Georgia Supreme Court: Discovery of Common Law Wife’s Infidelity Entitled Defendant to Voluntary Manslaughter Instruction in Malice Murder Prosecution
by Sam Rutherford
The Supreme Court of Georgia held that the trial court erred in refusing to give the jury a lesser included offense instruction of voluntary manslaughter in a prosecution for malice murder where the evidence showed that the killing was in response to the defendant discovering his common-law wife’s infidelity with the victim. This error was not harmless, so the Court ordered a new trial.
Background
Sherman Lamont Allen and Tia Allen were in a common law marriage. They had lived together for several years, raising Tia’s son from a prior relationship, and had two children of their own. Sherman heard a rumor that Tia was having an affair with his cousin, Treston Smith. Sherman confronted Tia about the rumor, but she denied it.
At around 3:00 a.m. on March 16, 2017, Sherman left work and began driving home. He stopped at a gas station. Sherman drove around the rear of the gas station where he noticed Tia’s car and Smith’s tractor-trailer. Sherman witnessed Smith exiting Tia’s car. He walked up to the driver-side window, slammed his hand on the glass and said, “Bitch, what you think you doing?” Tia immediately drove off.
Sherman then approached Smith as he was getting into his tractor-trailer and a fight ensued. The gas station’s video surveillance system captured some of the altercation but not the beginning of the fight. The video showed Smith on the ground as Sherman beat and kicked him with steel-toed boots. The owner of the gas station, who called 911, testified that he witnessed Sherman drag Smith from his tractor-trailer, beat him to the ground, and repeatedly kick him in the face.
Sherman testified in his own defense. He stated that he approached Smith as he was about to enter his tractor-trailer and asked him why he was trying to destroy his family when Smith had one of his own. The two spoke for several minutes, but all Smith would say in response to Sherman’s questions was “man, fuck you” with a smirk on his face. Sherman said that Smith punched him “dead in my face,” and they went to the ground where Sherman put Smith in a chokehold. When Sherman stood up to leave, Smith stabbed him in the leg with a small knife, so the two men began fighting again. Sherman got the better of Smith, took the knife from him, and got up to leave. However, Sherman admitted that as he was driving away, he stopped to get out and kick Smith some more because he was angry that he’d been stabbed.
The medical examiner testified that Smith was pronounced dead at the scene from blunt-force trauma to his face and head. Smith’s front was covered in dirt, with gravel imbedded in his face, mouth, and tongue, but his back was not. Smith’s “head had a lot of swelling and bruising, lacerations, and scrapes, abrasions,” but he did not have “much in the way of injury on his body below [his] head.”
Sherman turned himself into police that same morning and gave a statement in which he described discovering Tia and Smith together. He said he was angry about the infidelity but that he did not intend to kill Smith. Sherman was charged with one count of malice murder, two counts of felony murder, two counts of aggravated assault, and one count of aggravated battery. His defense attorney requested a lesser-included offense instruction of voluntary manslaughter, but the trial court refused to give it. The court reasoned that Sherman was not entitled to the instruction because voluntary manslaughter requires an intent to kill, but he had testified that he acted in self-defense and did not mean to kill Smith.
The jury convicted Sherman as charged, and he was sentenced to life in prison without parole for the malice murder conviction. The trial court dismissed the other convictions for felony murder and assault as merging with the malice murder conviction. The sole issue on appeal was whether the trial court erred in refusing to give the jury a lesser-included offense instruction on voluntary manslaughter.
Analysis
The Court noted that Georgia case law requires a trial court to grant a 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, 892 S.E.2d 737 (Ga. 2023). “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.” OCGA § 16-5-2 (a).
