere suspicion or disclosure of past adultery is not
enough, and the majority fails to explain why the mountain of case
law contrary to its holding does not control the outcome here. See,
e.g.,
Tepanca v. State
, 297 Ga. 47, 49-50 (771 SE2d 879) (2015)
(holding that the trial court did not err in failing to instruct the jury
on voluntary manslaughter, because as a matter of law the
defendant’s “sexual jealousy was based wholly on supposition”);
Parks v. State
,
Additionally, words alone are generally not seriously
provocative. See
Rountree v. State
,
not entitled to a voluntary manslaughter instruction where his wife
told him that she was seeing someone else that she loved and that
she could no longer love the defendant. See
In short, the status of Georgia law completely disregarded by *68 the majority is that only after a trial court concludes that specific circumstances could constitute serious provocation as a matter of law does a jury decide whether the evidence supports the conclusion that a defendant was seriously provoked in a particular case. The trial court properly made that legal determination here.
B. What the controlling law is not
All the foregoing cases concern the role of judges as
gatekeepers in determining whether a voluntary manslaughter
charge must be given to the jury. See, e.g.,
Tepanca
,
[26] While the majority says that we should look to the text of a statute, and changes to the text, to determine a statute’s meaning, it implies that the
Moreover, the adultery cases that the majority cites do not
support its argument either.
Soto v. State
,
voluntary manslaughter only, because he became enraged after
seeing the woman he loved embrace and kiss another man. See id.
at 519. In holding that “it is for the jury to determine whether the
actions alleged to have provoked the defendant actually occurred
and whether these actions were sufficient provocation to excite the
deadly passion of a reasonable person,” id., we correctly refused to
second-guess the jury’s determination of the adequacy of the serious
provocation that the trial court determined was present. But
Soto
decided nothing about a trial court’s authority as an initial matter
to decide whether the evidence showed “serious provocation
sufficient to exсite such passion in a reasonable person.” OCGA § 16-
5-2 (a). Likewise,
Lynn v. State
,
The voluntary-manslaughter-instruction cases the majority
*73
cites fare no better. In
Clough v. State
,
[29] Despite our euphemistic language in Richardson , the appellate record in that case shows that the defendant stated she found her husband and the victim “having intеrcourse,” that her husband was “on top of” the victim, and that her husband “had his pants down.”
about Tia’s sexual infidelity, surely Ware did, too.
In addressing why Appellant’s belief was reasonable, the
majority asserts that Smith’s smirk constituted slight evidence of
taunting. A smirk does not even remotely rise to the level of
“taunting” about sexual conduct in the way that our mere-words
precedent uses that word. For example, we use the word “taunting”
to describe graphic descriptions of sexual intercourse with others,
see
Brooks
,
In conclusion, by relying on this inapposite case law, the *77 majority holds that Appellant was entitled to a voluntary manslaughter instruction because a reasonable person could conclude under the circumstances that Appellant reasonably believed Tia and Smith had, at some time prior to the killing , had sex. The majority’s new standard has the practical effect of transforming the legal question of what constitutes serious provocation into a factual one that a jury resolves and thus eliminating the role of a trial judge to decide questions of law. [30] This new standard is such a low one that it basically does not exist at all.
C. How the majority’s view makes Georgia an outlier The majority’s new standard also makes Georgia an outlier among our sister states, which require more than a reasonable belief [30] On this same point, the concurrence’s suggestion that a “sufficiently shocking” “dramatic disclosure” can warrant a voluntary manslaughter charge finds no support in our case law and is equally as broad as the majority’s new standard. Additionally, I do not see how that standard is useful to a trial court that is trying to decide whether an instruction is warranted during the heat of a charge conference. Finally, the concurrence’s advice to trial courts not to “assess the sufficiency of the alleged provocation or the reasonableness of the defendant’s response” runs contrary to the plain language of OCGA § 16-5-2 (a) and our longstanding case law requiring trial courts to determine as a matter of lаw whether the alleged serious provocation is sufficient to excite a sudden, violent, and irresistible passion in a reasonable person.
that a partner has been sexually unfaithful at some prior time in
order to warrant a voluntary manslaughter instruction. See
State v.
