William Burke appeals his convictions for felony murder and possession of a firearm during the commission of a felony, charges stemming from the death of Andrew Daly.
The victim in this case was the boyfriend of Burke’s ex-girlfriend and landlord, Evangeline Sotus. Burke and Sotus had a long-term romantic involvement before breaking up in early 2011. Sotus testified that she was concerned about Burke’s belligerence when he drank. After their break-up, Burke moved into the top level of Sotus’s home. In the summer of 2012, Sotus met Daly, and the two became romantically involved. Sotus observed that the two men were civil to one another.
On November 20,2012, Sotus traveled to New York. She informed Burke that Daly would be checking on her cats and had permission to be in the house. Burke and Daly apparently continued to be civil to one another; Daly even made breakfast for Burke the morning of November 25.
In phone conversations with Sotus later that day, Burke seemed to be intoxicated. At one point, Burke called Sotus and informed her that his ex-wife had died. She urged Burke to sober up, leading Burke to become belligerent and call and text her repeatedly. Sotus called Daly and warned him to stay away from her house, but Daly did not seem concerned, and said he wanted to go there to do laundry.
Meanwhile, Burke posted on Facebook that Sotus “was a total waste” when he needed her and that her boyfriends should “watch out.” Burke called a friend, Gerald Landers, who noted that Burke seemed extremely intoxicated. Burke cut off their conversation, indicating that he had an unexpected visitor; Landers heard Burke say, “Who’s there, who’s there.”
The lower-level tenant of Sotus’s house, Valetta Anderson, heard footsteps above, then arguing and shouting. Anderson heard someone other than Burke say “motherf***er.” She heard a “pop” sound, then someone falling. Burke promptly knocked on Anderson’s door and asked her to accompany him upstairs to the main level, where she saw Daly lying on the floor. Burke told Anderson that Daly “came at” him and asked her to call 911.
Police who arrived at the home found Daly dead of a gunshot wound to the head. They observed nunchucks on the kitchen table and found a loaded revolver (that belonged to Sotus) underneath Daly’s body. Burke told police, “I didn’t mean to. He threatened me with some nunchucks.” Law enforcement found another gun lying on a bed in Burke’s apartment.
1. Although Burke does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to review the record independently to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Burke was guilty of the crimes for which he was convicted. See Jackson v. Virginia,
2. Burke argues that the trial court committed plain error by limiting the jury’s consideration of voluntary manslaughter, such that it could find it a lesser included offense of only malice murder. We disagree.
The State requested a jury charge on voluntary manslaughter as a lesser included offense. Burke objected to the requested instruction, arguing that the State should not have charged him with malice murder and felony murder if it did not think it could convict him of those charges. The trial court agreed to give the voluntary manslaughter instruction, telling jurors:
A person commits voluntary manslaughter when that person causes the death of another human being under circumstances that would otherwise be murder if that person 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. If there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, which the jury in all cases shall decide, the killing may be attributed to revenge and punished as for murder.
The court read that instruction after the malice murder charge but before the felony murder and aggravated assault charges. The verdict form clearly limited the jury’s consideration of manslaughter to the malice murder charge, giving the options of “Not Guilty,” “Guilty,” and “Guilty, of the Lesser Included Charge of Voluntary Manslaughter” under the malice murder count but listing only “Not Guilty” and “Guilty” options under the other counts. During deliberations, the jury asked, “Are voluntary manslaughter and aggravated assault/felony murder mutually exclusive?” The trial court responded, “[N]o. You should consider each count.”
In his amended motion for new trial, Burke contended that the jury should have been able to consider whether the charged aggravated assault was provoked, thus mitigating the felony murder count to voluntary manslaughter. He also argued that the trial court’s error in presenting the jury with a verdict form that precluded it from considering voluntary manslaughter as an alternative to the felony murder count exacerbated the trial court’s erroneous jury instruction. The trial court rejected that argument, concluding that a voluntary manslaughter charge was not supported by the evidence — and thus should never have been given at all — and that the jury’s rejection of voluntary manslaughter as an alternative to malice murder meant that it also would have rejected that option if it had been given as an alternative to a felony murder conviction. Conceding that he did not object to the trial court’s failure to instruct the jury that it also could consider voluntary manslaughter as a lesser charge to felony murder or to its predicate
“[A] failure to charge amounts to plain error only to the extent that the failure to charge was erroneous, the error was obvious, the failure to charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Shaw v. State,
Burke points to evidence that he was distraught and angry on the night of the shooting for various reasons, including the death of his ex-wife and his argument with Sotus, when Daly appeared and twice called him a “motherf***er” in his own home. But, “[a]s a matter of law, angry statements alone ordinarily do not amount to ‘serious provocation’ within the meaning of OCGA § 16-5-2 (a).” Merritt,
Burke also argues that the uncertainty regarding the reason for Daly’s visit the night of his death, as well as uncertainty regarding the origin of the nunchucks and other firearm, would have supported a voluntary manslaughter charge. But acting out of fear of bodily harm is not the same as acting
Burke contends that the trial court’s conclusion (in rejecting his motion for new trial) that a voluntary manslaughter instruction was not warranted at all was unfair given that the State had asked for the instruction and the trial court in giving the charge had agreed with the State that the evidence was sufficient to support such a charge. We find this argument unavailing. Even if the State were somehow estopped from arguing that an instruction that the State itself requested was not warranted, we can reverse Burke’s conviction under plain error review only if the alleged errors in the trial court’s instructions “likely affected the outcome of the proceedings!)]” Shaw,
3. Burke raises as a separate enumeration of error the trial court’s provision of a jury form that precluded the jury from considering voluntary manslaughter as an alternative to the felony murder count. Burke did not object to the verdict form and implicitly concedes that his claim of error regarding the form is subject to only plain error review. See Harvey v. State,
Judgment affirmed.
Notes
Daly was killed on November 25, 2012. Burke was indicted on February 14, 2013, for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of afelony. An August 2014 trial resulted in a mistrial when the jury could not reach a unanimous verdict. Burke stood trial again from September 29 to October 3, 2014, and was acquitted of malice murder but found guilty of the other counts. The trial court sentenced Burke to life for the felony murder conviction plus a five-year consecutive sentence for the firearm possession count, merging the aggravated assault count into the felony murder count. Burke filed a motion for new trial that he later amended. The trial court denied the motion on October 11, 2016. Burke filed a timely notice of appeal, and the case was docketed to the August 2017 term and submitted for decision on the briefs.
Although Burke declined to testify at his first trial, he took the stand at the retrial.
We since have clarified that the referenced instruction called for in Edge is not required and that, although a trial court must instruct the jury that it must consider whether passion or provocation mitigates the killing before making a decision on felony murder, there is no error in failing to charge that a finding of passion or provocation precludes a finding of guilt on felony murder. See Terry v. State,
Given our conclusion under the plain error framework, we find it unnecessary to consider the State’s argument that Burke affirmatively waived his argument by objecting to a voluntary manslaughter instruction being given at all.