Ware v. StateWare v. State
Appellant Robert Ware was found guilty of felony murder and other crimes in connection with the December 2015 shooting death of his wife, Michelle Ware.1 On appeal, Ware asserts that the evidence at trial was insufficient to support his felony murder conviction, and that the trial court erred in denying his request for a jury instruction on voluntary manslaughter and in allowing the State to introduce a piece of “other acts” evidence under
I.
After Ware fled, Michelle‘s nineteen-year-old daughter (Ware‘s stepdaughter), who was also at the residence at the time of the shooting, found Michelle lying on the floor, bloodied and unresponsive. Michelle‘s older daughter called 911 and tried, unsuccessfully, to resuscitate her mother. When police arrived, the older daughter told them that Ware had killed her mother, and police issued a “be on the lookout” for Ware.
Ware admitted to the jury that he shot and killed Michelle after she told him that she was seeing someone else whom she loved. He also testified that about two months before the shooting, he saw Michelle hug and kiss another man at her place of employment. And he told the jury that about a month later, he had discovered a receipt from a Florida hospital under the mattress that he and Michelle shared, but that he had been unaware that Michelle had traveled to Florida. According to Ware, when he confronted Michelle about the Florida receipt, she said “it‘s nothing.” Later, in an unprompted conversation, Michelle said that when she went to the hospital in Florida, she was prescribed something that caused her to have “female issues,” and she asked Ware if he had been having any issues “downstairs.” These events led Ware to doubt Michelle‘s fidelity. Ware‘s neighbor also testified that Ware had periodically shared his suspicion that Michelle was cheating on him, and had said a few
II.
Ware argues that the evidence supporting his felony murder conviction is insufficient because he acted on impulse and in the heat of passion when Michelle told him that their relationship was over and that she loved another man, thus showing a lack of evidence that he intended to kill her. This argument is meritless and misplaced. Felony murder does not require intent to kill; rather, “[f]elony murder requires only that the defendant possessed the requisite criminal intent to commit the underlying felony“—in this case, aggravated assault, which also does not require intent to kill. Chapman v. State, 275 Ga. 314, 316 (565 SE2d 442) (2002). And in any event, “[c]riminal intent is a question for the jury and may be inferred from conduct before, during and after the commission of the crime.” Glenn v. State, 279 Ga. 277, 277-278 (612 SE2d 478) (2005) (citation and punctuation omitted). Given Ware‘s admission at trial that he shot and killed Michelle, his prior statements that he suspected her of “cheating on him” and that he had “almost” shot and killed
III.
Perhaps more relevant to his claims that he acted out of passion, Ware argues that the trial court erred in denying his request for a jury instruction on voluntary manslaughter. Still, we disagree.
Voluntary manslaughter is the killing of another human being under circumstances that would otherwise be murder when the killer “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.”
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.‘” Brooks v. State, 249 Ga. 583, 585 (292 SE2d 694) (1982) (quoting Coleman v. State, 149 Ga. 186, 188 (99 SE 627) (1919)) (punctuation omitted; emphasis in original); see also Paul v. State, 274 Ga. 601, 605 (555 SE2d 716) (2001); Pace v. State, 258 Ga. 225, 226 (367 SE2d 803) (1988). We have recognized, however, a limited exception to this rule for words informing a defendant of “adulterous conduct.” Brooks, 249 Ga. at 586. In that one circumstance, we have held that words alone may constitute the “serious provocation sufficient to excite” a “sudden, violent and irresistible passion” sufficient to require a jury charge on voluntary manslaughter. Id. (citation and punctuation omitted).
In Brooks, for example, we found that because the victim taunted her husband “with a graphic description of her sexual activities with other men,”
But as those cases and other decisions of this Court have made clear, in order for the conduct communicated by such words to “amount to the sort of provocation necessary to reduce a murder to manslaughter,” Lynn, 296 Ga. at 111, they must disclose adulterous conduct or, in the case of unmarried persons, sexual relations with other persons during the course of a relationship. See, e.g., Brown v. State, 294 Ga. 677, 681 (755 SE2d 699) (2014); Strickland v. State, 257 Ga. 230, 231-232 (357 SE2d 85) (1987); Brooks, 249 Ga. at 585. Conversely, 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 short of disclosing extra-relationship sexual conduct—have never been deemed sufficiently provocative to excite sudden, violent, and irresistible passion in a reasonable person such that a
In Brown, for example, the defendant argued that the trial court erred when it refused to give a jury instruction on voluntary manslaughter based on sexual jealousy after the victim told the defendant, her lover, that she was angry at him and was returning to her estranged husband. 294 Ga. at 680-681. We rejected this argument because “[a]lthough it has been held that adulterous conduct together with words can support an instruction on voluntary manslaughter,” there was no evidence that the victim “taunted” the defendant or that she had recently engaged in “sexual relations” with her out-of-state husband. Id. at 681. Similarly, in Mayweather, we held that the trial court did not err in failing to charge the jury on voluntary manslaughter because the victim‘s statement to the defendant “that she had been out with another man on the previous night” and that she had “been with another man” were insufficient provocation to support a manslaughter charge. 254 Ga. at 661.
We have applied the same rationale in rejecting claims where defendants complained that juries were erroneously instructed that words alone were insufficient provocation to support a verdict for voluntary manslaughter in the face of evidence of victims’ apparent romantic involvement with other men.
Here, Michelle‘s statements, “Robert, I‘m seeing somebody else that I‘m in love with,” and “It‘s not going to work between us because I can‘t love you no more,” were not sufficiently provocative to excite “sudden, violent, and irresistible passion” under
IV.
Ware‘s final contention is that the trial court erroneously admitted evidence of a 1999 incident of domestic violence under
Judgment affirmed. All the Justices concur, except Blackwell, J., who concurs in judgment only as to Division III.