319 Ga. 56 FINAL COPY
S24A0405. ANDERSON v. THE STATE.
PINSON, Justice.
Clark Chandler Anderson shot and killed Kevin Murr. At trial,
Anderson argued the killing was voluntary manslaughter, not
murder, because he shot Murr after being seriously provoked, but
the jury found Anderson guilty of malice murder. On appeal,
Anderson contends that insufficient evidence supported his
convictions, that the trial court should have given Anderson’s
requested jury instruction about voluntary manslaughter, and that
his trial counsel was ineffective for failing to object to three pieces of
testimony from his co-workers that, in Anderson’s view, were
inadmissible character evidence.
We conclude that the evidence was sufficient to support
Anderson’s conviction for malice murder because it showed that he
intentionally shot Murr 16 times. We further conclude that no jury
instruction about voluntary manslaughter was required because the provocation that Anderson claims—Murr yelling and cursing at him
and threatening to get a gun—was not enough to excite the “sudden,
violent, and irresistible passion” that could warrant a jury
instruction on voluntary manslaughter. And counsel was not
ineffective for failing to object to the co-workers’ testimony: counsel
wanted the jury to hear some of the testimony because it would serve
counsel’s strategy of trying to evoke the jury’s sympathy, and
Anderson suffered no prejudice from the remaining testimony. So
we affirm Anderson’s convictions.
1. Anderson was convicted of malice murder and other crimes
in connection with the shooting death of Murr.1 The evidence at trial
1 The shooting occurred on June 7, 2020. On October 28, 2020, a Paulding
County grand jury indicted Anderson for malice murder, felony murder predicated on aggravated assault, aggravated assault of Murr, aggravated assault of Carol Anderson, and possession of a firearm during the commission of a felony. He was tried by a jury from June 6 to 8, 2022. The jury found Anderson not guilty of the aggravated assault of Carol Anderson but guilty of the remaining charges. He was sentenced to life in prison without the possibility of parole for malice murder, with a consecutive term of five years in prison for possession of a firearm during the commission of a felony. The remaining counts were merged or vacated by operation of law. Anderson filed a timely motion for new trial, which he later amended through new counsel. After a hearing and supplemental briefing, the trial court denied the motion for new trial, as amended, on October 23, 2023. Anderson filed a timely notice
2 showed the following.
Anderson lived with his mother, Carol, and Carol’s fiancé,
Murr. Carol and Murr had been together for nine and a half years,
and Carol and Anderson had moved in with Murr about a year before
the shooting. Carol described Anderson and Murr’s relationship as
“generally good,” although she acknowledged that Anderson “was a
little distrustful” and that the two “were both a little back and forth
sometimes.”
Anderson and Murr’s relationship grew more fraught a few
months before the shooting. Starting around that time, Anderson
described Murr to co-workers as an “evil piece of s**t” and said he
hated Murr and wanted to kill him. In Anderson’s text messages to
a co-worker from about three months before the shooting, which
were read to the jury, Anderson said he would probably kill Murr
“and shoot it out with the cops,” and that killing Murr would be
“easier than killing [an] ISIS or Taliban soldier.”
of appeal. His case was docketed to the term of this Court beginning in December 2023 and submitted for a decision on the briefs. 3 On the morning of the shooting, Anderson left the house early
to go to work. Murr and Carol stayed home all day. When Anderson
returned home in the evening, he said he was tired and went to his
room.
A little later, Murr angrily went to Anderson’s closed bedroom
door. He began “banging on the door,” “screaming,” and “yelling” at
Anderson to come out and take a shower. Anderson—who had not
showered for “upwards to about a month”—responded repeatedly
that he would do it in the morning. During this commotion, Carol
came out from the main bedroom into the hallway to see what the
trouble was. Murr told her to “get the F back in there,” but Carol
remained in the hall.
