307 Ga. 500 FINAL COPY
S19A1215. McGUIRE v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, the appellant, David McGuire, was
convicted of the malice murder of his mother, Elaine McGuire, and
possession of a firearm during the commission of a felony.1 He
1 Elaine McGuire was shot and killed on September 14 or 15, 2016. A
Lamar County grand jury returned an indictment on March 14, 2017, charging the appellant with malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), three counts of possession of a firearm during the commission of a felony (Counts 4, 5, and 6), and possession of a firearm by a convicted felon (Count 7). The State did not present the charge of possession of a firearm by a convicted felon to the jury and requested that Count 7 be dismissed by order of nolle prosequi. Following a May 14-17, 2018 jury trial, the appellant was found guilty on Counts 1 through 6. By judgment entered on May 21, 2018, the trial court sentenced the appellant to life imprisonment without parole for malice murder and five years’ imprisonment for possession of a firearm during the commission of a felony predicated on malice murder (Count 4), to run consecutively to the sentence on Count 1. The May 21 sentencing order indicated that the verdict on felony murder merged with the murder conviction, although the felony murder verdict was actually vacated by operation of law. Stewart v. State, 299 Ga. 622, 627-628 (3) (791 SE2d 61) (2016). The court also originally entered sentences on the other two counts of possession of a firearm during the commission of a felony (Counts 5 and 6), but those counts merged with Count 4. See Atkinson v. State, 301 Ga. 518, 520-521 (2) (801 SE2d 833) (2017). The appellant filed a motion for a new trial on June 12, 2018, which he amended on November 14, 2018. After a December 4, 2018 hearing, the court amended its judgment to reflect that Counts 5 and 6 merged with Count 4. The court denied the motion appeals, challenging the sufficiency of the evidence as to the element
of malice. Specifically, the appellant contends that the evidence of
malice was entirely circumstantial and that the proved facts did not
exclude his reasonable hypothesis that he was provoked into a
sudden, violent, and irresistible passion when the victim shot at him
during a heated argument about his drinking, he wrestled the gun
away from her, and he shot her as the result of the provocation. For
the reasons set forth below, we disagree and affirm the appellant’s
convictions.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. In 2016, the
appellant was living with his mother (“McGuire”), who was trying to
help him address his alcohol abuse and other health issues. After
promising to go to an Alcoholics Anonymous meeting with his cousin
on the evening of September 14, the appellant instead spent the day
drinking heavily. That afternoon, McGuire poured out the
for a new trial on December 17, 2018. The appellant filed a timely notice of appeal, and his appeal was docketed in this Court for the August 2019 term and submitted for decision on the briefs. 2 appellant’s liquor. Kim McGuire, the appellant’s wife, spoke to both
McGuire and the appellant on the phone just after McGuire had
poured out the appellant’s liquor. She testified that McGuire
sounded extremely agitated and that the appellant sounded
irritated. No one saw or spoke to McGuire after that phone call,
despite repeated attempts by McGuire’s daughter, Dana Lowe, and
other family members to contact McGuire.
The next morning, Lowe found her mother (who was right-
handed) lying dead in her bedroom, with a revolver lying on the bed
near her left hand. The only other person present in the house was
the appellant, who was lying on a couch in the living room, highly
intoxicated. Lowe tried to rouse the appellant, and she asked what
had happened to their mother, but he did not respond. Lowe called
911, and officers were dispatched for a possible suicide.
Responding officers found that the house was generally in an
orderly state, not showing signs of a prolonged or violent struggle.
There were numerous empty liquor bottles in the trash and
elsewhere in the house. There were six empty shell casings in the
3 cylinder of the six-chambered revolver that was lying on the bed
beside McGuire’s hand when Lowe found her. When an ambulance
arrived at around 9:30 a.m., McGuire’s body was in a state of rigor
mortis. Six bullets were recovered: two bullets were found in
McGuire’s bedroom; one bullet was found lodged in the wall opposite
the bathroom doorway; and three bullets were recovered from
McGuire’s body during the autopsy. There was an upward-angled
projectile strike on the door jamb in the bathroom. A firearms
examiner testified that with the exception of the bullet found lodged
in the wall, which was too damaged to be matched to a particular
firearm, the bullets had been fired from the revolver. A crime scene
investigator testified at trial that the projectile strike and the bullet
lodged in the wall suggested that at some point a gun was fired
toward the doorway from the area of the bathtub.
