311 Ga. 800 FINAL COPY
S21A0025. FLOOD v. THE STATE.
LAGRUA, Justice.
Appellant Annette Collins Flood was convicted of felony
murder and possession of a knife during the commission of a felony
in connection with the stabbing death of Bobby Burns, her longtime
boyfriend. Appellant contends that the evidence was insufficient to
support her conviction for felony murder. She also raises three
separate enumerations of error regarding the jury instructions
provided at her trial and contends that these instructional errors
combined to prejudice her. Finally, Appellant contends that the
State improperly placed her character at issue during closing
argument. Appellant seeks a new trial, but for the reasons stated
below, we affirm.1
1 The crimes occurred on April 21, 2016. On July 27, 2017, a Chatham County grand jury indicted Appellant for malice murder, felony murder, 1. (a) Construed in the light most favorable to the jury’s
verdicts, the evidence presented at trial showed that Appellant and
Burns had been seeing each other on and off for about 18 years. At
the time of the crimes, the two had been living together for a little
over a year in a boarding house where the tenants rented individual
bedrooms and had shared access to the bathroom and common
areas. Burns and Appellant shared a bedroom on the second level
of the boarding house that contained a mini-refrigerator and other
kitchen items, including utensils and kitchen knives.
Appellant had a history of being controlling in the relationship
and had physically struck Burns on more than one occasion. In the
months before the crimes, Burns and Appellant had been getting
aggravated assault, and possession of a knife during the commission of a felony. At a trial in July 2018, the jury found Appellant guilty of all charges except malice murder. The trial court then sentenced Appellant to life imprisonment for felony murder and five consecutive years for the knife possession charge. The aggravated assault charge merged for sentencing purposes. Appellant filed a motion for new trial on August 16, 2018, which she amended on May 30, 2019, and August 13, 2019. Following a hearing on August 13, 2019, the trial court denied the amended motion for new trial on June 9, 2020. Appellant filed a timely notice of appeal on June 18, 2020, and the case was docketed to this Court’s term beginning in December 2020 and submitted for a decision on the briefs. 2 into loud verbal arguments in their bedroom that were overheard by
other tenants. On January 26, 2016, three months prior to Burns’s
stabbing, Burns allegedly prevented Appellant from leaving the
bedroom by blocking the door. Appellant called the police, who
concluded that the incident was a mere verbal altercation. In her
statement to police after the January incident, Appellant stated that
Burns had never put his hands on her. Other witnesses testified
that the two often fought about Burns’s drug and alcohol use and
Appellant’s infidelity. According to Appellant, animosity in the
relationship had escalated to the point that Appellant wanted to
leave Burns.
On the day of the stabbing, Appellant was with her infant
grandchild, playing cards at the boarding house with another
tenant, Terry Moore. Burns returned from work around 5:00 p.m.,
and he, Appellant, and Appellant’s grandchild went to their
bedroom. Burns left the bedroom shortly thereafter. At some point,
Appellant went to bed.
Around 2:00 or 3:00 a.m., Burns returned to the house. He was
3 drunk. Burns asked if Appellant was upset with him. According to
Appellant, before she had a chance to respond, Burns pushed her
head back, pushed her a second time, and came toward her with a
raised hand, at which point Appellant reached behind her, grabbed
a boning knife off the table, and stabbed Burns. Appellant then left
the bedroom with her grandchild but did not call 911 or request help.
According to Moore, she often overheard Appellant and Burns
arguing, and on the night of the stabbing, Moore awoke to a loud
argument between the couple, which eventually quieted down until
3:00 or 4:00 a.m. when Appellant came to speak with her. Appellant
told Moore that she was leaving the house with her grandchild.
Appellant made no mention of Burns or anything about their
altercation. Moore went back to sleep, went to work the next day,
and upon returning home, encountered Appellant’s daughter (and
the mother of Appellant’s grandchild), Khadijah Flood (hereinafter
“Khadijah”), near Appellant’s bedroom, hysterical and crying.
Appellant returned the grandchild to Khadijah early in the
morning after leaving the boarding house. Later in the day,
4 Khadijah called Appellant about retrieving a stroller and some
diapers left at the boarding house. When Khadijah arrived at the
boarding house around 4:00 p.m., a tenant let her in, and she
proceeded to Appellant’s bedroom. Khadijah knocked, but there was
no answer. She opened the unlocked door and saw Burns’s body on
the bed. Khadijah ran outside and called her mother. Appellant
sounded normal on the phone until Khadijah told her about Burns,
at which point Appellant became hysterical.