Suddenly things grew “eerily quiet.” Carol and Murr heard a
clicking from inside Anderson’s room, which they recognized as the
sound of his gun. Ordinarily Carol and Murr would “roll [their] eyes”
when they heard that clicking sound, because they knew Anderson
was just playing with the gun. But this time it “felt different . . .
because of the yelling” that had just happened.
4 Shots rang out. Murr was hit through the closed door. Other
bullets hit the wall near where Carol was standing. Murr screamed
out, “GD you hit me,” and ran toward the kitchen. Carol followed.
Anderson emerged from his room and, in his own words, “kept
shooting” at Murr until his gun was empty—16 rounds in all. Murr
reached the kitchen and fell to the floor. He died soon after.
Murr had been hit five times in the chest and back. The bullets,
bullet holes, and spent shell casings found around his body
suggested that Anderson had fired some of those shots after Murr
was on the ground. Nevertheless, Carol testified that Anderson
performed CPR on Murr, to no avail, and that Anderson said, “Oh,
God, what have I done, what have I done, oh, F, what have I done .
. . mom, I’m sorry, mom, I’m sorry, God, I’m sorry.” Carol,
meanwhile, called 9-1-1.
Sheriff’s deputies arrived at the scene. The first responding
officer found Anderson and Carol on the front steps of the house.
Anderson’s hands were covered in blood. He told the officer he had
shot Murr multiple times with a handgun.
5 Police took Anderson to the sheriff’s office. There, Anderson
waived his rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt
1602, 16 LE2d 694) (1966), and gave a recorded statement, portions
of which were played for the jury. In the statement, Anderson
admitted that he shot Murr. He said repeatedly that he was not
angry at Murr and did not lose his temper, but rather feared for
himself and his mother because Murr had threatened to get his own
gun. According to Anderson, when Murr was pounding on the
bedroom door, Anderson “racked the slide [of his gun] as a
deterrent.” Despite that deterrent, Murr eventually broke through
the locked door. Anderson then pushed the door closed and shot
Murr through the closed door.
At least one part of Anderson’s statement was undercut by
other trial evidence. Although Anderson claimed that Murr had
broken through the locked bedroom door, an officer testified that the
door was undamaged—except for the bullet holes.
2. Anderson contends that the evidence at trial was not
sufficient as a matter of constitutional due process to support his
6 conviction for malice murder. See Jackson v. Virginia, 443 U.S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “We evaluate a due
process challenge to the sufficiency of the evidence by viewing the
evidence presented at trial in the light most favorable to the
verdicts, and asking whether any rational trier of fact could have
found the defendant guilty beyond a reasonable doubt of the crimes
of which he was convicted.” Henderson v. State, 317 Ga. 66, 72 (2)
(891 SE2d 884) (2023). “We leave to the jury the resolution of
conflicts or inconsistencies in the evidence, credibility of witnesses,
and reasonable inferences to be derived from the facts.” Perkins v.
State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185) (2022) (citation and
punctuation omitted).
Under that standard, the evidence at Anderson’s trial was
sufficient to sustain his malice murder conviction. A person is guilty
of malice murder if “he unlawfully and with malice aforethought,
either express or implied, causes the death of another human being.”
OCGA § 16-5-1 (a). At Anderson’s trial, it was undisputed that
Anderson shot Murr. Not only that, but he shot him multiple times,
7 pursued him to the kitchen, and continued firing until the gun was
empty. Although Anderson had told police that he shot Murr out of
fear, he never asserted an affirmative defense of justification, asked
for a jury instruction on self-defense, or otherwise claimed at trial
that he shot Murr in self-defense. To the contrary, the evidence
showed that in the months leading up to the shooting, Anderson had
told his colleagues that he hated Murr and fantasized about killing
him. Presented with that evidence and the evidence at trial and
recounted in part above, a reasonable jury could find beyond a
reasonable doubt Anderson killed Murr with malice aforethought.
