Allen v. State

902 S.E.2d 615

ALLEN

v.The STATE.

S24A0171

Supreme Court of Georgia.

Decided: May 29, 2024

Charles E.W. Barrow, Wiggins-Casto-Barrow, 1551 Jennings Mill Road, Suite 3300, Watkinsville Georgia 30677, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Michael Alexander Oldham, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta Georgia 30334-1300, David Parks White, District Attorney, Northern Judicial Circuit District Attorney’s Office, P.O. Box 515, Hartwell Georgia 30643, for Appellee.

Peterson, Presiding Justice.

[1–3] The right to trial by jury is the cornerstone of our justice system. "That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary." Blakely v. Washington, 542 U.S. 296, 305-306, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, a critical element of that right is that certain questions are to be decided not by judges, but by jurors — ordinary members of a defendant’s local community, informed by local mores and values.

The General Assembly has determined that one such question is whether a killing immediately following a serious provocation should be punished as voluntary manslaughter instead of murder. See OCGA § 16-5-2. When any evidence of such serious provocation exists, it is for the jury, not a judge, to decide whether the provocation was sufficient to mitigate the culpability. This is such a case.

Sherman Lamont Allen appeals his conviction for malice murder in connection with the beating death of his cousin, Treston Smith. In his sole enumeration of error, Allen argues that the trial court erred in denying his request to instruct the jury on voluntary manslaughter as a lesser offense of murder. Because there was sufficient evidence to support the jury instruction, the court erred in refusing to give it. And because the State has failed to carry its burden to show that it is highly probable that the error did not contribute to the verdict, that error requires us to reverse Allen’s murder conviction.¹

1. The evidence at trial showed as follows.² Allen and Tia Allen began a romantic relationship around 2005. They lived together, raised Tia’s son together, and had two children of their own. Although the couple never married, they considered themselves to be married. Tia referred to Allen as her "fiancé" and considered herself married, and Allen claimed that Tia would introduce him as her "husband."

In December 2016, Tia became friends with Smith, who was married and had children of his own. They began talking on a regular basis as friends and eventually developed a sexual relationship that Tia described as an affair. Sometime in January, Allen heard a rumor about Tia and Smith. In a police interview, Allen stated that he got a call after work from someone who asked if he and Tia were "okay" because someone "caught" Tia and Smith in a car. Although Allen’s description of what transpired was not very clear, he said that he then confronted Tia and told her that if she were "really messin’ around" then they should go their separate ways, and that Tia denied being with Smith. Allen testified that he confronted Tia sometime in January. According to Allen, Tia also told him to ask her friend who was present, but Allen declined because he knew Tia’s friend would lie for her about the rumor he heard.

According to Tia, Allen then "let it go," and she continued her affair with Smith. According to Tia, she first had sex with Smith in February 2017, and she claimed to have sex with him on two occasions. She said she would meet Smith when Allen was asleep or at work, and they would travel from Elberton to Atlanta to be together.

On the evening of March 15, Allen went to work. At 3:19 a.m. on the morning of March 16, he left work. Around 3:50 a.m., after getting breakfast, he went to a gas station and drove around to the back. Smith had parked his tractor-trailer there, and Tia and Smith were together in her parked car near- by. According to Tia, they were in the car together for a few minutes talking and kissing, and then Smith got out of Tia’s car so that she could drive to work in Athens.

Smith had just gotten out of Tia’s car when Allen drove behind the gas station. Allen got out of his vehicle, hit the front driver-side window of Tia’s car with his hand, and said, "B**ch, what you think you doing?" Tia drove off to work. She testified that Allen appeared to be "pretty angry" when he hit her car and yelled at her.

