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Burke v. State

Supreme Court of Georgia

January 29, 2018


          Peterson, Justice

         William Burke appeals his convictions for felony murder and possession of a firearm during the commission of a felony, charges stemming from the death of Andrew Daly.[1] He argues that the trial court improperly limited the jury's consideration of voluntary manslaughter to a lesser offense of only malice murder, both in its oral instructions and on the verdict form, so that the jury had no option to consider the lesser offense in relation to the felony murder charge. Finding that the trial court committed no plain error in this regard because the evidence did not support a finding of voluntary manslaughter, we affirm.

         The victim in this case was the boyfriend of Burke's ex-girlfriend and landlord, Evangeline Sotus. Burke and Sotus had a long-term romantic involvement before breaking up in early 2011. Sotus testified that she was concerned about Burke's belligerence when he drank. After their break-up, Burke moved into the top level of Sotus's home. In the summer of 2012, Sotus met Daly, and the two became romantically involved. Sotus observed that the two men were civil to one another.

         On November 20, 2012, Sotus traveled to New York. She informed Burke that Daly would be checking on her cats and had permission to be in the house. Burke and Daly apparently continued to be civil to one another; Daly even made breakfast for Burke the morning of November 25.

         In phone conversations with Sotus later that day, Burke seemed to be intoxicated. At one point, Burke called Sotus and informed her that his ex-wife had died. She urged Burke to sober up, leading Burke to become belligerent and call and text her repeatedly. Sotus called Daly and warned him to stay away from her house, but Daly did not seem concerned, and said he wanted to go there to do laundry.

         Meanwhile, Burke posted on Facebook that Sotus "was a total waste" when he needed her and that her boyfriends should "watch out." Burke called a friend, Gerald Landers, who noted that Burke seemed extremely intoxicated. Burke cut off their conversation, indicating that he had an unexpected visitor; Landers heard Burke say, "Who's there, who's there."

         The lower-level tenant of Sotus's house, Valetta Anderson, heard footsteps above, then arguing and shouting. Anderson heard someone other than Burke say "motherf***er." She heard a "pop" sound, then someone falling. Burke promptly knocked on Anderson's door and asked her to accompany him upstairs to the main level, where she saw Daly lying on the floor. Burke told Anderson that Daly "came at" him and asked her to call 911.

         Police who arrived at the home found Daly dead of a gunshot wound to the head. They observed nunchucks on the kitchen table and found a loaded revolver (that belonged to Sotus) underneath Daly's body. Burke told police, "I didn't mean to. He threatened me with some nunchucks." Law enforcement found another gun lying on a bed in Burke's apartment.

         Burke testified at trial[2] that he had no problem with Daly. Burke testified that on the night of Daly's death, he was in his own apartment when he heard a voice that he did not recognize yell from downstairs, "Hey, motherf***er, I know you're up there. You better come down or I'm coming to get your a**." When he went downstairs with his gun into the main level of the house, Burke testified, most of the lights were off and he saw only a hand holding nunchucks. Burke said he heard the person say, "Mother f***er, I'm going to kill you." He testified that he heard something like a chair or table move and thought the person was swinging the nunchucks at him, so he "threw up" his hands and "[t]he gun went off." Burke acknowledged taking that gun back up to his apartment before going to Anderson's apartment. He testified that he did not intend to shoot anyone and did not know the identity of the victim until Anderson told him it was Daly.

         1. Although Burke does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to review the record independently to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Burke was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Burke argues that the trial court committed plain error by limiting the jury's consideration of voluntary manslaughter, such that it could find it a lesser-included offense of only malice murder. We disagree.

         The State requested a jury charge on voluntary manslaughter as a lesser included offense. Burke objected to the requested instruction, arguing that the State should not have charged him with malice murder and felony murder if it did not think it could convict him of those charges. The trial court agreed to give the voluntary manslaughter instruction, telling jurors:

A person commits voluntary manslaughter when that person causes the death of another human being under circumstances that would otherwise be murder if that person 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. If there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, which the jury in all cases shall decide, the killing may be attributed to revenge and punished as for murder.

         The court read that instruction after the malice murder charge but before the felony murder and aggravated assault charges. The verdict form clearly limited the jury's consideration of manslaughter to the malice murder charge, giving the options of "Not Guilty, " "Guilty, " and "Guilty, of the Lesser Included Charge of Voluntary Manslaughter" under the malice murder count but listing only "Not Guilty" and "Guilty" options under the other counts. During deliberations, the jury asked, "Are voluntary manslaughter and aggravated assault/felony murder ...

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