¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: March 7, 2023
¶4 S23A0377. BEHL v. THE STATE.
¶5 PETERSON, Presiding Justice.
¶6 Edward Behl appeals convictions for felony murder and a
¶7weapons charge stemming from the death of Joseph Billings, a
¶8fellow resident of a homeless encampment. 1 Behl argues for a new
¶9trial on the grounds that (1) the trial court plainly erred in not
¶10charging the jury on voluntary manslaughter, and (2) Behl was
¶11 1The crimes took place on January 10, 2017. A Chatham County grand jury returned an indictment against Behl on March 29, 2017, charging Behl with malice murder, felony murder, aggravated assault, and two counts of possession of a knife during the commission of a felony. At an October 2019 trial, a jury found Behl not guilty of malice murder but guilty of all other counts. The trial court on October 16, 2019, sentenced Behl to life in prison for felony murder and a five year consecutive, probated sentence for one of the weapon counts; the other counts merged. Behl filed a motion for new trial on October 24, 2019, that was amended by appellate counsel on October 29, 2021. Following a hearing, the trial court denied the motion in an order entered on October 21, 2022. Behl filed a timely notice of appeal. The case was docketed to this Court’s term beginning in December 2022 and submitted for consideration on the briefs. unable to view digital discovery while incarcerated and while
¶12exercising the right to self-representation. We conclude that the trial
¶13court did not plainly err in failing to charge the jury on voluntary
¶14manslaughter, and that Behl did not preserve the issue of access to
¶15discovery. Accordingly, we affirm.
¶16 The evidence at trial showed that Behl moved into a homeless
¶17encampment in Chatham County in January 2017. On the evening
¶18of January 9, 2017, Behl, Billings, and other residents of the camp
¶19were drinking beer by a campfire. Later that night, Behl was
¶20observed touching Billings’s penis and kissing him, while Billings
¶21was passed out.
¶22 The next morning, another encampment resident informed
¶23Billings about what had happened the previous night. Billings and
¶24Behl engaged in a physical altercation as a result, but other
¶25residents were able to separate the two. Behl moved to another
¶26location nearby.
¶27 Billings and another resident twice left the camp and went to
¶28the store that day. When Billings and the other resident returned to
¶29 2 the camp the second time, they encountered Behl. Billings and Behl
¶30began to argue again about the previous evening, swearing and
¶31calling each other names. Behl convinced Billings to come to Behl’s
¶32tent, then fatally stabbed Billings in the neck.
¶33 1. Behl argues that the trial court plainly erred in failing to
¶34instruct the jury on voluntary manslaughter. We disagree.
¶35 Behl requested a jury charge on voluntary manslaughter. At
¶36the charge conference, the trial court indicated it was disinclined to
¶37give such an instruction, citing “a substantial cooling-off period.”
¶38The trial court ultimately did not give the voluntary manslaughter
¶39charge, although it did give instructions on justification and self-
¶40defense. Behl’s only objection to the jury charge at the time that it
¶41was given was “the failure to charge my involuntary.” (Emphasis
¶42supplied.)2
¶43 Behl concedes on appeal that failure to object to the omission
¶44of an instruction on voluntary manslaughter from the charge as
¶45given means that we review that omission from the instruction only
¶46 2 Behl also had requested an instruction on involuntary manslaughter. 3 for plain error. See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109)
¶47(2012) (“[T]he failure to object to the charge as given precludes
¶48appellate review ‘unless such portion of the jury charge constitutes
¶49plain error which affects substantial rights of the parties.’” (quoting
¶50OCGA § 17-8-58 (b))). Under plain error review, we can reverse only
¶51if the trial court made a clear or obvious error that was not
¶52affirmatively waived, likely affected the outcome of the proceedings,
¶53and seriously affects the fairness, integrity, or public reputation of
¶54judicial proceedings. See Morris v. State, 303 Ga. 192, 197 (V) (811
¶55SE2d 321) (2018). Behl’s claim fails because there was no obvious
¶56error in failing to charge on voluntary manslaughter.
¶57 “Even slight evidence showing that the victim seriously
¶58provoked the defendant requires the trial court to give a requested
¶59charge on voluntary manslaughter.” Dugger v. State, 297 Ga. 120,
¶60124 (7) (772 SE2d 695) (2015) (citation and punctuation omitted).
¶61Behl argues that a voluntary manslaughter instruction was justified
¶62by the “heated arguments and physical beatings” that preceded the
¶63stabbing, such that Behl “had a reasonable fear of some danger
¶64 4 from” Billings. But “neither fear that someone is going to pull a
¶65[weapon] nor fighting are the types of provocation [that] demand a
¶66voluntary manslaughter charge.” Smith v. State, 296 Ga. 731, 737
¶67(3) (770 SE2d 610) (2015). And “it is well established that words
¶68alone, regardless of the degree of their insulting nature, will not in
¶69any case justify the excitement of passion so as to reduce the crime
¶70from murder to manslaughter [when] the killing is done solely on
¶71account of the indignation aroused by use of opprobrious words.”