In addition to fatal gunshot wounds to McGuire’s head and
chest, the medical examiner who performed McGuire’s autopsy
identified an abrasion on McGuire’s left hand that could have
resulted from an altercation. DNA evidence recovered from the
4 revolver showed that three different people had handled the
revolver. One DNA profile matched the appellant, and the other two
could not be matched to anyone. There were multiple fingerprints
found on the gun. One print was identified as that of the appellant’s
right thumb and was in a position consistent with him grasping the
barrel of the gun while it was pointed toward him. McGuire could
not be excluded as the source of some of the prints.
At trial, Lowe testified that McGuire was direct and plain-
spoken and required others to abide by her rules or leave her home.
In particular, McGuire did not allow drinking or smoking in her
home. According to Lowe, although the appellant was verbally
abusive to others when he was intoxicated, McGuire did not hesitate
to confront him, even when he had been drinking, and she was the
only one who could control him. Lowe testified that the appellant
and McGuire had a good relationship. Lowe testified that she “would
never have any thoughts of him hurting” their mother. The
appellant’s wife testified that the appellant loved McGuire deeply
and would never willingly hurt her if he was sober. The appellant
5 did not testify.
After the close of the evidence, the trial court agreed to give the
appellant’s requested jury instruction on voluntary manslaughter,
over the State’s objection. During closing argument, defense counsel
conceded that the appellant was involved in McGuire’s death and
argued that the jury should find him guilty of voluntary
manslaughter as a lesser offense, and not guilty of murder. Defense
counsel argued that the evidence showed that, when the appellant
caused McGuire’s death, he acted solely as the result of a sudden,
violent, and irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person and
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307 Ga. 500 FINAL COPY
S19A1215. McGUIRE v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, the appellant, David McGuire, was
convicted of the malice murder of his mother, Elaine McGuire, and
possession of a firearm during the commission of a felony.1 He
1 Elaine McGuire was shot and killed on September 14 or 15, 2016. A
Lamar County grand jury returned an indictment on March 14, 2017, charging the appellant with malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), three counts of possession of a firearm during the commission of a felony (Counts 4, 5, and 6), and possession of a firearm by a convicted felon (Count 7). The State did not present the charge of possession of a firearm by a convicted felon to the jury and requested that Count 7 be dismissed by order of nolle prosequi. Following a May 14-17, 2018 jury trial, the appellant was found guilty on Counts 1 through 6. By judgment entered on May 21, 2018, the trial court sentenced the appellant to life imprisonment without parole for malice murder and five years’ imprisonment for possession of a firearm during the commission of a felony predicated on malice murder (Count 4), to run consecutively to the sentence on Count 1. The May 21 sentencing order indicated that the verdict on felony murder merged with the murder conviction, although the felony murder verdict was actually vacated by operation of law. Stewart v. State, 299 Ga. 622, 627-628 (3) (791 SE2d 61) (2016). The court also originally entered sentences on the other two counts of possession of a firearm during the commission of a felony (Counts 5 and 6), but those counts merged with Count 4. See Atkinson v. State, 301 Ga. 518, 520-521 (2) (801 SE2d 833) (2017). The appellant filed a motion for a new trial on June 12, 2018, which he amended on November 14, 2018. After a December 4, 2018 hearing, the court amended its judgment to reflect that Counts 5 and 6 merged with Count 4. The court denied the motion appeals, challenging the sufficiency of the evidence as to the element
of malice. Specifically, the appellant contends that the evidence of
malice was entirely circumstantial and that the proved facts did not
exclude his reasonable hypothesis that he was provoked into a
sudden, violent, and irresistible passion when the victim shot at him
during a heated argument about his drinking, he wrestled the gun
away from her, and he shot her as the result of the provocation. For
the reasons set forth below, we disagree and affirm the appellant’s
convictions.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. In 2016, the
appellant was living with his mother (“McGuire”), who was trying to
help him address his alcohol abuse and other health issues. After
promising to go to an Alcoholics Anonymous meeting with his cousin
on the evening of September 14, the appellant instead spent the day
drinking heavily. That afternoon, McGuire poured out the
for a new trial on December 17, 2018. The appellant filed a timely notice of appeal, and his appeal was docketed in this Court for the August 2019 term and submitted for decision on the briefs. 2 appellant’s liquor. Kim McGuire, the appellant’s wife, spoke to both
McGuire and the appellant on the phone just after McGuire had
poured out the appellant’s liquor. She testified that McGuire
sounded extremely agitated and that the appellant sounded
irritated. No one saw or spoke to McGuire after that phone call,
despite repeated attempts by McGuire’s daughter, Dana Lowe, and
other family members to contact McGuire.