Simonovich
,
manslaughter, but it is not generally manslaughter where the passion is based on mere suspicion[.]”). See also 2 Wharton’s Criminal Law § 22:5 (16th ed. Sept. 2023 update) (“In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate.” (cleaned up)); Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man , 106 U. P A . L. R EV . 1021, 1023 (1958) (observing 60 years ago that “the criminal courts refuse to consider the application of a subjective test in determining the adequacy of provocation” (cleaned up)).
This new standard also departs significantly from the common law. See Manning’s Case , 83 Eng. Rep. 112, 112 (1671) (holding that a defendant committed voluntary manslaughter when the defendant killed the victim upon discovery of the victim “committing adultery with his wife in the very act”); 2 Wharton’s Criminal Law § 22:11 (16th ed. Sept. 2023 update) (observing that “a bare suspicion of the spouse’s adultery was not deemed adequate provocation” at common *81 law (cleaned up)); 4 William Blackstone, Commentaries on the Laws of England 191-192 (noting that a defendant who “takes another in the act of adultery with his wife, and kills him directly upon the spot” committed common-law voluntary manslaughter); 1 Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 486 (1736) (“A. commits adultery with B. the wife of C. who comes up and takes them in the very act, and . . . kills the adulterer upon the place, this is manslaughter[.]”). Cf. also Regina v. Kelly , 175 Eng. Rep. 342, 342 (1848) (explaining that a husband killing his wife merely because he suspected her of adultery, no matter how strong his suspicion, is murder).
D. Why the facts here do not require a voluntary manslaughter charge
The majority describes what Appellant saw as a compromising
situation that prompted a reasonable belief of Tia’s sexual infidelity. Catching a partner in a
compromising situation
is not the applicable
standard, even if the situation raises suspicions in one’s mind as to
the partner’s faithfulness. As explained above, the “compromising
*82
situation” language appears in a portion of
Goforth
where we
discussed the constitutional sufficiency of the evidence of the
defendant’s malice murder conviction. See
In addition, words alone, let alone Smith’s smirk or Tia’s
allegedly guilty facial expression, do not constitute serious
provocation. See
Ware
, 303 Ga. at 850 (“We have long held that
words alone, regardless of the degree of their insulting nature, will
not in any case justify the excitement of passion so as to reduce the
crime from murder to manslaughter where the killing is done solely
on account of the indignation aroused by use of opprobrious words.”
(cleaned up)). Smith’s comments to Appellant — “f**k you,” “what?”,
*84
and “something was going on between” Tia and Smith — do not come
close to fitting the words-alone exception because Smith did not
tauntingly detail Tia and Smith’s sexual encounters to Appellant.
See
Ware
,
Lastly, adding the words and conduct together leads to no
different result. No one ever told Appellant that Tia and Smith had
sex, Appellant did not see them having sex, and seeing Smith, fully
clothed, walking near Tia’s car would not indicate with reasonable
certainty that they had just finished doing so. As a matter оf law,
Appellant was not entitled to a voluntary manslaughter instruction.
