NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: December 20, 2024
S24A0894. WILLIAMS v. THE STATE.
MCMILLIAN, Justice.
In October 2018, a jury found Jasmine Williams guilty of
malice murder in connection with the shooting death of Gregory
Swinson. 1 On appeal, Williams argues that (1) the trial judge should
have recused himself for his conduct during the trial; (2) the trial
court erred in failing to charge the jury on justification, accident,
and voluntary manslaughter; and (3) her trial counsel rendered
1 Swinson was shot on or about September 16, 2017, and succumbed to
his injuries approximately four days later. On November 13, 2017, a Coffee County grand jury indicted Williams for felony murder (Count 1) and malice murder (Count 2). At a jury trial in October 2018, the jury found Williams guilty on both counts. The trial court sentenced Williams to serve life in prison without the possibility of parole on Count 2; Count 1 was vacated by operation of law. Williams timely filed a motion for new trial, which was amended through new counsel on August 31, 2023, and September 18, 2023. Following a hearing, the trial court denied the motion for new trial, as amended, on September 27, 2023. Williams timely appealed, and her case was docketed to the August 2024 term of this Court and submitted for a decision on the briefs. constitutionally ineffective assistance by withdrawing his request to
charge on defense of habitation. For the following reasons, we
affirm.
The evidence presented at trial showed that Williams and
Swinson began a romantic relationship around April 2017. For a
short period of time, Swinson lived with Williams in her home in
Coffee County before moving into his own apartment. Williams’s
roommates, brothers Chad and Dustin Kitchens, continued living in
her home. On the evening of September 15, 2017, Williams and
Swinson went to Swinson’s grandmother’s home where they hung
out with various relatives for a couple of hours. Around 9:30 p.m.,
Williams and Swinson went to Williams’s grandparents’ home,
where they drank alcohol, played cards, and watched football until
about midnight. Swinson then returned to his grandmother’s house
and spoke with his grandmother and uncle.
Swinson’s uncle testified that when Swinson came inside, he
“was crying and screaming at the top of his voice about . . . 2 [Williams].” Swinson had scratches on his back and his chest and a
“busted” lip. Swinson’s grandmother testified that he had so many
scratches on his body that “[h]e looked like a cat had been over him.”
Swinson told his uncle that Williams had scratched him and that he
had to “g[e]t her off of him” by pushing her. Later, Swinson’s
grandmother agreed to drive Swinson to Williams’s house to pick up
a car that Williams and Swinson’s grandmother had discussed
because, according to Swinson, Williams had told him to come pick
up the car. Swinson’s grandmother drove him to Williams’s house
and dropped him off.
Chad testified that at roughly 3:00 a.m., Swinson ran into his
bedroom, waking him up, and told him that he wanted him to “be a
witness to whatever happens.” Chad told Swinson, “[Y]’all don’t
start this tonight,” but Swinson insisted on showing Chad his back,
which was covered with scratches. Chad then looked through his
bedroom door into the hallway and saw Williams walking toward
them, holding a gun in her hand. Swinson said, “[S]he’s got a gun.” 3 Chad rubbed his eyes, still groggy from just waking up, and heard
Williams say, “[W]ell, why don’t you get the f**k out, Greg,” followed
by a gunshot. When he opened his eyes, he saw Swinson fall to the
ground in the bedroom and told Williams, who had entered the
bedroom, to call 911. As Chad waited for law enforcement officers to
arrive, he did not see anything out of place in the house other than
Swinson’s cell phone on the floor near the back door.
A recording of Williams’s 911 call was played at trial. During
that call, Williams told the 911 operator, “I shot him in the head. . .
. We were together in a relationship, and we broke up, and I got mad,
and I didn’t realize that I had the trigger pulled, and I hit him in the
head with the gun, and it went off, and it shot him in the head.”
Later, one of the responding law enforcement officers heard
Williams talking on her cell phone, via speaker phone, with someone
she referred to as “mama” and heard the person on the other line
tell Williams: “[unintelligible] it was self-defense . . . he was on you.
You tell them he was on you.” Swinson was transported to a local 4 hospital, where he died from his injuries several days later.
