Cash v

State, 258 Ga. 460, 368 S.E.2d 756 (1988). Charge placing burden of persuasion of self-defense on defendant violates due process. — When absence of self-defense is an essential element of the crime of voluntary manslaughter, and the trial court’s charge operates to place the burden of persuasion on the defendant on this issue, defendant’s conviction violated the defendant’s due process rights under the United States Constitution. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981). An instruction which tracked the language of O.C.G.A. § 16-5-2(a) was not unconstitutionally burden-shifting in that it required the jury to find defendant guilty of murder if it determined that a sufficient cooling-off period intervened between the provocation and the homicide. Parents Against Realignment v. Georgia 16-5-2 High School Association, 271 Ga. 114, 515 S.E.2d 528 (1999). Court should charge voluntary manslaughter whenever requested by defendant. — Better practice on the part of trial courts would be to charge voluntary manslaughter in all instances when requested by the defendant. Such a charge, on request, cannot be reversible error, and, if routinely given, would vastly reduce the expense and delay involved on appeal of the sometimes difficult questions of whether there is sufficient evidence to support such a charge as a matter of law. Gooch v. State, 259 Ga. 301, 379 S.E.2d 522 (1989). When there is doubt whether manslaughter is involved, trial judge must submit question to jury. Todd v. State, 75 Ga. App. 711, 44 S.E.2d 275 (1947). Court should charge regarding both murder and manslaughter when doubt exists. If there exists any evidence to create doubt, however slight, as to whether offense is murder or voluntary manslaughter, instructions as to law of both of these offenses should be given. Thomas v. State, 47 Ga. App. 237, 170 S.E. 303 (1933); Thomas v. State, 51 Ga. App. 455, 180 S.E. 760 (1935); Hayes v. State, 51 Ga. App. 462, 180 S.E. 762 (1935); Dickey v. State, 60 Ga. App. 199, 3 S.E.2d 238 (1939); Harris v. State, 77 Ga. App. 842, 50 S.E.2d 152 (1948); McDaniel v. State, 91 Ga. App. 196, 85 S.E.2d 490 (1954). When evidence, or defendant’s statement, or portions of evidence and portions of statement combined, raise doubt, however slight, as to whether homicide was murder or voluntary manslaughter, it is not error for court to instruct jury upon law of voluntary manslaughter. Tucker v. State, 61 Ga. App. 661, 7 S.E.2d 193 (1940). When there is evidence sufficient to raise doubt, however slight, upon point, whether crime is murder or manslaughter, voluntary or involuntary, court should instruct jury upon these grades of manslaughter as well as murder. Freeman v. State, 158 Ga. 369, 123 S.E. 126 (1924); Goldsmith v. State, 54 Ga. App. 268, 187 S.E. 694 (1936). 551 Jury Charge (Cont’d) Law of voluntary manslaughter may properly be given in charge to jury on trial of one indicted for murder, where, from evidence or from defendant’s statement at trial, there is anything deducible which would tend to show that defendant was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed. Sumner v. State, 109 Ga. 142, 34 S.E. 293 (1899); Futch v. State, 137 Ga. 75, 72 S.E. 911 (1911); Reeves v. State, 22 Ga. App. 628, 97 S.E. 115 (1918); Amerson v. State, 26 Ga. App. 628, 105 S.E. 378 (1920); Green v. State, 52 Ga. App. 290, 183 S.E. 204 (1935); Dickey v. State, 60 Ga. App. 199, 3 S.E.2d 238 (1939); Hamby v. State, 71 Ga. App. 817, 32 S.E.2d 546 (1944); Goings v. State, 91 Ga. App. 146, 85 S.E.2d 98 (1954). When applicable, law of voluntary manslaughter should be charged, even absent request. — When under one phase of evidence, law of voluntary manslaughter is involved in case, judge errs when the judge omits to charge upon that subject and this charge is required even without any request. Parker v. State, 218 Ga. 654, 129 S.E.2d 850 (1963). When testimony as to voluntary manslaughter is sufficient, it is duty of court to charge thereon, whether or not request to charge thereon was made. Bell v. State, 130 Ga. 865, 61 S.E. 996 (1908); Andrews v. State, 134 Ga. 71, 67 S.E. 422 (1910); Hill v. State, 147 Ga. 650, 95 S.E. 213 (1918); Booker v. State, 153 Ga. 117, 111 S.E. 418 (1922). Even in the face of an objection by the defendant, the court properly charged the jury with respect to voluntary manslaughter in a prosecution for murder where the evidence showed adulterous conduct of the defendant’s wife with the victim. Boone v. State, 234 Ga. App. 373, 506 S.E.2d 884 (1998). Absent request, failure to charge on manslaughter not error when raised only by defendant’s statement. Taylor v. State, 199 Ga. 512, 34 S.E.2d 701 (1945). Defense counsel was entitled to rely on defendant’s claim that defendant was not present when a victim was killed, counsel 16-5-2 acted reasonably when counsel decided to defend charges of malice murder and felony murder by attacking the credibility of defendant’s co-conspirators and when counsel decided not to ask that the jury be instructed on voluntary manslaughter as a lesser included offense of murder, and the trial court did not err because it did not give the jury an instruction on voluntary manslaughter, sua sponte. Sparks v. State, 277 Ga. 72, 586 S.E.2d 645 (2003). At least some evidence must support charge of voluntary manslaughter. before the charge is required. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff ’d, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Victim’s suspected involvement in the death of a defendant’s brother did not constitute even slight evidence of provocation to support a voluntary manslaughter jury charge since five months had passed between the brother’s murder and the murder of the victim. Woodruff v. State, 281 Ga. 235, 637 S.E.2d 391 (2006). Because the evidence presented showed that the defendant acted in a rational and calculating fashion in retrieving a car jack, breaking out the exterior light to darken the scene, and then quietly snuck into and through the victim’s house in search of the victim, and did not show that the defendant’s actions were the result of a sudden, violent, and irresistible passion, the defendant was not entitled to a charge on voluntary manslaughter, and a malice murder conviction was upheld on appeal. Taylor v. State, 282 Ga. 502, 651 S.E.2d 715 (2007). Trial court did not err by refusing to give a jury charge on voluntary manslaughter because there was no evidence that following arrival the appellant was taunted by the victim or subjected to any conduct that would excite the passions of a reasonable person; rather, the evidence showed that the prior altercation and fighting involving the appellant’s relatives occurred some 30 or 40 minutes before the appellant arrived at the apartment complex. Smith v. State, 296 Ga. 731, 770 S.E.2d 610 (2015). Instruction requiring jury to consider malice murder, felony murder, and voluntary manslaughter simulta- 552 neously. — Defendant failed to establish plain error in the trial court’s charge pursuant to O.C.G.A. § 17-8-58 because the trial court clearly instructed the jury that before it was authorized to return a verdict of guilty of malice murder or felony murder, it had to first determine whether mitigating circumstances would cause the offense to be reduced to voluntary manslaughter; the structure of the actual verdict form made it clear that, as to each victim, the jury was required to consider malice murder, felony murder, and voluntary manslaughter simultaneously. Ortiz v. State, 291 Ga. 3, 727 S.E.2d 103 (2012). Instruction on when exculpatory matter in defendant’s statement cannot be rejected unwarranted. — Trial court did not err when the court declined to give the defendant’s requested charge as to when a jury could not reject exculpatory matter in the defendant’s statement because anything in the defendant’s statement that could support a defense of voluntary manslaughter was contradicted by other evidence that the defendant’s attack on the victim was of significant length and involved a number of different deliberate and cruel actions; that the defendant’s mind was changed about whether and how to kill the victim; and that the victim sustained numerous injuries. Rodriguez-Nova v. State, 295 Ga. 868, 763 S.E.2d 698 (2014). Whether charge warranted is question of law. — It is a question of law for courts to determine whether there is slight evidence that defendant acted as result of sudden, violent and irresistible passion resulting from serious provocation. Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975). Absent evidence of requisite provocation, it is not error to refuse charge on voluntary manslaughter. Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978). Exchange of gunfire. — While being fired upon may be ‘‘serious provocation,’’ it does not follow that a charge of voluntary manslaughter will be warranted in every case involving an exchange of gunfire. Worthem v. State, 270 Ga. 469, 509 S.E.2d 922 (1999). Instruction that words alone did not constitute sufficient provocation to reduce murder to voluntary man- 16-5-2 slaughter was not error since there was no evidence to support a finding that the victim had taunted defendant with the victim’s extra-marital sexual exploits. Mack v. State, 272 Ga. 415, 529 S.E.2d 132 (2000). Trial court’s charge that provocation by words alone would not justify manslaughter was not erroneous because it was implicit in the statutory voluntary manslaughter instruction that was given pursuant to the defendant’s request; and it was consistent with the defense theory that the defendant was provoked by the conduct of the victim, the defendant’s girlfriend, with the customer from the dance club where the victim worked and not the victim’s words alone. Rodriguez-Nova v. State, 295 Ga. 868, 763 S.E.2d 698 (2014). Nonthreatening words combined with harmless physical