See, e.g.,
Tepanca
,
To see the practical and concerning results of the majority’s view, consider these two hypotheticals. Suppose that Vickie and Daryl have been dating for a few months. Daryl is quite the jealous type. He learns that Vickie has an assigned cubicle at work next to a male co-worker named Leonard. Daryl asks Vickie if she is carrying on an affair with Leonard, and Vickie says that she is not. Later that year, Vickie’s office hosts a holiday party. At the party, Daryl walks across the ballroom to get a drink while Vickie freshens up in the restroom. Daryl waits in line and, a few minutes later, turns around to see Vickie returning from the hallway leading to the restroom, walking with Leonard, and laughing. Bursting with rage, Daryl yells at Vickie, asking what she was doing in the restroom. Fearful for her life, Vickie runs. Daryl assumes that if she is running from him, she must be guilty of sexual infidelity. He chases her down, tackles her, and strangles her to death. According to the *88 majority, these facts would demand a jury charge on voluntary manslaughter because a jury could find that Daryl might have reasonably believed Vickie had sex with Leonard at some time before the killing. That result, contrary to a century of precedent, establishes a concerning course in a country where approximately 34% of female murder victims are killed by their intimate partners. See Erica L. Smith, Female Murder Victims and Victim-Offender Relationship, 2021 , Bureau of Justice Statistics (Dec. 1, 2022), https://bjs.ojp.gov/female-murder-victims-and-victim-offender- relationship-2021. See also Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill , 2 S. C AL . R EV . L. & W OMEN ’ S S TUD . 71, 91 (1992) (observing that “[a]pproximately 60% of men who kill their wives allege that she was sexually unfaithful” (cleaned up)).
Similarly, assume the same facts except that Daryl does not go
to the holiday party. Instead, Vickie attends alone and, in a moment
of romantic intrigue, has sex with Leonard. The next day, Vickie
confesses to Daryl that she has cheated on him. Daryl becomes
*89
enraged and fatally shoots her on the spot. According to the
majority, Daryl should receive a voluntary manslaughter
instruction because Vickie disclosed her sexual infidelity. But see
Ware
,
In sum, the trial court properly refused to instruct the jury on voluntary manslaughter based on our longstanding precedent, and I cannot endorse the majority’s newly created and broad standard effectively relegating all future domestiс violence-related murders to voluntary manslaughter upon the notion that some jury may believe, based wholly on supposition, that the defendant reasonably believed the deceased had at some point had sex with someone else. For trial courts across this State, the lesson to learn from the majority opinion (and the concurrence) is that a voluntary manslaughter instruction should be given in every domestic-violence related homicide case, regardless of whether the defendant said that he thought his partner had cheated on him just before the killing *90 occurred and even if the evidence clearly shows that she had not. [32]
2. Any instructional error was harmless.
Moreover, even if everything that the majority says about voluntary manslaughter is right, which it most assuredly is not, I would still affirm because it is highly probable that any instructional error did not contribute to the verdict. See Hatney v. State , 308 Ga. 438, 441 (841 SE2d 702) (2020). The State introduced strong evidence of malice murder and aggravated assault; Appellant’s testimony was contradicted by his statement to police and by the video evidence presented at trial; and Appellant’s own version of events contradicted voluntary manslaughter. When determining whether a nonconstitutional error was harmless, we weigh the evidence as reasonable jurors, not by asking what a single juror may have thought about the evidence. See id. Although Appellant claimed at the beginning of his interview with the police a few hours [32] I also note that the concurrence’s standard differs from that of the majority; thus, it appears that the majority’s novel standard only garnered the approval of a plurality of this Court.
*91
after the homicide that he did not know what happened,
[33]
he went
on to describe in detail what did. For example, Appellant recounted
the time that he left work, the places he drove, the reason why he
stopped at the gas station, and his conversation and altercation with
Smith. Appellant maintained in his interview that he went home
before driving to the gas station, but at trial on direct examination,
he contradicted himself, claiming that he drove toward his home but
turned around before arriving there. Appellant even told police that
he did not “really care about what [Tia and Smith] had going on” but
was upset that he had been deceived. And when police asked
Appellant about Smith’s reaction and if “the way [Smith] was acting
toward[ ] [Appellant] like, kind of fueled [him] even more,” Appellant
said, “No,” that he was just “hurt,” that he “want[ed] answers,” and
[33]
In context, this statement is better understood to mean that Appellant
did not know how Smith died — not that he couldn’t remember beating and
kicking Smith to death. Compare
Scott
, 291 Ga. at 157-158 (holding that a
voluntary manslaughter instruction was warranted where, among other
evidence, the defendant “stated he ‘lost it,’ ‘blacked out,’ and started shooting”).
