Clough v. State

• Decision Date: 07 March 2016
• Docket Number: No. S15A1708.,S15A1708.
• Citation: 298 Ga. 594,783 S.E.2d 637
• Parties: CLOUGH v. STATE.
• Court: Georgia Supreme Court

298 Ga. 594

783 S.E.2d 637

CLOUGH

v.STATE.

No. S15A1708.

Supreme Court of Georgia.

March 7, 2016.

Maryellen Simmons, John Travis Overhocker, Coweta Judicial Circuit Public Defender's Office, Carrollton, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Vincent James Faucette, Asst. Dist. Atty., Fulton County District Attorney's Office, Peter J. Skandalakis, Dist. Atty., Coweta Judicial Circuit District Attorney's Office, for appellee.

BENHAM

, Justice.

Appellant Duane Clough seeks review of his convictions related to the death of Christopher Watkins and the aggravated assaults of Michelle Clough, who was appellant's estranged wife, and Mary Thomas, who was appellant's mother-in-law.¹ Appellant contends the trial court erred when it failed to give a requested charge on voluntary manslaughter. Because we agree, we now reverse in part.

The evidence shows that in the early morning hours of October 16, 2009, appellant drove by his mother-in-law's house. Outside her home were several vehicles owned by Watkins which had been parked there for a few days prior to the incident. At that time, appellant and Michelle had been separated since February or March 2009, and Michelle had been staying at places other than the marital home in Alabama, including staying at her mother's house in Carroll County.

On the night in question, appellant began banging on the window of Thomas's house at about 2 a.m. Sometime later, appellant broke into the house and went to the back bedroom where he found Michelle and Watkins sleeping. Appellant grabbed Michelle and tossed her across the room. When Watkins awoke, appellant stabbed Watkins to death. Michelle testified that neither she nor Watkins attempted to fight appellant. Both Thomas and Michelle stated that Watkins was praying aloud while appellant attacked him. During his attack of Watkins, appellant yelled, "This is what you get for f* * *ing somebody's wife." After killing Watkins, appellant severely beat Michelle, including hitting her with a chair and stomping a knife into her face. Meanwhile, Thomas made an attempt to call the police. When appellant saw Thomas with the phone in her hand, he attacked her with a glass snow globe and stabbed her hand with a knife. Appellant then fled the scene and went to his mother's house where he was apprehended by authorities.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

.

2. Appellant's sole enumeration of error is that the trial court erred when it refused to give his requested charge on voluntary manslaughter. A written request to charge on an included offense must be given if there is any evidence to support it, however slight such evidence might be. See Morgan v. State, 290 Ga. 788(2), 725 S.E.2d 255 (2012)

; Beam v. State, 265 Ga. 853(6), 463 S.E.2d 347 (1995) ; Raines v. State, 247 Ga. 504(1), 277 S.E.2d 47 (1981) ; Phillips v. State, 238 Ga. 497, 499, 233 S.E.2d 758 (1977).

In this case, the trial court declined to give the charge as it was troubled by the fact that appellant entered his mother-in-law's house, a place appellant had no lawful right to be. During the charge conference, the trial court stated as follows:

I don't think the law in Georgia is you can drive by any ol' house and see a strange car, it ain't your house and it's not your spouse's house, and decide to go kick the door in. That is not the law in Georgia.

* * *

What I'm positive of is that Georgia law never, the law makers never envisioned the scene and scenario that we have presented in this court to be an excused murder. If the jury were to find that [appellant] is responsible for the killing[,] then Georgia law can't construe that as manslaughter. I see no way to construe it as manslaughter.

In addition, at the motion for new trial hearing, the trial court noted:

Certainly, voluntary manslaughter does not mean you can go to somebody else's house and commit a burglary, so that you can put yourself in the position of seeing something that you think would get you voluntary manslaughter; that's absurd.