contact did not support a charge on voluntary manslaughter. Veal v. State, 250 Ga. 384, 297 S.E.2d 485 (1982). Evidence held sufficient to authorize a charge on voluntary manslaughter. — See Dyer v. State, 167 Ga. App. 310, 306 S.E.2d 313 (1983); Washington v. State, 228 Ga. App. 490, 491 S.E.2d 925 (1997). Trial court did not err in giving the state’s requested charge on voluntary manslaughter in the defendant’s trial, based on the defendant’s fatal drive-by shooting into an occupied car, when there was some slight evidence to support such a charge; the fact that a defendant in a murder trial relied on self-defense did not preclude such instructions, and based on the fact that the defendant was goaded by the victim’s sibling earlier in the day, as well as shot at by the victim’s sibling, giving the instruction fit within the circumstances of the defendant then firing shots in the car as the victim drove by, based on the defendant’s alleged belief that the defendant was going to be fired on by the car occupants. Mullins v. State, 270 Ga. App. 271, 605 S.E.2d 913 (2004). Voluntary manslaughter instruction was supported by evidence of sufficient provocation as there was evidence that the victim assaulted the defendant, but turned away to leave the scene; after the victim turned away, the defendant shot 553 Jury Charge (Cont’d) the victim in the back from two-and-one-half feet away. Nelloms v. State, 273 Ga. App. 448, 615 S.E.2d 153 (2005). Trial court erred in failing to instruct the jury on the lesser-included offense of voluntary manslaughter under O.C.G.A. § 16-5-2(a) and in ruling that defendant could not introduce evidence relevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. § 24-4-401 et seq.) based on the cumulative effect of the victim’s alleged molestation of defendant’s niece, defendant’s discovery thereof, and the victim’s taunt. Scott v. State, 291 Ga. 156, 728 S.E.2d 238 (2012). Trial court erred when the court failed to give a requested charge on voluntary manslaughter as there was evidence the defendant acted out of irresistible passion when the defendant came upon the wife and paramour and stabbed the paramour while yelling ‘‘This is what you get for f***ing somebody’s wife,’’ after they had been married for 15 years, and the fact that the crime occurred at the wife’s mother’s house was of no consequence as there was no territorial restrictions under O.C.G.A. § 16-5-2(a). Clough v. State, 298 Ga. 594, 783 S.E.2d 637 (2016). Failure to instruct on voluntary manslaughter not error. — See Kitchens v. State, 251 Ga. 36, 302 S.E.2d 569 (1983); Elliott v. State, 253 Ga. 417, 320 S.E.2d 361 (1984). Where there was no evidence beyond, perhaps, mere words, of provocation or of a mutual intent to fight, as a matter of law these facts did not present the necessary evidence of sufficient provocation to excite the passions of a reasonable person which would have entitled the defendant to a charge on voluntary manslaughter. Pace v. State, 258 Ga. 225, 367 S.E.2d 827 (1988). Voluntary manslaughter charge is not warranted when the only alleged evidence of provocation is the victim resisting an armed robbery. Nance v. State, 272 Ga. 217, 526 S.E.2d 560, cert. denied, 531 U.S. 950, 121 S. Ct. 353, 148 L. Ed. 2d 284 (2000); Chapman v. State, 275 Ga. 314, 565 S.E.2d 442 (2002), overruled on other 16-5-2 grounds, Worthen v. State, 304 Ga. 862, 823 S.E.2d 291 (2019). Court in a murder prosecution did not err in refusing to charge voluntary manslaughter since there was no evidence of provocation or passion since the defendant did not testify that the defendant was angry when the defendant shot the victim but that the defendant was trying to calm the victim down by demonstrating that the defendant’s gun would not fire, that the defendant pointed the gun at the windshield and pulled the trigger, thinking the gun would not fire until the trigger was pulled a second time, and that the victim jerked the defendant’s hand toward the victim as the gun fired. Alexis v. State, 273 Ga. 423, 541 S.E.2d 636 (2001). Trial court did not err by failing to give a jury charge on voluntary manslaughter as the evidence showed that the defendant initiated the conflict by aggressively assaulting the victims with deadly force, and that one victim only threw a radio at the defendant in an effort to protect the victim’s nephew from threatened deadly harm. Johnson v. State, 275 Ga. 630, 570 S.E.2d 309 (2002). Trial court did not err in refusing to charge the jury on voluntary manslaughter in a case in which the defendant was dating someone who decided to end their relationship and date someone else, the murder victim, as the defendant did not show that the murder victim seriously provoked the defendant and that the defendant reacted passionately when the murder victim tried to escort the defendant from the apartment after the defendant went there after the breakup, and the defendant suddenly stabbed the murder victim to death. Daniels v. State, 276 Ga. 632, 580 S.E.2d 221 (2003). When, in a murder prosecution, the trial court did not charge the jury on voluntary manslaughter, this was not error because there was no evidence to show that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Morgan v. State, 279 Ga. 6, 608 S.E.2d 619 (2005). In a murder prosecution, a defendant was not entitled to an instruction on vol- 554 untary manslaughter because testimony that the defendant shot the victim because the defendant panicked and was frightened showed, at best, that the defendant was attempting to repel an attack, not that there was sufficient anger to invoke passion. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006). In a murder prosecution, a jury charge on voluntary manslaughter, as a lesser-included offense, was unwarranted, as the evidence showed that the defendant had the chance to walk away from a heated argument with the victim, but instead calmly retrieved a knife, concealed it, and deliberately re-initiated the argument before plunging the knife into the victim’s abdomen. Ballard v. State, 281 Ga. 232, 637 S.E.2d 401 (2006). Trial court did not err by failing to give a defendant’s requested jury instruction on voluntary manslaughter, and by rejecting the defendant’s claim that the jury could have inferred that the defendant ‘‘snapped’’ emotionally and killed the victim in the heat of passion; the defendant testified that the shooting was an accident. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006). Trial court’s refusal to charge the jury on voluntary manslaughter as a lesser included offense of murder was not erroneous when evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking. Walker v. State, 281 Ga. 521, 640 S.E.2d 274 (2007). Since there existed no evidence that, at the time the fatal shots were fired into a victim, the defendant was acting with the sort of anger or passion which would support the requested charge on the lesser included offense of voluntary manslaughter to malice murder, the trial court did not err when the court denied the defendant’s request for the charge on the lesser included offense. Hunter v. State, 281 Ga. 693, 642 S.E.2d 668 (2007). Since the state’s evidence did not show a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person, and since the defendant’s evidence that the defendant was not present when the victim was killed did not show a killing arising from such passion, a 16-5-2 trial court did not err in refusing to give a requested charge on the offense of voluntary manslaughter. Culmer v. State, 282 Ga. 330, 647 S.E.2d 30 (2007). In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as no evidence of provocation was presented and the evidence showed that the victim was killed during the defendant’s effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007). In a murder trial, the trial court did not err in not giving an instruction on voluntary manslaughter; the state’s evidence did not warrant such a charge, and the defendant’s testimony that the defendant shot the victim in self-defense at best showed that the defendant was attempting to repel an attack, not that the defendant reacted passionately. Jackson v. State, 282 Ga. 494, 651 S.E.2d 702 (2007). With regard to a defendant’s conviction for felony murder arising out of the stabbing death of the love interest of the defendant’s spouse, the trial court properly refused the defendant’s request for a jury instruction on adulterous conduct as provocation for voluntary manslaughter because the evidence in the case did not warrant the instruction in as much as there was no evidence that the defendant acted solely as the result of a serious provocation, adultery, or otherwise, that excited the defendant in a sudden, violent, and irresistible passion, so as to authorize a finding of voluntary manslaughter. In fact, the defendant testified that the defendant was angry with the victim because the victim owed the defendant money and that the defendant went to see the victim in order to reach an agreement about the money. Velazquez v. State, 282 Ga. 871, 655 S.E.2d 806 (2008). In a malice murder prosecution, as the evidence did not show the defendant was provoked seriously enough to cause a reasonable person to fatally stab the victim, the defendant was not entitled to a voluntary manslaughter instruction under O.C.G.A. § 16-5-2(a). Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008). In defendant’s prosecution for malice 555 Jury Charge (Cont’d) murder, the defendant was not entitled to a jury instruction on voluntary manslaughter as no sudden, violent, and irresistible passion under O.C.G.A. § 16-5-2(a) was shown because the divorce from the defendant’s spouse, who was the victim, had been pending for over a year and the murder was the result of a carefully planned hit. Sullivan v. State, 284 Ga. 358, 667 S.E.2d 32 (2008). Evidence was insufficient to establish a reasonable probability that the jury would have found defendant guilty of voluntary manslaughter and thus trial counsel was not ineffective in requesting this instruction since the evidence demonstrated that the victim and defendant were in rival gangs; that the victim and others drove into an apartment complex to pick up a friend; that an occupant in the victim’s vehicle poked a gun out of a window; and that defendant and the defendant’s codefendant shot at the vehicle, killing the victim and wounding others. Hung v. State, 284 Ga. 796, 671 S.E.2d 811 (2009). Trial court did not err in refusing to give a jury instruction on voluntary manslaughter in the defendant’s criminal trial on a charge of, inter alia, malice murder as the evidence did not reflect that the defendant’s use of a gun to fatally shoot the victim amounted to reckless conduct or another misdemeanor. Jones v. State, 285 Ga. 328, 676 S.E.2d 225 (2009). Trial court did not err by refusing to give the defendant’s request for a jury instruction on voluntary manslaughter because the record failed to reveal any evidence that would support a voluntary manslaughter charge; the evidence and testimony at trial revealed that although a gun was in the victim’s car at the time of the murder, the victim did not say or do anything before the defendant shot the victim, let alone do anything that would constitute the ‘‘serious provocation’’ necessary to warrant a charge on voluntary manslaughter. Lawrence v. State, 286 Ga. 533, 690 S.E.2d 801 (2010). Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included crime of malice murder because a charge on voluntary 16-5-2 manslaughter was precluded by the evidence when there was no evidence to illustrate the existence of provocation before the fatal shots were fired; the defendant assaulted the victim with a deadly weapon and then fired the fatal shots into the victim’s back, and there was no evidence that the defendant had any type of relationship with the friend who was arguing with the victim that would explain an impassioned attack. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010). Trial court did not err in ruling that because the court was instructing the jury on self-defense, the court would not give the defendant’s requested charge on voluntary manslaughter since any evidence showing that the defendant was fearful that the victim or the defendant’s friend had a gun and was about to draw the gun without more, did not show the serious provocation and the sudden, violent, and irresistible passion required to warrant an instruction on voluntary manslaughter. White v. State, 287 Ga. 208, 695 S.E.2d 222 (2010). Trial court did not err in refusing to charge a jury on voluntary manslaughter as a lesser included offense of malice murder because, as a matter of law, the defendant’s former girlfriend’s statement that she was out with another man was not sufficient to excite sudden, violent, and irresistible passion in a reasonable person pursuant to O.C.G.A. § 16-5-2. Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (2010). Trial court did not err by failing to give the defendant’s requested charges on voluntary manslaughter because there was not even slight evidence of the passion or provocation needed to authorize a charge on voluntary manslaughter since the victim was not intoxicated, and the victim’s behavior was not belligerent or provocative; the victim was shot from a considerable distance as the victim was peacefully leaving a party. Allen v. State, 288 Ga. 263, 702 S.E.2d 869 (2010). After the defendant killed the male victim during an altercation but then killed the male victim’s female companion without provocation, the trial court did not err in refusing to instruct the jury on the lesser offense of voluntary manslaughter regarding the murder of the female victim 556 because there was no showing that the female victim was involved in the argument or the struggle between the male combatants; thus, the second murder could not be said to have resulted from a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite passion in a reasonable person. Bryant v. State, 288 Ga. 876, 708 S.E.2d 362 (2011). Voluntary manslaughter instruction rejected when committed during assault of female. — In defendant’s trial on charges of malice murder, three counts of aggravated battery, aggravated sodomy, kidnapping with bodily injury, and aggravated assault after the defendant grabbed a woman who was riding a bike, dragged her to a concealed area, and sexually assaulted, beat, and killed her, the trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser-included offense of malice murder because there was not even slight evidence to suggest that the victim was killed for any reason other than she bit defendant’s penis after he forced it into her mouth in an attempt to commit aggravated sodomy against her, facts that could not form the basis of a charge on voluntary manslaughter. Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, cert. denied, U.S. , 132 S. Ct. 556, 181 L. Ed. 2d 401 (2011); overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018) . Voluntary manslaughter charge rejected in absence of romantic relationship. — During the defendant’s trial for murder, the trial court did not err by refusing the defendant’s request to charge the jury on voluntary manslaughter because in the absence of any evidence of a romantic relationship between the defendant and the teenaged victim, there could be no serious provocation created by the victim’s call to her ex-boyfriend that could have aroused passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a). Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011). Trial court did not err in failing to give the codefendant’s requested charge on voluntary manslaughter because the threat against the defendant did not rise to the 16-5-2 level of a serious provocation of the codefendant sufficient to excite sudden, violent, and irresistible passion in a reasonable person that would require a charge on voluntary manslaughter; although more than mere words were used against the defendant, the codefendant was not present during the alleged provocation, but instead, the evidence showed, at most, that the incident was subsequently communicated to the codefendant and, thus, objectively, the codefendant’s response to the provoking incident was unreasonable. Howard v. State, 288 Ga. 741, 707 S.E.2d 80 (2011). Voluntary manslaughter instruction rejected when defendant claimed to ‘‘snap’’. — Trial court did not err in refusing to give a voluntary manslaughter charge because the evidence was insufficient to show that the defendant acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a); the defendant testified that the defendant and the victim were having an argument about money, the defendant was getting agitated and angry, the victim stated ‘‘remember what happened to your ass the last time and I will do it again,’’ and the defendant snapped. Gresham v. State, 289 Ga. 103, 709 S.E.2d 780 (2011). Absence of ‘‘serious provocation’’ meant no voluntary manslaughter charge. — Trial court did not err by refusing to charge the jury on voluntary manslaughter because the defendant’s testimony that the defendant was not upset but fired a gun out of fear, in self-defense, and in defense of the defendant’s parent showed that the defendant did not shoot a child in the heat of passion, and the other evidence was not to the contrary; rather, the testimony of the neighbors, who were the child’s parents and the only other trial witnesses present during the shooting demonstrated, at most, that the defendant could have opened fire in response to the neighbors’ heated or angry statements, which, as a matter of law, could not constitute ‘‘serious provocation’’ within the meaning of O.C.G.A. § 16-5-2(a). Davidson v. State, 289 Ga. 194, 709 S.E.2d 814 (2011). 557 Jury Charge (Cont’d) Trial court’s failure to instruct a jury on the lesser included offense of voluntary manslaughter was not error since there was no evidence that the defendant acted in response to a sudden, violent passion resulting from serious provocation. The victim’s death was either the cold, calculated method by which defendant intended to profit or, at best, the unfortunate result of resisting an armed robbery. McNeal v. State, 289 Ga. 711, 715 S.E.2d 95 (2011). Acting out of fear not justification for voluntary manslaughter charge. — During the defendant’s murder trial, the trial court did not err by denying the defendant’s request to charge on the lesser included offense of voluntary manslaughter, O.C.G.A. § 16-5-2, since the defendant testified that the defendant fired a pistol because the defendant was ‘‘just scared,’’ and acting out of fear was not the same as acting in the heat of a sudden irresistible passion. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011). Defendant was not entitled to an instruction on voluntary manslaughter because, while the testimony provided some evidence that the defendant might have acted in self-defense, there was no evidence that the defendant acted passionately. Allen v. State, 290 Ga. 743, 723 S.E.2d 684 (2012). Trial court did not give the jury an incomplete charge regarding the lesser included offense of voluntary manslaughter because the instruction did not prevent the jury from fully considering voluntary manslaughter and was adequate to inform the jury that, before the jury could convict defendant of malice or felony murder, the jury had to first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012). Habeas court erred in granting a petitioner relief on the ground that the trial court erred when the court refused to instruct the jury on the offense of voluntary manslaughter under O.C.G.A. § 16-5-2(a) when appellate counsel failed to present the question on direct appeal, 16-5-2 and neither the petitioner’s