Burns’s autopsy revealed a three-inch stab wound in the upper
left chest and shoulder area. The medical examiner testified that
Burns would have bled profusely from this stab wound. The
examiner also found alcohol and cocaine in Burns’s system and
determined that the chest wound was the cause of Burns’s death.
Appellant testified at trial. Her testimony largely centered
around her claim of self-defense.
(b) Appellant contends that the evidence was insufficient to
support her conviction for felony murder and instead supports a
verdict of not guilty based on a theory of self-defense and that the
5 evidence is wholly consistent with her testimony that she lacked
intent to kill or commit violent injury to Burns but was merely
acting in self-defense. Appellant asserts that she grabbed an object
to defend herself from Burns’s attack and then left the room not
knowing that he was seriously injured. Appellant further asserts
that the State did not produce evidence contradicting this claim. At
most, Appellant argues, the evidence supported a finding of
voluntary manslaughter.2 See OCGA § 16-5-2 (a).
When evaluating the sufficiency of evidence as a matter of
constitutional due process, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis
omitted). Reconciling inconsistencies in testimony and determining
witness credibility are left to the province of the jury. See Williams
2 We note that the jury was instructed on voluntary manslaughter, but
we do not address if the evidence required that instruction. 6 v. State, 302 Ga. 474, 478 (I) (807 SE2d 350) (2017). Here, the record
is replete with evidence that would authorize a jury to find
Appellant guilty of felony murder. Appellant and Burns were in a
turbulent relationship for approximately 18 years, during which
they argued about substance abuse and infidelity. Burns was
described as quiet, laid-back, and rarely violent toward Appellant,
except for Appellant’s account of one incident in January 2016.
Appellant was described as the aggressor in the relationship and as
being controlling of Burns. Furthermore, Appellant admitted to
stabbing Burns with a boning knife, and when detectives
interviewed Appellant two days after the incident, she had no marks
or injuries consistent with defending herself in a fight. She stated
that she did not see much blood after stabbing Burns, but the
medical examiner’s testimony was that Burns would have been
bleeding profusely from the type of stab wound that Appellant
inflicted. In addition, after the stabbing, Appellant neither called
911 nor sought any assistance; she only told another tenant that she
was leaving the house, without mentioning she had stabbed Burns.
7 Finally, during Appellant’s phone call with her daughter, she made
no mention of the previous night’s stabbing.
Moreover, questions as to the existence of a justification
defense are for a jury to decide, and given the evidence discussed
above, the jury was free to decide whether Appellant acted in self-
defense, and whether the alleged self-defense was warranted. See
Dent v. State, 303 Ga. 110, 113 (1) (810 SE2d 527) (2018) (“It is a
jury question as to whether [a showing of self-defense] has been
made, and therefore, whether a defendant’s claim of self-defense
should be accepted.”). In light of the evidence presented at trial, we
conclude that the jury was authorized to reject Appellant’s self-
defense claim and find her guilty of felony murder. See Robinson v.
State, 283 Ga. 229, 230 (1) (657 SE2d 822) (2008) (“[T]he jury was
free to reject the claim that [the appellant] stabbed the victim in self-
defense” and find the appellant guilty of felony murder. (citation and
punctuation omitted)). Accordingly, this contention lacks merit.
2. Appellant raises three separate arguments regarding the
jury instructions provided at trial: first, that the sequence of the jury
8 charges was improper; second, that the trial court incorrectly
instructed the jury when the jury sought clarification of the jury
charges; and third, that the trial court failed to give pattern charges
on the legal relationship between a felony and felony murder.
Appellant also contends that the cumulative prejudice from these
errors requires a new trial.
Appellant failed to make a timely objection to each alleged
instructional error; therefore, our review of the jury charges is
limited to a plain error analysis. See Solomon v. State, 293 Ga. 605,
606-607 (2) (748 SE2d 865) (2013) (citing OCGA § 17-8-58 (b)). To
establish plain error,
[f]irst, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial
9 proceedings.
Leeks v. State, 303 Ga. 104, 108 (3) (810 SE2d 536) (2018) (citation
and punctuation omitted). We need not analyze the other elements
of the plain error test if the appellant fails to establish any one of
them. See State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) (818
SE2d 552) (2018).
(a) First, Appellant alleges that the trial court incorrectly
instructed jurors regarding the order in which they should consider
the murder and voluntary manslaughter offenses in violation of
Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992), which
holds that, where the evidence would authorize a charge on
voluntary manslaughter, a sequential charge is improper if it
requires the jury to consider voluntary manslaughter only if it has
considered and found the defendant not guilty of malice murder and
felony murder. “[T]he jury should be admonished that if it finds
provocation and passion with respect to the act which caused the
killing, it could not find felony murder, but would be authorized to
find voluntary manslaughter.” Id. at 867 (2) n.3.
