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. 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.
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.
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.
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.
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,
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.
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
testified at trial 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.
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).
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.
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
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.
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 ...