After Tia drove off, Allen engaged Smith in a verbal altercation that led to a physical fight. Surveillance videos from the gas station, which were played for the jury at trial, captured some, but not all, of the fight, because a truck obstructed the view. The video recordings do not show the start of the fight. At some point, Allen and Smith came into the camera’s view. Allen, who was wearing steel-toed boots, could be seen beating and kicking Smith, who was on the ground at that point. Allen then got into his vehicle, drove forward a short distance, stopped his vehicle, backed up, got out, and resumed beating Smith while Smith was lying on the ground. Allen then left the scene. According to the owner of the gas station, who called 911, Allen approached Smith, pulled him out of his tractor-trailer, "beat him," and repeatedly kicked him in the face while he was lying on the ground.

Driving home from the gas station, Allen called Tia multiple times to ask "what’s going on" and called several relatives to tell them that he "got in a fight." He showered and changed clothes at home.

Law enforcement officers responded to the scene and found Smith "face down … in the gravel, dirt area[.]"The coroner pronounced Smith dead at the scene. The front of Smith’s body was muddy but not his back. Shortly after 6:00 a.m., Allen turned himself in at the Elbert County Sheriff’s Office.

Dr. Colin Hebert, the medical examiner who performed Smith’s autopsy, noted that Smith’s "head had a lot of swelling and bruising, lacerations, and scrapes, abrasions." Dr. Hebert found gravel embedded in Smith’s face, mouth, and tongue. Smith did not have "much in the way of injury on his body below [his] head[.]"Dr. Hebert concluded that Smith died of blunt force trauma of the head.

At trial, Allen testified in his own defense, stating the following. He left work before his shift ended because he completed his assignments. He went directly to a restaurant, ordered food to go, and waited there about 30 minutes because the cook was on a break. After he left the restaurant and neared his home, he decided that he wanted to "take a little detour" and "go riding a round," which he stated was normal for him to do. He said that he stopped at the gas station to adjust a window that was rattling and then circled behind the gas station to turn around, which he also stated was his normal practice. Allen claimed that he did not expect Tia and Smith to be behind the gas station, but when he rounded the corner, he recognized Tia in her car and saw Smith getting out of the car. Smith then walked away from the car.

Allen claimed that he got out of his vehicle and walked toward Tia’s car. "I noticed them then," Allen testified, "and I’m like two and two together like this, uh, so it’s really true." He admitted to approaching her car, hitting it with the palm of his hand, and calling Tia a "b**ch." He said he was angry, mad, and hurt, because the person he saw Tia with was the same person whom he had asked her about before and the person she had denied having an affair with. Allen said that Tia looked at him like, "damn, I’ve been caught." Allen acknowledged that he then approached Smith but denied pulling Smith out of his tractor-trailer. Allen said that he and Smith talked for two to five minutes before fighting. Allen testified that he asked Smith what was going on, and Smith was "telling [Allen] something was going on between them." When asked specifically what Allen asked Smith, Allen said that he referenced Smith’s status as a married man with his own family and asked, "why you trying to, you know, destroy mine; f**king up mine?" Allen testified that Smith merely responded to each question by repeating, "man, f**k you" with a smirk on his face. Allen also said that Smith initiated the fight by punching Allen "dead in my face" and that the two men went to the ground where Allen put Smith in a chokehold. Allen stated that when he stood up to leave, he "got stabbed in the leg" with a knife, so Allen began fighting again, took the knife from Smith, and got into his vehicle.³ Allen said that he stopped his vehicle and went back to kick Smith some more because he was angry that Smith had stabbed him. Allen denied ever kicking Smith in the face or head.

Although Allen said at one point in his testimony that he was not "angry like vicious mad," Allen clarified that he was angry when he saw Tia and Smith. And throughout his testimony, Allen repeatedly said that he was angry when he was asking Smith questions. And he said he was "still angry and mad" when he returned to continue fighting Smith. Allen testified that he did not intend to injure or kill Smith and was merely trying to protect himself.

During his police interview, which was recorded and played for the jury, Allen said that he drove to the gas station because he had a "feeling of something being off." Referring to Tia as his "fiancé and the mother of [my] kids," Allen stated that when he approached her, he asked, "why you lie?" Allen also said he told Smith, "you married, you got your own, you got everything," "you got a wife," and asked, "you really would do this to my family?",...