Georgia courts have long held that discovering an intimate partner’s infidelity is generally sufficient provocation to warrant giving a voluntary manslaughter instruction. See Mays v. State, 14 S.E. 560 (Ga. 1891); Stevens v. State, 73 S.E. 737 (Ga. 1912); Soto v. State, 813 S.E.2d 343 (Ga. 2018). The defendant need not be married to either of the adulterers to be entitled to the instruction. Goforth v. State, 523 S.E.2d 868 (Ga. 1999). The defendant need not catch his or her intimate partner in the “adulterous act” to be entitled to the instruction; finding the intimate partner with another person ““in such a position as to indicate with reasonable certainty, to a rational mind, that they had just” committed adultery is sufficient. Mays. And while words alone are almost never sufficiently provoking, words that disclose an adulterous act of a partner can be. Lynn v. State, 765 S.E.2d 322 (Ga. 2014).
Combining the legal principles from the foregoing cases into a unified rule of law, the Court declared that “a defendant’s discovery of a partner’s sexual infidelity can be the sort of provocation necessary to authorize a voluntary manslaughter charge. Sometimes that discovery may be a personal, first-hand observation of catching one’s partner in the act; other times, it may be from being told about the infidelity after the fact.”
Under this test, the Court determined that Sherman was clearly entitled to the lesser-included offense instruction. He was told several months previous to the killing that Tia and Smith were having an affair. She denied the allegation, and Sherman accepted her denial. But then, he caught them alone together, late at night, in an isolated location that clearly indicated the allegation against Tia was true.
“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,” the Court stated. That is all Sherman was required to establish in order to obtain an instruction on voluntary manslaughter. Whether this evidence is sufficient to justify a conviction of voluntary manslaughter based on provocation instead of malice murder “is generally for the jury to weigh and decide, not the trial court.” Clough v. State, 783 S.E.2d 637 (Ga. 2016).
The State attempted to avoid this conclusion by arguing that Sherman was not entitled to the instruction because he argued that he acted in self-defense and therefore did not intend to kill Smith. Although acknowledging that intent to kill is an element of voluntary manslaughter, Sherman was nonetheless entitled to the instruction because evidence presented at trial clearly undermined his self-defense claim, such as the surveillance video and medical examiner’s testimony. Because “there was at least slight evidence of provocation to support a voluntary manslaughter claim … the court was required to give the instruction despite Allen’s main theory that he acted in self-defense,” the Court explained.
In other words, Sherman was entitled to submit conflicting defense theories to the jury supported by proper jury instructions, so the jury, not the court, could resolve any discrepancy between the defense theories. The trial court’s sole responsibility is to act in a “gatekeeping role” to determine whether the defendant has presented “slight evidence” of the type of provocation Georgia case law has recognized as requiring a voluntary manslaughter instruction. The Court concluded that Sherman easily met that standard here, and the trial court erred by refusing to provide the requested instruction.
The Court reasoned that the trial court’s error, which the Georgia Supreme Court phrased as “nonconstitutional error,” was not harmless because the State failed to show “that it is highly probable that the error did not contribute to the verdict.” Smith v. State, 872 S.E.2d 262 (Ga. 2022). Although there was evidence presented at trial tending to show Sherman killed Smith without provocation or passion stemming from his discovery of the affair, there was also substantial evidence that this was exactly the reason for the fight leading to Smith’s death. Moreover, the State presented no evidence supporting premeditation. Thus, the Court concluded that it was highly probable that the jury would have returned a guilty verdict on the manslaughter charge instead of malice murder had an appropriate instruction been given.
Finally, the Court addressed the correct remedy on remand concerning Sherman’s other convictions for felony murder and assault that had been dismissed after trial as merging with the malice murder conviction. These charges, the Court instructed, could be revived and reinstated on remand, but Sherman would be entitled to a voluntary manslaughter instruction related to them as well. See Edge v. State, 414 S.E.2d 463 (Ga. 1992).
Conclusion
Accordingly, the Court reversed Sherman’s conviction and remanded the case for a new trial in which he will be entitled to a jury instruction on the lesser included offense of voluntary manslaughter. See: Allen v. State, 902 S.E.2d 615 (Ga. 2024).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login