¶72Hudson v. State, 308 Ga. 443, 446 (2) (a) (841 SE2d 696) (2020)
¶73(citation, punctuation, and emphasis omitted). Moreover, “[t]o
¶74warrant a jury charge on voluntary manslaughter, there must be at
¶75least slight evidence that the accused was so influenced and excited
¶76that he reacted passionately rather than simply in an attempt to
¶77defend himself.” Collins v. State, 312 Ga. 727, 739 (6) (864 SE2d 85)
¶78(2021) (citation and punctuation omitted). Here, Behl offers no
¶79evidence that Behl “was angry or mad or . . . had any other response
¶80showing [Behl] might have reacted passionately” as opposed to
¶81acting based on fear or in self-defense. See id. at 740 (6).
¶82 5 Behl argues that a voluntary manslaughter instruction was
¶83required because the jury “could have inferred that the name calling,
¶84heated arguments, and physical beatings[] were a result of a
¶85fundamental element of . . . Behl’s identity — homosexuality.” But
¶86Behl points to no evidence that Billings made any particular
¶87remarks or slurs targeting Behl’s sexual orientation.3 Moreover, “an
¶88error is plain only if it is clear or obvious under current law. An error
¶89cannot be plain where there is no controlling authority on point.”
¶90Davis v. State, 312 Ga. 870, 874 (2) (866 SE2d 390) (2021) (citation
¶91and punctuation omitted). Behl “cites no precedent requiring a
¶92voluntary manslaughter instruction under circumstances similar to
¶93those presented here. And we have found none.” Id. at 874 (2)
¶94(citation and punctuation omitted); cf. Collins, 312 Ga. at 740 (6) (no
¶95error in denying request for voluntary manslaughter instruction
¶96where defendant testified that victim called him a “mother f***er”
¶97to his face, threatened to kill him, and pulled a handgun on him, but
¶98 3 We note that although Behl was identified in the trial transcript as “Ms. Behl” and uses female pronouns in briefing before this Court, Behl frames this argument in terms of sexual orientation, not gender identity. 6 “never testified that he was angry or mad or that he had any other
¶99response showing he might have reacted passionately — only that
¶100was he was scared and was defending himself (as well as [a co-
¶101defendant])”); Hudson, 308 Ga. at 446 (2) (a) (no error in denying
¶102request for voluntary manslaughter instruction based on evidence
¶103that the victim called the defendant a “mother f***er” shortly after
¶104the death of the defendant’s mother). 4 It was not at all obvious that
¶105a voluntary manslaughter instruction was required on this record.
¶106Therefore, the trial court did not plainly err in failing to give one.
¶107 2. Behl also argues that the Georgia constitutional right to
¶108due process was violated when, while acting pro se, Behl was
¶109prevented from viewing discovery due to being incarcerated. 5 We
¶110 4 The cases Behl cites in which a Georgia appellate court found error in a refusal to give a voluntary manslaughter charge involved facts unlike this case. See Woody v. State, 262 Ga. 327, 328 (2) (418 SE2d 35) (1992) (shooting occurred “within seconds” of fight in which victim had beaten defendant to the point where defendant “twice begged for his life”); Washington v. State, 249 Ga. 728, 730-731 (3) (292 SE2d 836) (1982) (victim had cut defendant’s son, leaving son hospitalized, and victim in the presence of defendant was making taunts and threatening the life of defendant’s son). 5 To the extent Behl claims a denial of the right to self-represent
¶111“effectively,” there is no such right. See Williams v. State, 298 Ga. 538, 540 (3) (783 SE2d 594) (2016) (“[W]hen a criminal defendant elects to represent
¶112 7 conclude that this claim of error was not preserved.
¶113 Charged with malice murder and other offenses, Behl was
¶114represented by the public defender’s office until about two months
¶115before trial, when counsel successfully moved to withdraw and Behl
¶116was given permission by the court to self-represent. The record
¶117indicates that, prior to counsel withdrawing, the State provided to
¶118Behl’s counsel a number of discs containing digital evidence,
¶119including photographs, police body-worn camera footage, and audio-
¶120and/or video-recorded statements, filing those items with the trial
¶121court. At the August 6, 2019, hearing pursuant to Faretta v.