See Neason v. State, 317 Ga. 695, 698-699 (895 SE2d 278) (2023)
(evidence sufficient to support malice murder conviction when
multiple witnesses saw defendant shoot victim and defendant had
motive to kill victim); Whittaker v. State, 317 Ga. 127, 131 (2) (891
SE2d 849) (2023) (evidence sufficient to support malice murder
conviction when defendant stabbed victim 50 times and strangled
him, because defendant’s “brutal and excessive actions . . .
support[ed] the jury’s finding of the requisite malice and intent”).
8 Anderson contends on appeal that he “raised an affirmative
defense” that the killing was voluntary manslaughter, rather than
murder, because he “committed this crime out of a sudden, violent,
and irresistible passion,” and that the State failed to disprove that
defense beyond a reasonable doubt. But voluntary manslaughter is
a separate offense, not an affirmative defense to murder, so the
State was not required to disprove it beyond a reasonable doubt. See
OCGA §§ 16-3-20 to 16-3-28 (listing affirmative defenses); Wyman v.
State, 278 Ga. 339, 340-341 (3) (602 SE2d 619) (2004) (voluntary
manslaughter is not a defense to murder); cf. Clark v. State, 307 Ga.
537, 539-540 (1) (837 SE2d 265) (2019) (“When a defendant raises
an affirmative defense that is supported by some evidence, the State
has the burden of disproving that defense beyond a reasonable
doubt.”). And as explained in Division 4, no evidence supported a
voluntary manslaughter conviction in any event.
3. Anderson also argues that this Court should reverse his
conviction under the “general grounds” in OCGA §§ 5-5-20 and 5-5-
21. Those Code sections allow a trial court, on a motion for new trial,
9 to reverse a conviction if the conviction is “contrary to evidence and
the principles of justice and equity,” OCGA § 5-5-20, or “decidedly
and strongly against the weight of the evidence,” OCGA § 5-5-21.
But when we determine that the trial court has exercised its
discretion under OCGA §§ 5-5-20 and 5-5-21, we do not review the
merits of the general grounds on appeal. The decision whether to
reverse a conviction on the general grounds is left to the sole
discretion of the trial court. See, e.g., Adams v. State, 318 Ga. 105,
114 (2) (897 SE2d 396) (2024); King v. State, 316 Ga. 611, 616 (2)
(889 SE2d 851) (2023); Ridley v. State, 315 Ga. 452, 456 (3) (883
SE2d 357) (2023); Bundel v. State, 308 Ga. 317, 318 (1) (840 SE2d
349) (2020); Strother v. State, 305 Ga. 838, 843 (3) (828 SE2d 327)
(2019). Here, the trial court noted that it “ha[d] considered but
decline[d] to grant a new trial under the general grounds.” Absent
affirmative evidence to the contrary—and there is none here—we
presume that the trial court properly exercised its discretion in
10 denying a motion for new trial on the general grounds.2 See, e.g.,
Ward v. State, 316 Ga. 295, 299 (3) (888 SE2d 75) (2023).
Separately, Anderson contends that his conviction should be
reversed under OCGA § 5-5-25, which allows a court to grant a new
trial “on other grounds not provided for in this Code” if the court
finds that relief is required “according to the provisions of the
common law and practice of the courts.” But Anderson does not point
to any “other grounds” or support his contention with argument or
explanation. “[T]his Court is not required to scour the record for
support for an appellant’s arguments,” Davis v. State, 306 Ga. 140,
144 (3) (829 SE2d 321) (2019), and we decline to do so here. So
Anderson’s claim on this ground also fails.