10 During the jury instructions, the trial court defined malice
murder, felony murder, and aggravated assault. Thereafter, the
trial court gave the following instruction:
[A]fter considering all the evidence, before you would be authorized to return a verdict of guilty of malice or felony murder, you must first determine whether mitigating circumstances, if any, would cause the offense to be reduced to voluntary manslaughter.
The court then went on to instruct the jury on the definitions of
voluntary manslaughter and provocation.
After about ten minutes of deliberations, the jury sent a note
to the trial judge that read, “The jury requests a copy of a description
of the charges.” The jury returned to the courtroom, and the jurors
clarified that one member requested “the definition of the law of the
charges.” In response, the trial court orally reinstructed the jury in
open court on the definitions of malice murder, felony murder,
aggravated assault, and the knife possession charge. The court then
orally gave the mitigating-circumstances instruction quoted above,
followed by the voluntary manslaughter instruction.
The trial court asked if the oral recharge was helpful, and the
11 foreperson requested that the court send a written copy of the
definitions of the charged crimes for the jurors to view. The court
asked if there were any objections to providing these written
charges, and defense counsel requested that the court send the
entire set of jury instructions with the jury. The jury then returned
to deliberations with a paper copy of the complete jury instructions,
including the definitions of the crimes with which Appellant was
charged and the mitigating-circumstances instruction.
Appellant argues that the trial court’s instructions created
ambiguity about the order in which the jury should have considered
the various homicide charges. Citing Ortiz v. State, 291 Ga. 3, 5 (2)
(727 SE2d 103) (2012), Appellant argues that the trial court should
have first instructed the jury as to the elements of malice murder,
felony murder, aggravated assault, and voluntary manslaughter,
and then instructed the jury to determine whether mitigating
circumstances would reduce the crime to voluntary manslaughter.
Appellant contends that the mitigating-circumstances instruction
was given prior to the charge on the elements of voluntary
12 manslaughter, misleading the jury into thinking that it must first
acquit the Appellant of either form of murder before it could consider
voluntary manslaughter.
However, the trial court instructed the jury to consider
mitigation first, and the jury verdict form listed the homicide
charges in the proper order. With respect to the homicide counts,
the prepared verdict form read as follows:
JURY VERDICT
COUNTS ONE, TWO AND THREE: HOMICIDE
(Select one Verdict Only)
___ We the jury find the Defendant NOT GUILTY
or
___ We the jury find the Defendant GUILTY of the lesser included offense of Voluntary Manslaughter
___ We the jury find the Defendant GUILTY of Malice Murder
___ We the jury find the Defendant GUILTY of Felony
13 Murder
At the end of the jury’s deliberations, the foreperson checked only
the fourth and final option, indicating that the jury found Appellant
guilty of felony murder.
We conclude that the verdict form — together with the jury
charge and recharge — allowed for the jury’s proper consideration
of the murder charges. “A preprinted verdict form is treated as part
of the jury instructions which are read and considered as a whole in
determining whether there is [instructional] error.” Rowland v.
State, 306 Ga. 59, 68 (6) (829 SE2d 81) (2019) (citations and
punctuation omitted). There is no exact formula that trial courts
must follow, “so long as the charge as a whole ensures that the jury
will consider whether evidence of provocation and passion might
authorize a verdict of voluntary manslaughter.” Elvie v. State, 289
Ga. 779, 781 (2) (716 SE2d 170) (2011) (citation and punctuation
omitted). Taken together, the jury instructions did not violate our
holding in Edge because the jury was properly admonished to
consider mitigating evidence in both oral and written instructions.
14 These instructions were not erroneous. Because there is no error,
much less plain error, this claim fails.
(b) Next, Appellant argues that the trial court gave an
inadequate explanation when the jury asked about the different
forms of homicide. We see no error. During deliberations, the jury
sent a note to the trial court stating: “We have one juror who believes
the defendant is guilty of malice murder. The other eleven jurors
are willing to settle on a lesser charge of felony murder or
involuntary [sic] manslaughter.” (Emphasis in original.) The trial
court addressed this concern through the following colloquy in open
court:
COURT: I want to emphasize to you, as you know, once again, whatever your decision is, it has to be unanimous. If there is to be a decision, all twelve of you must freely and voluntarily agree to it. But felony murder and malice murder are both murder. Felony murder is not a lesser offense than malice murder. As you’ll recall, they were written on the board and they were written at the same level.[3] They are murder. The lesser included offense is voluntary manslaughter as that has been defined to you. Does that help any?