¶122California, 422 U.S. 806 (95 SCt 2525, 45 LE2d 562) (1975), the trial
¶123court warned Behl that Behl was “not going to get any extra time to
¶124prepare” and would “have less of a chance to investigate things and
¶125research [Behl’s] case in advance” by proceeding pro se. During a
¶126discussion about a prior case of Behl’s that the State planned to
¶127introduce for sentencing purposes, the public defender represented
¶128himself[,] he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.” (citation and punctuation omitted)). 8 that “[i]f it’s a question as to prior representation, I believe I have
¶129that information and I can provide that to [Behl] through
¶130discovery[.]” The public defender then represented that he would
¶131give Behl “all of the discovery,” upon which the trial court asked
¶132Behl whether Behl was “comfortable knowing you’re going to get all
¶133of that information and have access to it through all of the discovery
¶134materials,” and Behl responded, “Yeah, once I get the replacement
¶135copy.” When Behl asked about what options might be available in
¶136the event that Behl were not provided necessary resources, the trial
¶137court responded, “If you feel like you’re being denied resources that
¶138you’re constitutionally entitled to, then you can file a motion in that
¶139respect.” In an order entered on September 20, 2019, the trial court
¶140directed the sheriff, his deputies, and the staff at the Chatham
¶141County Detention Center to give Behl “priority access to the law
¶142library and legal research materials at the jail” so that Behl could
¶143prepare for trial.
¶144 A brief in support of the amended motion for new trial filed by
¶145appellate counsel claimed that, after electing self-representation,
¶146 9 Behl was unable to review any of the discs provided in discovery.
¶147The brief also represented that “[t]he Chatham County Detention
¶148Center does not permit pro se inmates to review discovery contained
¶149on DVDs and CDs.” For this proposition, the brief cited an attached
¶150document purportedly approved by the Chatham County sheriff that
¶151does not appear to address whether pro se defendants may examine
¶152such materials. 6 A hearing on the motion was held, but Behl
¶153introduced no evidence.
¶154 The trial court denied the motion for new trial, finding that
¶155“the bulk of” the State’s discovery was disclosed to Behl on August
¶15616, 2017, nearly two years before Behl elected self-representation,
¶157such that Behl was able to review the materials with prior counsel.
¶158The trial court noted that Behl acknowledged awareness of the
¶159discovery at the Faretta hearing. The trial court stated that the
¶160Chatham County jail “does not allow inmates to review discovery
¶161 6 Part of the document appears to have been cut off in the copy in the Court’s record, possibly due to a poor photocopying job. But as explained below, our resolution of this enumeration does not depend on the contents of the policy. 10 contained on DVDs or CDs” but noted that in other cases the court
¶162had permitted pro se defendants to view video recordings provided
¶163in discovery in open court as part of their trial preparation. The
¶164court also wrote that the paper discovery materials in Behl’s
¶165possession referenced the digital materials, yet Behl did not ask the
¶166court for assistance in reviewing them.
¶167 Behl claims that the inability to review all of the discovery
¶168materials while self-represented and incarcerated amounted to a
¶169due process violation. The State argues that this claim fails for
¶170various reasons, including that the claim is untimely, that Behl has
¶171not shown that any state action caused any inability to review
¶172discovery materials, and that Behl has not demonstrated prejudice
¶173from any such inability. Without reaching the merits of Behl’s claim,
¶174we agree that this claim was waived.7
¶175 7Although we do not reach the merits of whether any denial of access to discovery violated Behl’s constitutional rights, we note that some of us are concerned about the possibility — apparently accepted as true by the trial court — that a jail would as a matter of policy categorically deny a self-represented inmate access to all digital discovery materials, including materials the possession of which is not generally proscribed by law. 11 The Georgia Constitution provides that “[n]o person shall be
¶176deprived of life, liberty, or property except by due process of law.”
¶177Ga. Const. of 1983, Art. I, Sec. I, Para. I. But a due process claim
¶178such as this must be asserted in a timely fashion. See Benton v.
¶179State, 300 Ga. 202, 205 (2) (794 SE2d 97) (2016) (“Of course, a
¶180criminal defendant may forfeit a constitutional right by failing to
¶181timely assert it.”); Scudder v. State, 298 Ga. 438, 440 (2) (782 SE2d
¶182638) (2016) (defendant waived due process claim based on judge
¶183meeting privately with a witness, where defense raised no objection
¶184when judge announced that he was leaving courtroom to speak with
¶185witness in chambers, and defense failed to ask court reporter to
¶186reveal what had been said in private). Here, Behl points to no
¶187instance prior to or during trial in which Behl raised with the State
¶188or the trial court any issue with the ability to access the materials
¶189in question, and we have found none in the record. Behl filed no
¶190motion seeking access to the materials — despite the trial court
¶191having explained to Behl that filing a motion was an option if Behl
¶192were denied necessary resources. Behl did not seek a continuance to
¶193 12 review the materials in the courtroom. Behl did not object to the
¶194admission of any testimony or other evidence — including
¶195photographs and the one digital recording, body-worn camera
¶196footage, that was admitted at trial — on the basis that Behl had not
¶197been able to review any digital materials. And Behl does not contest
¶198the trial court’s finding that Behl was aware that the materials had
¶199been provided in discovery. Indeed, the record shows that the State
¶200filed a list of “all discoverable material,” including references to
¶201audio and video recordings, with the trial court on August 16, 2017,
¶202nearly two years before Behl was granted the ability to proceed pro
¶203se.