Finally, in its order denying appellant's motion for new trial, the trial court reasoned as follows:

Upon listening to all the evidence in this case, it was clear [appellant] was acting not out of a sudden impulse, but out of revenge. There was no evidence that [appellant] suffered from "serious" provocation sufficient to excite deadly passion in a reasonable person when he drove by his estranged wife's mother's home and observed a strange vehicle there. There was no serious provocation to authorize him to then break down the door in that house upon observing a boat that he did not recognize on the mother-in-law's property. The Court acknowledges, that had this occurred in some home where [appellant] had some right to be in, that when he observed his estranged wife in bed with another man, that this would be cause to charge the jury with the lesser included charge of voluntary manslaughter, that does not apply in this case. It is not the law that upon learning or strongly suspecting that a spouse is being unfaithful, that one can then enter into any property one suspects her of being to confirm that belief, and then say that the confirmation gives rise to the sudden impulse.

We agree with appellant that the trial court erred when it failed to give the requested charge on voluntary manslaughter. Georgia's voluntary manslaughter statute states:

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.

OCGA § 16–5–2(a)

. As far as the murder of Watkins is concerned, there is slight evidence that appellant acted out of irresistible passion. The record shows that when appellant came upon his wife and her paramour, appellant stabbed Watkins while yelling "This is what you get for f* * *ing somebody's wife." Evidence of adulterous conduct can be evidence of "serious" provocation warranting the trial court giving a charge on voluntary manslaughter. See Brooks v. State, 249 Ga. 583, 585, 292 S.E.2d 694 (1982). What transpired up to the point of the murder of Watkins, including appellant's possible prior knowledge that his wife was having an affair, appellant's possible prior knowledge of Watkins' identity, the parties' separation after fifteen years of marriage, appellant's observing unfamiliar vehicles at his mother-in-law's home, and appellant's unlawful entry in to his mother-in-law's house all go to the sufficiency of the provocation which would excite a reasonable person. When there is evidence of alleged provocation, the sufficiency of the provocation is generally for the jury to weigh and decide, not the trial court. See Goforth v. State, 271 Ga. 700(1), 523 S.E.2d 868 (1999) (it is for the jury to determine whether the defendant acted with passion or revenge). See also Lynn v. State, 296 Ga. 109(2), 765 S.E.2d 322 (2014) ( "it is for the jury to determine what facts are proven, to weigh the evidence, and to decide if defendant is guilty of murder or voluntary manslaughter") (citing Freeman v. State, 158 Ga. 369, 371, 123 S.E. 126 (1924) ).

Here, the trial court stated that the only reason it did not give a charge on voluntary manslaughter was because appellant was at his mother-in-law's house where he had no right to be. Presumably, had the same facts played out at the marital home, the trial court would have given the charge as requested. This reasoning is an overreach by the trial court. First, OCGA § 16–5–2(a)

does not place such territorial restrictions on its application. Secondly, the trial court's conclusion is essentially a decision about the sufficiency of the provocation, rather than a decision about whether there is any evidence of voluntary manslaughter. Again, the sufficiency of the provocation is an issue for the jury. Goforth v. State, supra, 271 Ga. at 701, 523 S.E.2d 868. Under the circumstances of this case, the trial court should have given the charge as requested and its failure to do so constituted reversible error. See Washington v. State, 249 Ga. 728, 292 S.E.2d 836 (1982) ; Raines v. State, 247 Ga. 504, 277 S.E.2d 47 (1981).

Accordingly, appellant's conviction and sentence for malice murder is reversed. Because the malice murder conviction is now reversed, appellant's convictions for felony murder (aggravated assault of Watkins) and felony murder (burglary) are no longer vacated as a matter of law. However, because of the failure to give the charge on voluntary manslaughter, appellant's conviction for felony murder (aggravated assault of Watkins) is also reversed. See Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992)

. Upon remand, the State may retry appellant for malice murder and felony murder (aggravated assault of Watkins) or it may, instead, have the trial court sentence appellant for felony murder (burglary).² SEE, E.G., cochran v. state, 276 gA. 283(2), 576 s.e.2d 867 (2003)

. The guilty verdicts on the other counts, which are also unaffected by a charge on voluntary manslaughter, are affirmed; however, the trial court may be required to merge or un-merge some of those counts depending on the disposition of the murder charges on remand (e.g., the burglary count would merge if appellant is...