The next morning, Lowe found her mother (who was right-
handed) lying dead in her bedroom, with a revolver lying on the bed
near her left hand. The only other person present in the house was
the appellant, who was lying on a couch in the living room, highly
intoxicated. Lowe tried to rouse the appellant, and she asked what
had happened to their mother, but he did not respond. Lowe called
911, and officers were dispatched for a possible suicide.
Responding officers found that the house was generally in an
orderly state, not showing signs of a prolonged or violent struggle.
There were numerous empty liquor bottles in the trash and
elsewhere in the house. There were six empty shell casings in the
3 cylinder of the six-chambered revolver that was lying on the bed
beside McGuire’s hand when Lowe found her. When an ambulance
arrived at around 9:30 a.m., McGuire’s body was in a state of rigor
mortis. Six bullets were recovered: two bullets were found in
McGuire’s bedroom; one bullet was found lodged in the wall opposite
the bathroom doorway; and three bullets were recovered from
McGuire’s body during the autopsy. There was an upward-angled
projectile strike on the door jamb in the bathroom. A firearms
examiner testified that with the exception of the bullet found lodged
in the wall, which was too damaged to be matched to a particular
firearm, the bullets had been fired from the revolver. A crime scene
investigator testified at trial that the projectile strike and the bullet
lodged in the wall suggested that at some point a gun was fired
toward the doorway from the area of the bathtub.
In addition to fatal gunshot wounds to McGuire’s head and
chest, the medical examiner who performed McGuire’s autopsy
identified an abrasion on McGuire’s left hand that could have
resulted from an altercation. DNA evidence recovered from the
4 revolver showed that three different people had handled the
revolver. One DNA profile matched the appellant, and the other two
could not be matched to anyone. There were multiple fingerprints
found on the gun. One print was identified as that of the appellant’s
right thumb and was in a position consistent with him grasping the
barrel of the gun while it was pointed toward him. McGuire could
not be excluded as the source of some of the prints.
At trial, Lowe testified that McGuire was direct and plain-
spoken and required others to abide by her rules or leave her home.
In particular, McGuire did not allow drinking or smoking in her
home. According to Lowe, although the appellant was verbally
abusive to others when he was intoxicated, McGuire did not hesitate
to confront him, even when he had been drinking, and she was the
only one who could control him. Lowe testified that the appellant
and McGuire had a good relationship. Lowe testified that she “would
never have any thoughts of him hurting” their mother. The
appellant’s wife testified that the appellant loved McGuire deeply
and would never willingly hurt her if he was sober. The appellant
5 did not testify.
After the close of the evidence, the trial court agreed to give the
appellant’s requested jury instruction on voluntary manslaughter,
over the State’s objection. During closing argument, defense counsel
conceded that the appellant was involved in McGuire’s death and
argued that the jury should find him guilty of voluntary
manslaughter as a lesser offense, and not guilty of murder. Defense
counsel argued that the evidence showed that, when the appellant
caused McGuire’s death, he acted solely as the result of a sudden,
violent, and irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person and
immediately after the provocation, as the offense of voluntary
manslaughter is defined in the Criminal Code.2 Defense counsel
2 OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he 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; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all
6 speculated that early in the morning on September 15, McGuire
found that the appellant had obtained more liquor after she had
poured out his liquor the day before and that he was smoking and
drinking in her house. She again poured out his alcohol, and he
reacted with great rage. Fearing for her safety, defense counsel
theorized, McGuire grabbed the revolver and ran into the bathroom.