4. Anderson contends that the trial court erred by refusing to
2 In the past, when evaluating a trial court’s denial of a motion for new
trial on the general grounds, we have sometimes reviewed the sufficiency of the evidence as a matter of constitutional due process under Jackson, 443 U.S. 307. See, e.g., Montgomery v. State, 315 Ga. 467, 474 (3) (883 SE2d 351) (2023). Many of us “question whether it is proper for this Court to import Jackson into an appellate review of the general grounds.” King, 316 Ga. at 616 (2) n.8. But we need not resolve that question here, because Anderson’s general-grounds claim fails in any event: the trial court exercised its discretion to deny the claim, and, as we explained above, the evidence was constitutionally sufficient to affirm Anderson’s convictions. See id. 11 give his requested jury instruction about voluntary manslaughter.
Voluntary manslaughter is the killing of another person, “under
circumstances which would otherwise be murder,” where the
perpetrator “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.” OCGA § 16-5-2 (a).
When a defendant requests a jury instruction on voluntary
manslaughter, as Anderson did here, the trial court must give the
instruction if there is “slight evidence” to support it—that is, if there
is slight evidence that the defendant, in killing the victim, acted
under a “serious provocation” that could excite a “sudden, violent,
and irresistible passion” in a reasonable person. See Mobley v. State,
314 Ga. 38, 42 (875 SE2d 655) (2022) (citations and punctuation
omitted). The existence, or not, of that “slight evidence” is a question
of law. See id. at 42-43. And when, as here, a defendant properly
preserves a claim that the trial court erred by refusing to instruct
the jury on an applicable principle of law, that claim is reviewed de
novo. See Eubanks v. State, 317 Ga. 563, 581 (3) (b) (894 SE2d 27)
12 (2023).
The trial court here did not err in refusing to give a voluntary
manslaughter instruction because no evidence supported giving one.
Anderson contends that he was seriously provoked by Murr
pounding on the door, yelling and cursing at him, and threatening
to get a gun. But threats and insults on their own are not enough to
support a voluntary manslaughter instruction. See, e.g., Smith v.
State, 296 Ga. 731, 737 (3) (770 SE2d 610) (2015) (“[N]either fear
that someone is going to pull a gun nor fighting are the types of
provocation which demand a voluntary manslaughter charge.”);
Rountree v. State, 316 Ga. 691, 694-695 (2) (889 SE2d 803) (2023)
(“threatening words and racial epithets” did not amount to serious
provocation, “no matter how menacing or offensive they were” to the
defendant); Hudson v. State, 308 Ga. 443, 446 (2) (a) (841 SE2d 696)
(2020) (voluntary manslaughter instruction not required where
victim used crude and insulting language toward defendant,
because “[t]here was no evidence whatsoever of provocation
sufficient to excite the passions of a reasonable person”). Here, the
13 evidence was that Murr yelled and cursed at Anderson, told him to
take a shower, and threatened to get his gun. Those threats and
insults, no matter how offensive to Anderson, did not subject him to
a provocation that would reduce his crime from murder to voluntary
manslaughter. See Smith, 296 Ga. at 737 (3). The trial court thus
did not err in declining to give the instruction. See Hudson, 308 Ga.
at 446 (2) (a).
Anderson also contends the trial court was required to give a
voluntary manslaughter instruction because it was his “sole
defense” at trial. See Price v. State, 289 Ga. 459, 459-460 (2) (712
SE2d 828) (2011) (“The trial court must charge the jury on the
defendant’s sole defense, even without a written request, if there is
some evidence to support the charge.”) (citation and punctuation
omitted). But voluntary manslaughter is a distinct offense, not a
defense to murder. See Wyman, 278 Ga. at 340-341 (3). And in any
event, as discussed above, no evidence supported the charge. See
Price, 289 Ga. at 459 (2).
5. Anderson contends that his trial counsel provided ineffective
14 assistance by failing to object to certain testimony from Anderson’s
co-workers. In Anderson’s view, that testimony was character
evidence that would have been excluded under OCGA §§ 24-4-404
(a) and 24-4-405 (a) had his counsel objected. See OCGA § 24-4-404
(a) (“[e]vidence of a person’s character or a trait of character shall
not be admissible for the purpose of proving action in conformity
therewith on a particular occasion,” subject to certain exceptions
that the State did not rely on here); OCGA § 24-4-405 (a) (requiring
that, whenever evidence of character is admissible, “proof shall be
made by testimony as to reputation or by testimony in the form of
an opinion”).