nor the state’s evidence tended to show a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Humphrey v. Lewis, 291 Ga. 202, 728 S.E.2d 603 (2012). In a case in which the defendant was convicted of felony murder and armed robbery, the trial court did not err by failing to charge the jury on the lesser included offense of voluntary manslaughter when the defendant took the victim’s bicycle at gunpoint, and when the defendant saw the victim on the telephone, the defendant began chasing the victim and shot the victim in the throat; this evidence did not show the sudden, violent, and irresistible passion required to warrant an instruction on voluntary manslaughter. Milford v. State, 291 Ga. 347, 729 S.E.2d 352 (2012). Evidence did not support a jury instruction on voluntary manslaughter as the evidence showed, at most, that the defendant and the victim, the defendant’s wife, argued about the defendant’s infidelity and that the defendant choked the victim the next morning. It appeared that a few hours had passed between the argument and the killing. Merritt v. State, 292 Ga. 327, 737 S.E.2d 673 (2013). In an action charging the defendant with felony murder, the defendant was not entitled to a jury instruction on voluntary manslaughter and there was no evidence of provocative conduct by the victim sufficient to warrant such an instruction. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013). Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of malice murder because there was no serious provocation that would have elicited a violent and irresistible passion in a reasonable person. Campbell v. State, 292 Ga. 766, 740 S.E.2d 115 (2013). Defendant was not entitled to a jury instruction on voluntary manslaughter as there was no evidence of irresistible passion of provocation or any factual basis to support a finding of voluntary manslaughter given that the defendant shot into an unsuspecting crowd of strangers. Foster v. State, 294 Ga. 383, 754 S.E.2d 33 (2014). 558 Trial court’s failure to give a jury instruction on voluntary manslaughter was not error, because the mere fact that the defendant and the victim argued before the defendant left the house, retrieved an axe, and began the attack did not support such an instruction, and there was no evidence that the victim had recently engaged in sexual relations with the victim’s out-of-state spouse or taunted the defendant with such conduct. Brown v. State, 294 Ga. 677, 755 S.E.2d 699 (2014). Evidence did not support a jury instruction on involuntary manslaughter as there was no evidence that the defendant killed the victim as a result of a sudden, violent, and irresistible passion or that the victims provoked the defendant, who shot unarmed victims from behind and chased the victims as the victims tried to flee. Moore v. State, 295 Ga. 709, 763 S.E.2d 670 (2014). In defendant’s trial for the murder of the defendant’s estranged spouse and housemate, the trial court properly declined to instruct the jury on voluntary manslaughter because, although the defendant and the spouse had ongoing difficulties, there was no evidence of any specific provocation at the time of the murders to generate a sudden and irresistible passion. Russell v. State, 295 Ga. 899, 764 S.E.2d 812 (2014). Trial court’s failure to charge on voluntary manslaughter was not plain error because there was no evidence that the other gang members had guns or shot at the appellant and the only shell casings at the scene were found where appellant was seen firing a gun, plus, even if words were exchanged prior to the event, as a matter of law, angry statements alone ordinarily did not amount to serious provocation within the meaning of a voluntary manslaughter charge. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016). In a felony murder conviction, the trial court did not err in refusing to instruct the jury on the lesser charge of voluntary manslaughter because no plain error existed as the evidence showed that the defendant had substantial time to cool down after the defendant learned that the 16-5-2 victim was not going to procure the cigarettes for the defendant and before the defendant intentionally sought out the victim because the fact that the defendant discussed the matter with a cellmate, procured the shank, and then later went in search of the victim was evidence that the defendant acted in a rational and calculated fashion rather than solely as a result of a sudden, violent, and irresistible passion. Barron v. State, 297 Ga. 706, 777 S.E.2d 435 (2015). There was no evidence to support a voluntary manslaughter charge because the defendant’s antagonistic relationship with the victim, the family’s financial problems, and the victim’s laughter when the defendant arrived home on the evening of the shooting were not the sorts of provocations that were sufficiently serious to provoke a sudden, violent, and irresistible passion that would compel a reasonable person