¶204 Under these circumstances, we conclude that Behl waived any
¶205claim of a violation of due process based on any inability to access
¶206the materials in question. Cf. Williams v. State, 298 Ga. 538, 542 (7)
¶207(783 SE2d 594) (2016) (“We find no support in the record to support
¶208appellant’s assertion that the trial court refused to allow him to
¶209subpoena witnesses for the motion for new trial hearing. In fact, the
¶210record shows that appellant was given the opportunity to subpoena
¶211 13 witnesses for that hearing but that having elected to proceed pro se,
¶212he simply failed to take the steps to ensure the presence of his
¶213witnesses.”); State v. Dickerson, 273 Ga. 408, 411 (2) (542 SE2d 487)
¶214(2001) (finding waiver of right to assert error under criminal
¶215discovery statute given defendant’s failure to seek a continuance;
¶216“Generally a defendant has a duty to request a continuance to cure
¶217any prejudice which may have resulted from the State’s failure to
¶218comply with the requirements of OCGA § 17-16-1 et seq.”); Sheppard
¶219v. State, 297 Ga. App. 806, 812 (3) (678 SE2d 509) (2009) (rejecting
¶220argument that pro se defendant was deprived of constitutional right
¶221to compel attendance of witnesses; “The record does not disclose that
¶222Sheppard ever requested issuance of subpoenas or the trial court’s
¶223assistance in enforcing them, and, as such, his right to compulsory
¶224process was not violated. To the extent Sheppard is arguing that the
¶225trial court should have continued his trial to allow him to subpoena
¶226witnesses, his claim is barred because he never moved for a
¶227continuance.”).
¶228 Judgment affirmed. All the Justices concur.
¶229 14 MCMILLIAN, Justice, concurring.
¶230 I am writing to make clear that I do not share the same concern
¶231expressed in footnote 7 of the opinion, which provides:
¶232 Although we do not reach the merits of whether any denial of access to discovery violated Behl’s constitutional rights, we note that some of us are concerned about the possibility – apparently accepted as true by the trial court – that a jail would as a matter of policy categorically deny a self-represented inmate access to all digital discovery materials, including materials the possession of which is not generally proscribed by law.
¶233 As an initial matter, I do not construe the record as a
¶234categorical denial of access to digital materials. As stated by the trial
¶235court, upon request, pro se defendants were allowed to view video
¶236recordings provided in discovery in open court as part of their trial
¶237preparation.
¶238 To the extent that members of the Court are expressing
¶239concern that the jail did not provide a DVD player, CD player, or
¶240computer to review the digital materials in the jail, I am not aware
¶241of any authority for this Court to require a jail or prison to fund and
¶242provide certain equipment for use by pro se defendants. “Meaningful
¶243 15 access [to the courts] means that state authorities must ensure that
¶244inmates have a reasonably adequate opportunity to present claimed
¶245violations of fundamental constitutional rights to the courts. . . .”
¶246Gibson v. Turpin, 270 Ga. 855, 858 (1) (513 SE2d 186) (1999) (such
¶247access “does not mean that a state must help inmates discover
¶248grievances, or litigate effectively when in court”) (punctuation
¶249omitted), citing Lewis v. Casey, 518 U.S. 343, 356 (II) (B) (116 SCt
¶2502174, 135 LE2d 606) (1996). See also Blaine v. State, 305 Ga. 513,
¶251520 (3) (826 SE2d 82) (2019) (citing Lewis). However, meaningful
¶252access does not guarantee any “particular methodology but rather
¶253the conferral of a capability—the capability of bringing
¶254contemplated challenges to sentences or conditions of confinement
¶255before the courts.” Lewis, 518 U.S. at 356 (II) (B). Again, if the jail
¶256policy was to allow pro se defendants to use the trial court’s
¶257equipment to review digital materials upon request, I do not see a
¶258concern with that policy.
¶259 Otherwise, I concur fully in the Court’s opinion. I am
¶260authorized to state that Justice LaGrua joins in this concurrence.
¶261 16