3 The court seems to be referring to statements made during closing argument, where an attorney used a board to demonstrate the relationship between the crimes. 15 FOREPERSON: Yes, sir.
Appellant did not object to the trial court’s statement.
Appellant now argues that this instruction was unclear and
incorrect because the court failed to explain which offenses the jury
should consider and how they should be considered, and failed to
distinguish between the required intent for malice and felony
murder. We disagree.
“A trial court has a duty to recharge the jury on issues for
which the jury requests a recharge.” Barnes v. State, 305 Ga. 18, 23
(3) (823 SE2d 302) (2019) (quoting Sharpe v. State, 288 Ga. 565, 569
(6) (707 SE2d 338) (2011)). Here, the jury’s note indicated confusion
about the relationship between malice murder, felony murder, and
manslaughter. This confusion was evident by the fact that the jury’s
note indicated that it was considering involuntary manslaughter,
which was not one of the indicted charges, and that the jury called
felony murder a “lesser charge” than malice murder. In response,
the trial court clarified that felony murder and malice murder were
both forms of murder, and that felony murder is not a lesser offense
16 than malice murder. The court further stated that voluntary
manslaughter is a lesser included offense. This was a correct
statement of law. Furthermore, the foreperson indicated that the
trial court’s recharge assisted the jury in its understanding. Defense
counsel raised no objection to this course of action. Given the
demonstrated confusion by the jury, the trial court’s response was
not an abuse of discretion. See Dozier v. State, 306 Ga. 29, 32 (3)
(829 SE2d 131) (2019) (no abuse of discretion where the trial court
discerned that the jury was confused about a legal theory, the trial
court correctly recharged the jury, and there was nothing indicating
that the jury had an erroneous impression of the law after the
recharge).
“As a general matter . . . , where [a request for a recharge has
not] been made, the need, breadth, and formation of additional jury
instructions are left to the sound discretion of the trial court.”
Barnes, 305 Ga. at 23 (3) (citation and punctuation omitted). The
trial court correctly noted that the jury was giving the court
“information on how [it stood] with regard to certain charges,” and
17 the court offered guidance that was a correct statement of the law in
response. Therefore, we conclude that the trial court did not abuse
its discretion in instructing the jury. We therefore discern no plain
error, and this enumeration fails.
(c) Next, Appellant argues that the trial court failed to give a
jury instruction requested by both the State and Appellant. We
identify no plain error.
Both parties made written requests to the court to include
Georgia Suggested Pattern Jury Instructions: Criminal Cases, Vol.
II: § 2.10.30, which is the pattern jury instruction outlining the
relationship between a felony murder and the underlying felony.4
4 The pertinent portion of this instruction states:
The homicide must have been done in carrying out the [felony] and not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or committed. (There must be such a legal relationship between the homicide and the felony so as to cause you to find that the homicide occurred before the felony was at an end or before any attempt to avoid conviction or arrest for the felony.) The felony must have a legal relationship to the homicide, be at least concurrent with it in part, and be a part of it in an actual and material sense. A homicide is committed in the carrying out of a felony when it is committed by the accused while engaged in the performance of any act required
18 During its initial oral charge to the jury, the trial court gave only
the definition of felony murder as laid out in Georgia Suggested
Pattern Jury Instructions, Vol. II: Criminal Cases § 2.10.20, Felony
Murder; Defined.5 It did not give Pattern Jury Instruction § 2.10.30
orally in either the initial oral charge or the oral recharge, but later,
upon request by the jury, sent a written copy of this instruction with
the jury into deliberations, along with all of the other jury
instructions in the case.
Appellant contends that both § 2.10.20 and § 2.10.30 must be
provided to illustrate the relationship between the death and the
underlying felony. See Ware v. State, 305 Ga. 457, 458-459 (2) (826
SE2d 56) (2019). Further, Appellant argues that the omitted jury
instruction harmed her because “the jury cannot be presumed to
have utilized the written charge to correct the erroneous oral charge
for the full execution of the felony.
5 This instruction states: “A person (also) commits the crime of murder
when, in the commission of a felony, that person causes the death of another human being (with or without malice). Under the laws of Georgia (name offense) is a felony and is defined as follows: . . .” 19 given directly by the judge, with the written charge given as a
supplement.” Instead, Appellant argues, “the jury should have been
given the full definition of felony murder to ensure there was no
confusion on the issue of its applicability to the facts in the case at
bar.”