to kill; and the defendant’s anger was not triggered by an immediate argument and instead of just pulling out a gun and shooting, the defendant had to go to the defendant’s bedroom to get a gun, unlock the hammer, load the gun, return with the gun to the living room, and shoot the unarmed, television-watching victim in the back of head. Johnson v. State, 297 Ga. 839, 778 S.E.2d 769 (2015). Defendant was convicted of malice murder in connection with the fatal shooting of the defendant’s spouse; the trial court did not err when the court refused to charge the jury on voluntary manslaughter because, although the defendant pointed to some proof of potential provocation, the defendant’s case presented not even a pretense of passion, much less that the defendant acted solely as the result of a passion that was sudden and irresistible. Harris v. State, 299 Ga. 642, 791 S.E.2d 32 (2016). Trial court did not err in refusing the defendant’s request to charge the jury on voluntary manslaughter as a lesser included offense of murder, because there was no evidence presented that the defendant shot the victim due to an irresistible passion. Wright v. State, 300 Ga. 185, 794 S.E.2d 105 (2016). When the defendant was convicted of the murder of the defendant’s sister, the 559 Jury Charge (Cont’d) victim, the defendant’s request to instruct the jury on the lesser included offense of voluntary manslaughter was properly denied because the defendant’s testimony did not provide evidence that the defendant stabbed the victim due to a sudden, irresistible passion as the defendant stated repeatedly that the defendant stabbed the victim because the defendant believed that the victim had stolen the defendant’s Social Security check; about an hour before the murder, the defendant stated the defendant’s intention to kill the victim; and the defendant testified that the defendant was not angry with the victim when the defendant confronted the victim. Jackson v. State, 301 Ga. 878, 804 S.E.2d 357 (2017). Trial court did not commit plain error by limiting the jury’s consideration of voluntary manslaughter such that the jury could find it a lesser-included offense of only malice murder, and not felony murder, as a voluntary manslaughter instruction was not warranted at all because, although the defendant was distraught and angry on the night of the shooting for various reasons, including the death of the defendant’s ex-wife and the defendant’s argument with the ex-girlfriend, the victim’s angry statements alone did not amount to serious provocation; and the defendant’s acting out of fear of bodily harm from the victim was not the same as acting in the heat of passion, and only evidence of the latter supported a voluntary manslaughter conviction. Burke v. State, 302 Ga. 786, 809 S.E.2d 765 (2018), cert. denied, 139 S. Ct. 294, 2018 U.S. LEXIS 4842, 202 L. Ed. 2d 194 (U.S. 2018). No jury charge on voluntary manslaughter was required as there was no evidence of sufficient provocation to excite the passions of a reasonable person because the victim’s statements that the victim was in love with someone else and that the victim did not love the defendant any more were not sufficiently provocative to excite sudden, violent, and irresistible passion necessary for voluntary manslaughter as the statements did not dis- 16-5-2 close adulterous, sexual conduct; and there was no evidence that the victim taunted the defendant with, bragged about, or even recounted to the defendant any sexual relations with another man. Ware v. State, 303 Ga. 847, 815 S.E.2d 837 (2018). When the defendant allegedly rejected a plea offer on voluntary manslaughter based on counsel’s alleged advice to the defendant that the trial court would definitely charge the jury on voluntary manslaughter, counsel was not ineffective because, even if an instruction on voluntary manslaughter had been given at trial as counsel requested, there was no guarantee and no allegation that counsel promised that the jury would return a verdict on the lesser included offense; and the defendant failed to show there was a reasonable probability that the defendant would have accepted the plea offer but for counsel’s advice. Johnson v. State, 305 Ga. 475, 826 S.E.2d 89 (2019). Trial court need not charge on involuntary manslaughter in course of lawful act, where the defense is based upon self-defense, which is fully charged to the jury. King v. State, 177 Ga. App. 788, 341 S.E.2d 307 (1986). Instruction on involuntary manslaughter unwarranted. — In a trial for voluntary manslaughter, aggravated assault, and battery, it was not error to refuse to charge on the lesser included offense of involuntary manslaughter under O.C.G.A. § 16-5-3(a). Such a charge required an unlawful act that was not a felony, and the only such act supported by the evidence was the striking of the victim with a gun, which constituted the felony of aggravated assault under O.C.G.A. § 16-5-21. Moon v.