Moreover, I doubt that memory loss, by itself, strongly supports voluntary
manslaughter. See
Mobley v. State
,
*92 that Smith was being “disrespectful” to him. See id. at 440-442 (reasoning, when explaining the harmlessness of an assumed error based on failure to instruct on voluntary manslaughter, that the defendant’s self-described motives were “more demonstrative of deliberation than irresistible passion”). And Appellant did not mention in his interview with police that Smith stabbed him; he only claimed that at trial.
Furthermore, at trial when defense counsel asked Appellant if he saw “someone get out of [Tia’s] car” when he drove behind the gas station (which Appellant claimed he “usually” did), [34] Appellant testified, “I seen like he — Yes, sir.” But, surveillance videos flatly showed that Smith was already out of Tia’s car and walking away when Appellant drove behind the gas station, and Appellant told police during his interview that Smith “wasn’t in the car.” Appellant went on in his testimony to deny running after Smith and kicking [34] The jury had before it photos of the gas station, which showed that the gas station had two driveways off the road that allowed a person to enter the property at one driveway, drive between a set of gas pumps and the front of the store, and exit using the next driveway. Thus, driving behind the gas station to exit was unnecessary.
*93 Smith in the face or head, despite surveillance videos and medical evidence plainly showing otherwise. And the jury heard evidence that after brutally beating Smith, kicking Smith in the head with steel-toed boots, and recognizing that Smith was unconscious, Appellant got into his vehicle, started to drive away, stopped, backed up, got out, and returned to kick Smith more. He did not call 911 to request medical attention for Smith or ask the gas station owner to do so.
Shortly after the killing, Appellant called family members to tell them that he “got in a fight.” He did not, by contrast, tell them that he found Tia and Smith together immediately after they had sex, became homicidally angry, and had since calmed down. Compare Scott , 291 Ga. at 157-158 (focusing on evidence that the defendant said he “lost it” and “blacked out” at the time of the homicide, when holding that the trial court should have instructed the jury on voluntary manslaughter (cleaned up)). Nor did he tell them that Smith needed medical attention. Then, a few weeks later in jail, Appellant called a woman he described at trial as “[j]ust a *94 friend” of his from before the killing. On the jail call, which the State played at trial, Appellant referred to the woman as “baby,” asked her to send him pictures, and made sexually suggestive remarks. The call destroyed Appellant’s credibility because it suggested to the jury that Appellant had been sexually unfaithful to Tia, notwithstanding his claims at trial that he was working to improve their relationship and that Tia’s conduct hurt him. The upshot of weighing all these contradictions is that reasonable jurors would have disregarded Appellant’s story because it so wholly and unreasonably contradicted other evidence.
Lastly, even setting aside everything I just said about the
unbelievability of Appellant’s story and assuming that the jury
credited his version of events, his own testimony singularly
foreclosed the harmfulness of any error. He rejected a pretrial
voluntary manslaughter plea deal, and consistent with that
rejection, his testimony at trial focused on self-defense as his main
defense. Cf.
McClure v. State
,
you angry?” This time, Appellant said that he was but —
inconsistent with voluntary manslaughter — downplayed it: “I
wasn’t like angry like vicious mad. I was just angry like asking
questions.” And Appellant did so when he still anticipated that the
trial court would instruct on voluntary manslaughter. Weighing all
the evidence as reasonable jurors would, I conclude that it is highly
probable that the jury would still have found Appellant guilty of
murder even if the trial court had given the requested jury
instruction on voluntary manslaughter. See
Hatney
,
I am authorized to state that Justices Ellington, LaGrua, and Colvin join in this dissent.