Ware v. State

FINAL COPY



                        S18A0028. WARE v. THE STATE.


       GRANT, Justice.

       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

OCGA § 24-4-404 (b). Because we find no reversible error, we affirm.



                                             I.

       1
         The murder was committed on December 6, 2015. On March 1, 2016, Ware was
indicted by a Richmond County grand jury for malice murder, felony murder predicated
on aggravated assault, possession of a firearm during the commission of a crime, and
cruelty to children in the third degree. At the conclusion of a trial held from February 6-9,
2017, a jury found Ware not guilty of malice murder but guilty of all remaining counts of
the indictment. The trial court sentenced Ware to life imprisonment without parole for
felony murder, five years consecutive for the firearm count, and twelve months concurrent
for the cruelty to children count. Ware forwent a motion for new trial and instead filed a
timely notice of appeal on March 13, 2017. The appeal was docketed to the term of this
Court beginning in December 2017 and submitted for a decision on the briefs.
      Viewed in the light most favorable to the verdicts, the evidence presented

at trial showed that Ware spent the afternoon of December 6, 2015 watching a

football game and drinking beer at a friend’s house. When Ware got home that

evening, he was confronted by his wife Michelle, who expressed frustration

about his drinking (an ongoing issue for the couple) and his lack of

employment. Ware expressed remorse, but Michelle said that she did not think

he’d be able to change. She then said, “Robert, I’m seeing somebody else that

I’m in love with.” Ware looked at her without speaking, and Michelle

continued, “It’s not going to work between us because I can’t love you no

more.” Ware then grabbed a pistol from the drawer next to him and shot

Michelle at close range in the back of the head. Not wanting their nine-year-

old daughter (who was in the shower) to see him, Ware fled the scene.

      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.
      That same night, a Georgia state trooper spotted Ware’s vehicle driving

in Washington, Georgia and activated his blue lights. Ware first increased his

speed, but then stopped after a short, high-speed pursuit. Other officers arrived

on the scene, and Ware was arrested. Police recovered a firearm from Ware’s

vehicle, and testing later confirmed that it had fired the bullet recovered during

Michelle’s autopsy.

      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
months before the killing that he had come close to shooting and killing her the

night before. Forensic evidence, including the presence of Michelle’s DNA on

the firearm recovered from Ware’s vehicle and the presence of gunshot residue

on Ware’s clothing, further confirmed that Ware was the shooter.

                                       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, 

 (

) (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, 

(

) (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
her before, his flight from the scene and subsequent flight from law

enforcement, and the other evidence admitted at trial indicating that he shot

Michelle, the evidence was sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Ware was guilty of the crimes of which he was

convicted. See Jackson v. Virginia, 

 (

, 61

LE2d 560) (1979); see also Faust v. State, 

 (

)

(2017) (“[C]onflicts in the evidence, questions about the credibility of

witnesses, and questions about the existence of justification are for the jury to

resolve.”) (citation and punctuation omitted).

                                       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.” OCGA

§ 16-5-2 (a). A jury charge on voluntary manslaughter “is required only when

there is some evidence that the defendant acted” in this manner. Graham v.
State, 

 (

) (2017). “And ‘(i)t is a question of law

for the courts to determine whether the defendant presented any evidence of

sufficient provocation to excite the passions of a reasonable person.’” 

(quoting Campbell v. State, 

 (

) (2013)).

      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, 

 (

) (1982) (quoting Coleman v. State,

 (

) (1919)) (punctuation omitted; emphasis in

original); see also Paul v. State, 

 (

) (2001); Pace

v. State, 

 (

) (1988). We have recognized,

however, a limited exception to this rule for words informing a defendant of

“adulterous conduct.” Brooks, 

. 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. 

 (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,”
her “adulterous conduct rather than the words describing this conduct”

authorized a jury charge on voluntary manslaughter. 

 We reiterated this

point in Lynn v. State, finding that the victim’s statements to the defendant that

she “recently had been unfaithful to him,” was having affairs with other men,

and that she could not be satisfied by only one man “might properly have

formed a basis for the jury to find that the killing only amounted to voluntary

manslaughter.” 

 (

) (2014).

      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, 

, 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, 

 (

) (2014); Strickland

v. State, 

 (

) (1987); Brooks, 

.

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
voluntary manslaughter charge is required. See Brown, 

;

Mayweather v. State, 

 (

) (1985).

      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. 

. 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. 

. 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. 

.

      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.
In Davis v. State, the victim told the defendant that she no longer loved him

and that it was none of his business who else she was “seeing.” 

 (

) (2012). There was additional evidence that the victim had

told the defendant that “she was having an affair, wanted a divorce, and only

married him because she was pregnant.” 

. We found that “the

circumstances regarding the victim’s alleged adulterous conduct are not of the

type contemplated by this Court in Strickland and Brooks” because there was

no evidence that the victim “recounted, taunted, or bragged about her sexual

involvement with other men.” 

. Also, in Mack v. State, the victim

verbally taunted the defendant by “comparing the size of his penis disfavorably

with that of another man,” but we held that because “there was no evidence to

support a finding that the victim had taunted the appellant with her extra-

marital sexual exploits,” no jury charge regarding provocation caused by

adulterous conduct was required. 

 (

)

(2000) (emphasis supplied).

      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 OCGA § 16-5-2 (a) because they did not disclose
adulterous, sexual conduct. Rather, her statements expressed to Ware that she

wanted to end their relationship and that she loved another person. These are

the types of statements that we have found do not rise to the level of

provocation required by Georgia’s voluntary manslaughter statute. However

disheartening they may be to the listener, they cannot mitigate a deadly

response. And there is no evidence that Michelle taunted Ware with, bragged

about, or even recounted to Ware any sexual relations with another man, as we

have required in the past for adulterous conduct disclosed by words to be

sufficiently provocative.   Because there was no evidence of sufficient

provocation to excite the passions of a reasonable person, no jury charge on

voluntary manslaughter was required.

                                     IV.

      Ware’s final contention is that the trial court erroneously admitted

evidence of a 1999 incident of domestic violence under OCGA § 24-4-404 (b).

But in light of the overwhelming evidence of Ware’s guilt—including his own

admission from the witness stand at trial that he shot and killed Michelle—we

need not decide whether the trial court erred in this respect because any error

was harmless. See Parks v. State, 

 (

) (2016)

(noting that “overwhelming” evidence of guilt rendered erroneous admission
of Rule 404 (b) evidence harmless, and finding harmless error where defendant

testified at trial that he shot victim). Accordingly, this contention also fails.

      Judgment affirmed. All the Justices concur, except Blackwell, J., who

concurs in judgment only as to Division III.
                           Decided June 18, 2018.

     Murder. Richmond Superior Court. Before Judge Craig.

     M. Katherine Durant, for appellant.

     Natalie S. Paine, District Attorney, Joshua B. Smith, John M.

Markwalter, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant

Attorney General, for appellee.