Pretermitting any error in the omission of the underlying
felony instruction in the oral charges, we conclude that the omission
of the jury instruction was harmless. Here, the instruction that was
omitted from the oral charge — but provided to the jury in written
form — was about the relationship between Burns’s death and the
predicate felony. Given that the predicate felony was aggravated
assault by stabbing, and the stabbing indisputably caused Burns’s
death, it is difficult to see how including the underlying felony
instruction during the oral charges would have likely caused a
different outcome in Appellant’s trial. Therefore, Appellant has
failed to meet her burden of proving plain error, and this
enumeration fails.
(d) Appellant argues that these three alleged errors
20 cumulatively prejudiced her and that she is entitled to a new trial.
“To establish cumulative error[, Appellant] must show that (1) at
least two errors were committed in the course of the trial; [and] (2)
considered together along with the entire record, the multiple errors
so infected the jury’s deliberation that they denied [Appellant] a
fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d
808) (2020) (citation and punctuation omitted). However, when
reviewing a claim of cumulative prejudice, “we evaluate only the
effects of matters determined to be error, not the cumulative effect
of non-errors.” Scott v. State, 309 Ga. 764, 771 (3) (d) (848 SE2d 448)
(2020) (citation and punctuation omitted). Even assuming —
without deciding — that Lane applies to instructional errors,
Appellant has failed to show more than one error with respect to the
jury charges that would provide this Court with a basis for
evaluating cumulative effect. This argument fails.
3. Finally, Appellant asserts that the trial court improperly
admitted character evidence when the prosecutor stated during
closing arguments that Appellant used drugs, thereby putting
21 Appellant’s character at issue. For the reasons explained below, we
conclude that the trial court committed no error, and even if the trial
court had committed error by allowing the State to raise the
inference that Appellant was a drug user, any such error was
harmless.
During closing argument, the following discussion occurred in
front of the jury:
PROSECUTOR: The Defense, during the course of the evidence yesterday and during closing today, has tried to create a narrative for you that’s just not true. What they want you to believe is that this woman is a woman who has been battered and beaten for years and that she finally just had to defend herself or snapped that that’s what was going on here. That Bobby Burns was a horrible mean man who was abusive to her. And the evidence just — it doesn’t support that. It just doesn’t. The truth is both of these people drank. Both of them used drugs. DEFENSE: Judge, there’s no evidence of that. COURT: Sustained. Jury, disregard. PROSECUTOR: Your Honor, may I respond? COURT: You can respond. PROSECUTOR: The — the defendant, in her own statement to the police officer said that she drank, too. And there has been evidence from her and her daughter about her own drug use. COURT: You are correct, in a past tense. PROSECUTOR: Actually, her daughter, in her interview with the detective, said she was concerned about her
22 mother’s own current drug use. DEFENSE: Judge, that did not come out before the jury. PROSECUTOR: And I impeached her with that. COURT: I agree. Move on. PROSECUTOR: May I talk about the drinking that she admitted that in her interview? COURT: To the extent that she admitted it, yes. PROSECUTOR: Thank you. You heard her, in her interview, talk about the fact that she drank, too. So this is not Bobby as some horrible drinking, drug-using, abusive person. Substance abuse was something that went on with both of them.
OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
Prosecutors generally have wide latitude in remarks made during
closing statements, and the trial court determines these boundaries.
See Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012). And
within these boundaries, a prosecutor may argue reasonable
inferences from the evidence, including any that address the
credibility of witnesses. See id. During Khadijah’s testimony earlier
23 in the trial, the prosecutor asked, “Did you know your mother used
drugs?” Khadijah responded, “When I was a child, yes.” Thus,
Appellant’s past drug use had already been brought up as evidence.
Furthermore, as soon as the prosecutor said in her closing
argument that Appellant used drugs, defense counsel objected. The
trial court immediately intervened and instructed the jury to
disregard the prosecutor’s statement, and the defendant raised no
further objection to any implication that Appellant used drugs.
Moreover, any error in instructing the jury to disregard the
comment was harmless, given that evidence of Appellant’s past drug
use was elicited without objection at trial and considering the
substantial evidence of Appellant’s guilt. Accordingly, this
enumeration of error fails.
Judgment affirmed. All the Justices concur.
24 Decided June 21, 2021.
Murder. Chatham Superior Court. Before Judge John R.
Turner, Senior Judge.
David T. Lock, for appellant.
Meg E. Heap, District Attorney, Jennifer L. Parker,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Mark S. Lindemann,
Assistant Attorney General, for appellee.