(a) Anderson identifies three pieces of testimony that he says
counsel should have tried to exclude. First, two of his co-workers
testified that he sometimes brought guns to work. Second, the same
two co-workers testified that Anderson falsely claimed to have
served in the military, with one recalling that Anderson said he
15 suffered from post-traumatic stress disorder.3 Finally, one co-worker
testified that while she was giving Anderson a ride home from work
a few weeks before the murder, she asked if Anderson wanted to
move from the back seat of her car to the front seat, and he replied,
“[W]hat do you think I’m going to rape you or something?”
At the hearing on Anderson’s motion for new trial, trial counsel
was asked why he did not try to exclude the co-workers’ testimony
about Anderson bringing guns to work or lying about military
service. (He was not asked why he did not try to exclude the
testimony about Anderson’s comment about rape.) In response,
counsel explained how the co-workers’ testimony served his trial
strategy of trying to gain the jury’s sympathy. Counsel recalled that
Anderson, in a part of his recorded interview that the jury would
see, had talked about being too small in stature to join the police or
the military. Counsel said he played up that idea in his opening
3 The witnesses did not explicitly characterize Anderson’s claims about
military service as untrue, but it was (and is) undisputed that Anderson never served. The State argued in closing that it was obviously untrue that Anderson had ever served in the military, and pointed out that his mother testified that he had never had another job. 16 statement to argue that Anderson’s small stature had prevented
him from achieving his goals and left him frustrated. In counsel’s
view, the challenged testimony from Anderson’s co-workers—that
Anderson lied about military service and displayed guns at work—
fit the same narrative. Counsel testified that he made a “strategic
decision to just let it all in and give the jury the full picture of what
was going on,” because Anderson’s “only real shot at anything” was
to generate sympathy from the jury.
(b) To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was
professionally deficient and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052,
80 LE2d 674) (1984); Washington v. State, 313 Ga. 771, 773 (3) (873
SE2d 132) (2022). “If an appellant fails to meet his or her burden of
proving either prong of the Strickland test, the reviewing court does
not have to examine the other prong.” Taylor v. State, 315 Ga. 630,
647 (5) (b) (884 SE2d 346) (2023) (citation and punctuation omitted).
To prove deficiency, a defendant “must show that his lawyer
17 performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms.” Scott v. State, 317 Ga. 218, 221 (2) (892 SE2d
744) (2023) (citation and punctuation omitted). This is “no easy
showing,” id. (citation and punctuation omitted), because the law
recognizes a “strong presumption that trial counsel’s conduct falls
within the broad range of reasonable professional conduct,” Harper
v. State, 318 Ga. 185, 192 (1) (897 SE2d 818) (2024) (citation and
punctuation omitted). To overcome that presumption, the appellant
must show that “no reasonable lawyer would have done what his
lawyer did, or would have failed to do what his lawyer did not.”
Washington, 313 Ga. at 773 (3) (citation and punctuation omitted).
“In particular, decisions regarding trial tactics and strategy may
form the basis for an ineffectiveness claim only if they were so
patently unreasonable that no competent attorney would have
followed such a course.” Waters v. State, 317 Ga. 822, 829 (3) (b) (896
SE2d 507) (2023) (citation and punctuation omitted).
To show that he was prejudiced by counsel’s deficient
18 performance, a defendant must show that, but for the deficiency,
there was a “reasonable probability” that the result of the trial
would have been different. See Waters, 317 Ga. at 829 (3) (b). “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (citation and punctuation omitted).
With these standards in mind, we review in turn each piece of
testimony that Anderson contends his counsel should have tried to
exclude.
