SCOTT v. STATE (2012)

Appellant Steven Scott was convicted of felony murder, aggravated assault and possession of a firearm during the commission of a crime in connection with the shooting death of Dan Smith, the boyfriend of Scott's sister.¹ He appeals from the denial of his motion for new trial, contending the trial court erred by excluding from trial evidence that the victim had been molesting appellant's niece and refusing to charge the jury on the lesser included offense of voluntary manslaughter. For the reasons that follow, we reverse.

1. Viewed in the light most favorable to the verdict, the evidence authorized the jury to conclude that on the day of the crimes appellant's 16–year old niece told him she had been molested by the victim. Appellant walked to a convenience store to get a beer, which he stated calmed him down, then returned home to continue talking to his niece. When the child's mother and the victim arrived to pick her up, the child, her mother, and appellant went inside the house to talk privately. Minutes later, appellant exited the house, asked the victim why he did it, and fatally shot the victim as he sat in his car. We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred by refusing to charge the jury on the lesser included offense of voluntary manslaughter. Voluntary manslaughter occurs when one kills another human being under circumstances which would otherwise be murder, if 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.” OCGA § 16–5–2(a). “ ‘On the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury.’ Banks v. State, 227 Ga. 578, 580, 182 S.E.2d 106.” Henderson v. State, 234 Ga. 827, 832, 218 S.E.2d 612 (1975).

In this case, appellant proffered evidence supporting an inference that he shot the victim in the heat of passion during a confrontation about the victim's molestation of appellant's niece. Appellant testified he learned of the molestation one or two hours before the shooting. Immediately prior to the shooting, appellant's sister, when informed about the molestation, stated she did not believe her daughter. Appellant stated he then retrieved his gun for his own protection and went outside to talk to the victim. Appellant asked the victim why he did it, and the victim taunted him by saying “she's my b––––, I can do whatever I want.” At that point, appellant stated he “lost it,” “blacked out,” and started shooting. In light of this testimony, we conclude the slight evidence necessary to show provocation to support a charge on voluntary manslaughter was present.² See Glidewell v. State, 279 Ga.App. 114(1), 630 S.E.2d 621 (2006) (evidence supported voluntary manslaughter charge where husband discovered spouse's intent to take child with her to meet paramour at hotel), overruled on other grounds, Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009); Banks v. State, 184 Ga.App. 504, 362 S.E.2d 227 (1987) (evidence that defendant shot victim after learning victim was beating his daughter sufficient to warrant voluntary manslaughter charge), overruled in part on other grounds, Ross v. State, 279 Ga. 365(2), 614 S.E.2d 31 (2005). Compare Brown v. State, 270 Ga. 601(3), 512 S.E.2d 260 (1999). While we adhere to the view 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,” (punctuation omitted) Brooks v. State, 249 Ga. 583, 586, 292 S.E.2d 694 (1982), in this case there is slight evidence from which a jury could conclude the victim's words in connection with his conduct served as the “serious provocation sufficient to excite ․ a sudden, violent and irresistible passion.” OCGA § 16–5–2(a). See Todd v. State, 274 Ga. 98(4), 549 S.E.2d 116 (2001); Strickland v. State, 257 Ga. 230(2), 357 S.E.2d 85 (1987); Washington v. State, 249 Ga. 728, 731, 292 S.E.2d 836 (1982). Accordingly, it was error not to instruct the jury on the lesser included charge of voluntary manslaughter and under the circumstances of this case, we cannot say the error was harmless.

3. It follows that the trial court's ruling that appellant could not introduce evidence relevant to prove provocation was harmful error. See OCGA § 24–2–1; Brown v. State, supra, 270 Ga. at 601–602, 512 S.E.2d 260 (“Evidence is relevant and, therefore, admissible it if tends to prove a material issue in the case”).

Judgment reversed.

THOMPSON, Justice.

All the Justices concur.