Russell v. State, S14A0795.

• Decision Date: 20 October 2014
• Docket Number: No. S14A0795.,S14A0795.
• Citation: 295 Ga. 899,764 S.E.2d 812
• Court: Georgia Supreme Court
• Parties: RUSSELL v. The STATE.

295 Ga. 899

764 S.E.2d 812

RUSSELL

v.The STATE.

No. S14A0795.

Supreme Court of Georgia.

Oct. 20, 2014.

John W. Kraus, Jonesboro, for appellant.

Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Vicki S. Bass, Asst. Atty. Gen., for appellee.

Opinion

HUNSTEIN, Justice.

Appellant Demetrius Russell was convicted of two counts of murder and related offenses in connection with the June 22, 2008 shooting deaths of Victoria Renfroe and Andrea Smith. Russell now challenges his convictions, contending that the evidence was insufficient and that the trial court erred in declining to instruct the jury on voluntary manslaughter and in various evidentiary rulings. Finding no error, we affirm.¹

Construed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. At approximately 5:00 a.m. on June 22, 2008, Victoria Renfroe and Andrea Smith were shot and killed at Renfroe's home on Eastwood Drive in DeKalb County, where the two women were living with their young children. Renfroe's next door neighbor, who at that time was in his driveway preparing to leave for work, heard nine gunshots and female screams from the home and then observed a man run out of the front door of the house holding a gun. The neighbor called 911, and responding officers found the victims: Smith had been shot dead while lying on a living room sofa, and Renfroe had been shot dead lying in a bed. There were no signs of forced entry into the home.

Appellant Demetrius Russell was Renfroe's estranged husband. At the time of the shooting, the couple were separated, and Renfroe was actively pursuing a divorce. Trial testimony established that Russell had been at Renfroe's home in the hours before the early morning shooting. Natasha Cato, a close friend of Renfroe, testified that, at approximately 6:00 p.m. on the night before the shooting, Renfroe picked her up at work with Russell in the car and drove them all to the Eastwood Drive house. Cato eventually left the home that evening, but she spoke by phone with Renfroe at approximately 2:00 a.m., during which she overheard Russell and Renfroe yelling at one another and a door slamming.

Smith's oldest son, Anjuan, who was 12 years old at the time of the shooting, testified that on the morning of June 22, 2008 he awoke to gunshots, came out of his room, and saw Russell run out of the house. One of Smith's daughters, seven-year-old Ariyanna Cato, testified that she heard gunshots and saw a man run out the front door of the house with a gun. She testified further that the shooter was wearing red and white Nike shoes, which she recognized as Russell's. Further trial testimony confirmed that Russell had been wearing red and white Nike shoes in the hours before the shooting, and a police detective testified that Russell was wearing red, white, and black Nike tennis shoes at the time of his questioning and eventual arrest, which took place in the afternoon on the day of the shooting.

In a statement to police, Russell claimed he had been at the home of his girlfriend Shantricia Anderson from 11:30 p.m. on June 21 until 6:00 a.m. the following morning. Cell phone records indicated, however, that all activity on Russell's phone taking place during that time period, including a transmission at 5:01 a.m., had been transmitted through the cell tower closest to the victims' home, rather than through the cell tower closest to Anderson's home.

Evidence of prior difficulties between Renfroe and Russell was adduced from MARTA police officer Randolph Wilborn, who testified that in February 2002, he witnessed Russell holding Renfroe in a chokehold with his hands around her neck; on Wilborn's order for him to stop, Russell shoved Renfroe against a wall. Natasha Cato also testified that on one occasion in December 2007, she had observed Russell grab Renfroe by the arms, jerk her, and threaten to kill her.

Cell phone records reflected that Russell had sent Anderson various text messages on the morning of the shooting: a 5:17 a.m. text read, “Ova ur house since 12”; an 8:18 a.m. text read, “I left ur house bout 6 walkin home cuz I had no money”; an 11:23 a.m. text read, “I had on white T N black shorts.”

1. The evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Russell was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Anjuan Smith identified Russell as the man who ran from the home immediately after the shots were fired, and this identification was corroborated by Ariyanna Cato, who recognized the shoes the shooter was wearing as those belonging to Russell. The evidence established both a motive and an opportunity for Russell to commit the murders. Moreover, Russell's text messages are reflective of an effort to fabricate an alibi, which was debunked by the cell phone records indicating Russell's likely presence at Renfroe's home, rather than Anderson's, in the hours and minutes leading up to the shooting. The evidence was clearly sufficient to support Russell's convictions.

2. Russell contends that the trial court erred in refusing his request to give a jury instruction on voluntary manslaughter.

When instructing the jury in a murder case, a trial court is required to grant the 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. [Cit.] Whether such slight evidence exists is a question of law. [Cit.] The crime of voluntary manslaughter is committed when one kills “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).

Blake v. State, 292 Ga. 516, 518(3), 739 S.E.2d 319 (2013). Here, we conclude that the trial court properly declined to instruct the jury on voluntary manslaughter because there was no evidence to support such a charge. Though there was evidence of ongoing marital difficulties between Russell and Renfroe and past acts of violence committed by Russell against Renfroe, there was no evidence of any specific provocation at or around the time of the murders such as would generate the “sudden ... and irresistible passion” necessary to support a conviction for voluntary manslaughter. See, e.g., Culmer v. State, 282 Ga. 330, 335(4), 647 S.E.2d 30 (2007) (even evidence of the victim's adultery does not support a voluntary manslaughter charge if there is no evidence that the defendant learned of the conduct immediately prior to the killing so as to inflame a “sudden” passion in the defendant). The mere fact that the couple was heard arguing approximately three hours prior to the shooting is not itself sufficient to support an instruction on voluntary manslaughter. See, e.g., Moore v. State, 295 Ga. 709, 715(4), 763 S.E.2d 670 (2014) (fighting prior to a homicide does not ordinarily constitute the requisite provocation to support a charge on voluntary manslaughter); Funes v. State, 289 Ga. 793(2), 716 S.E.2d 183 (2011) (same). This enumeration is, thus, without merit.

3. Russell next contends that the trial court erred in excluding evidence the defense sought to introduce regarding a drug-related armed robbery allegedly perpetrated on the victims some 32 hours prior to the murders. The defense had sought to adduce such evidence in support of a theory that the murders had been committed by the same individual(s) who had allegedly committed the robbery. We find no error in the trial court's ruling on...