(i) Counsel did not perform deficiently by failing to object to the
co-workers’ testimony about Anderson bringing guns to work and
lying about military service. Counsel testified that his strategy at
trial—indeed, his “only real shot at anything”—was to play on the
jury’s sympathy in the hope that the jury would find that Anderson
acted without malice. That strategy was reasonable under the
circumstances. See Earnest v. State, 262 Ga. 494, 496-497 (5) (422
SE2d 188) (1992) (strategy of trying to invoke the jury’s sympathy
is “within the range of professionally reasonable decisions”). Counsel
pursued his strategy by trying to give the jury “the full picture of
19 what was going on” with Anderson. For counsel, that meant
portraying Anderson as a man whose small stature prevented him
from joining the police or the military, and who may have
compensated for those frustrations by enacting fantasies of military
service around his co-workers. The co-workers’ testimony, especially
layered with Anderson’s own statements to police, helped complete
that “full picture.” So it was reasonable for counsel not to object to
it. See Jones v. State, 300 Ga. 543, 546 (2) (a) (796 SE2d 659) (2017)
(reasonable strategy not to object to evidence that “might be useful
to create sympathy for the [defendants] and convince a jury that
they did not act with malice”).
Because counsel’s decision not to object was part of a
reasonable trial strategy, it fell within the “broad range of
reasonable professional conduct.” See Harper, 318 Ga. at 192 (1);
Waters, 317 Ga. at 829 (3) (b); Jones, 300 Ga. at 546 (2) (a). The fact
that the strategy did not carry the day does not mean it was unsound
or that counsel’s performance was deficient. See Grissom v. State,
296 Ga. 406, 412 (4) (768 SE2d 494) (2015) (counsel’s strategic
20 decisions “must not be judged by hindsight or the ultimate result of
the trial”) (citation and punctuation omitted). So Anderson’s claim
of ineffectiveness on this ground fails.
(ii) We turn next to the co-worker’s testimony about Anderson’s
comment about rape. Counsel was not asked why he did not object
to that testimony, so he never had a chance to explain (as he did
with the other challenged evidence) how it might fit into a trial
strategy. But even if no reasonable lawyer would have failed to
object to this testimony, its admission did not prejudice Anderson.
At trial, it was uncontested that Anderson shot Murr to death, that
he pursued him through the house while continuing to fire until the
gun was empty, and that he had talked about killing Murr for
months beforehand. Against that evidence, Anderson’s only defense
was that he was responding to Murr’s threats and insults. Given all
the jury heard about the brutality of the killing and about
Anderson’s animus toward Murr, there is not a reasonable
probability that the outcome of the trial was affected by testimony
that Anderson once made a comment about rape to a co-worker,
21 however unseemly or offensive it may have been. See Talley v. State,
314 Ga. 153, 162-163 (3) (a) (875 SE2d 789) (2022) (defendant not
prejudiced when counsel did not object to testimony about a threat
defendant had made, because while the threat “might have reflected
negatively on” the defendant, it was “not particularly disparaging of
[his] character” when viewed in context and “given the strength of
the other admissible evidence against him”) (citation and
punctuation omitted); Gibbs v. State, 303 Ga. 681, 682-683 (1) (813
SE2d 393) (2018) (defendant not prejudiced when counsel did not
object to testimony that arguably placed defendant’s character in
issue, given strong evidence of defendant’s guilt). Because Anderson
cannot show he suffered prejudice from this testimony, his claim of
ineffectiveness on this ground fails.
Judgment affirmed. All the Justices concur.
22 Decided May 14, 2024.
Murder. Paulding Superior Court. Before Judge Bucci.
Randall P. Sharp, for appellant.
Matthew W. Rollins, District Attorney, A. Brett Williams,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.
Malcolm, Senior Assistant Attorneys General, Ashleigh D. Headrick,
Assistant Attorney General, for appellee.