The appellant immediately followed, and McGuire, who was sitting
on the bathtub, took one shot at him. Defense counsel proposed that
the appellant was further enraged by the shot McGuire fired and
that he grabbed the revolver from her hand, chased her a short
distance into her bedroom, and shot her, emptying the gun.
On appeal, the appellant contends that, in order to convict him
of murder based solely upon circumstantial evidence, the proved
facts had to exclude his reasonable hypothesis that he killed
McGuire as the result of a sudden, violent, and irresistible passion
resulting from serious provocation, specifically, McGuire’s shooting
cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. 7 at him. The appellant argues that the State failed to present any
evidence to exclude his reasonable hypothesis that this was a clear
case of voluntary manslaughter, not murder.
The appellant relies on OCGA § 24-14-6, which provides: “To
warrant a conviction on circumstantial evidence, the proved facts
shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of
the accused.” Of course, not every hypothesis is reasonable. The
evidence, therefore,
does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question principally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of the accused’s guilt, this Court will not disturb that finding unless it is insupportable as a matter of law.
Cochran v. State, 305 Ga. 827, 829 (1) (828 SE2d 338) (2019)
(citation and punctuation omitted).
As noted above, the appellant contends that the evidence was
not sufficient to authorize the jury to return a guilty verdict on the
8 charge of malice murder and instead authorized the jury only to find
him guilty of voluntary manslaughter. OCGA § 16-5-1 (a) provides:
“A person commits the offense of murder when he unlawfully and
with malice aforethought, either express or implied, causes the
death of another human being.”
Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
OCGA § 16-5-1 (b). “It is for the factfinder to determine, from all the
facts and circumstances, whether the killing was intentional and
malicious.” Thomas v. State, 274 Ga. 479, 481 (2) (554 SE2d 470)
(2001). “[T]here is no requirement of premeditation or a
preconceived intention to kill; malice aforethought can be formed
instantly.” Lamb v. State, 273 Ga. 729, 732 (3) (546 SE2d 465) (2001)
(citation and punctuation omitted). It is for the factfinder to
determine whether a provocation, if any, is such a serious
provocation as would be sufficient to excite a sudden, violent, and
9 irresistible passion in a reasonable person as to reduce the offense
from murder to voluntary manslaughter. Thomas, 274 Ga. at 481
(2); Anderson v. State, 248 Ga. 682, 683 (3) (285 SE2d 533) (1982).
And “the existence of provocation does not preclude the existence of
malice.” Anderson, 248 Ga. at 683 (3).
In this case, the jury was instructed on voluntary
manslaughter in addition to malice murder. Viewed in the light
most favorable to the verdicts, the evidence was sufficient to
authorize a rational jury to reject the appellant’s hypothetical
version of events and to find the appellant guilty beyond a
reasonable doubt of malice murder rather than voluntary
manslaughter. As the appellate court, we are required therefore to
affirm the jury’s verdict unless the jury’s finding — that the
appellant’s hypothesis either was not a reasonable hypothesis or
was excluded by the evidence — is insupportable as a matter of law.
We conclude that the malice murder verdict is not reversible under
that standard. See Stork v. State, 303 Ga. 21, 22-23 (1) (b) (810 SE2d
81) (2018); Mathis v. State, 279 Ga. 100, 101-102 (1) (610 SE2d 62)
10 (2005); Somchith v. State, 272 Ga. 261, 262 (1) (527 SE2d 546)
(2000). Accordingly, we affirm the appellant’s malice murder
conviction.
Judgment affirmed. All the Justices concur.
DECIDED DECEMBER 23, 2019. Murder. Lamar Superior Court. Before Judge Fears. Allen R. Knox, Douglas P. Smith, for appellant.
11 Jonathan L. Adams, District Attorney, Cynthia T. Adams, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.