Officers were able to locate the firearm Williams used to shoot
Swinson in a linen closet in the hallway. Williams told one officer
that she hit Swinson in the head with the gun and “it went off.” She
told another officer that she and Swinson were breaking up and that
he struck her in the face, so “she grabbed a gun” and “struck him in
the head,” and “the gun went off.” She also told another officer that
she had been “arguing over her relationship” with Swinson since
7:30 that evening and that “she went and got her gun and she was
going to hit . . . him with it and it went off.” Crime scene photographs
taken of Williams’s living room showed that no furniture or other
items appeared to have been knocked over or disturbed.
While at the police department, Williams and her mother
requested that officers take photographs of injuries on Williams’s
body. Williams stated, however, that they were “old injuries . . . from
being sexual.” The next day, Williams again asked officers to take
photographs of new injuries that had emerged – two bruises on her 5 legs and a small injury on her finger.
A firearms examiner with the Georgia Bureau of Investigation
testified that she evaluated the gun used by Williams, a Smith &
Wesson .357 Magnum revolver, and determined that the firearm
worked correctly and that the revolver’s two types of safeties were
functional, meaning that the weapon “cannot go off accidentally”
because the safeties would “physically block it.” For the gun to fire,
the shooter had to pull the trigger “all the way to the rear back.” The
medical examiner who performed the autopsy testified that Swinson
had a wound on his lower lip and abrasions “in various stages of
healing” on his face, neck, chest, back, and both arms. The abrasions
were consistent with scratches. The medical examiner concluded
that Swinson died from a gunshot wound to his head. Swinson was
shot at an intermediate range, at most two or three feet, and did not
suffer a “contact gunshot wound” where the “muzzle of the gun is in
contact with the skin of the victim.” The bullet entered the right side
of his head and exited through the front of his scalp. 6 The State also presented evidence of Williams’s prior use of
firearms to threaten men she had dated. Samual Holland,
Williams’s former fiancé, testified that one day around April 2015,
he came home from work to find that Williams had cut her own
wrists because she was upset that he had come home late. When
Holland tried to bandage her wrists, Williams started yelling and
hit Holland’s leg with a knife. Williams then shouted, “[W]ell, we’ll
both just die then,” and, “I’m going to shoot you . . . you deserve to
die.” When Holland saw Williams stand up and walk in the direction
of a firearm on the kitchen counter, he fled to his vehicle and left.
Cody Willard testified that he and Williams had a brief
romantic relationship. After they broke up, Willard remained
friends with Williams’s roommate Chad. One day in the fall of 2016,
Willard and some other friends were parked outside Williams’s
home talking with Chad. When Willard had to use the restroom, he
decided to do so behind the shed in Williams’s backyard. While on
his way to the shed, he saw Williams sitting outside. Williams told 7 him he needed to leave. Willard returned to his friend’s car and
continued speaking with Chad. Williams then came outside with a
gun and told Willard he needed to leave now. Willard jokingly
responded, “You won’t shoot me.” Williams, who was “kind of . . .
point[ing the gun] at [Willard],” told Willard, “I won’t shoot them,
but I’ll shoot you.” Willard and his friends then drove away. Willard
testified that the gun Williams used to threaten him appeared to be
the same gun that Williams shot Swinson with. Dustin also testified
as to this incident and recounted that Williams came into the house
that day and told him, “I’m going to kill Cody Willard,” and then
retrieved a firearm. He then looked outside and saw Williams
holding the firearm while she approached the vehicle that Willard
was sitting in.
Williams testified in her own defense at trial. According to
Williams, she purchased a box of wine on the evening of September
15, and she and Swinson were drinking the wine that evening. They
got into an argument in the car on the way home from her 8 grandparents’ house, and she hit Swinson in the face; Swinson then
hit her in the face in retaliation. At Swinson’s request, Williams
drove Swinson to his grandmother’s house. When they arrived,
Swinson got into a “stance like a boxer” and said, “[W]hy don’t you
want to fight me now when I can protect myself?” She claimed
Swinson swung at her and grabbed her by the waist and pinned her
up on the car and that she then scratched him. Williams also stated
that Swinson then carried her and slammed her into the door of his
grandmother’s house. Swinson’s uncle opened the door and told
them they “needed to take it somewhere else,” so Swinson let her go,
and she drove home.
When she returned home, Williams called her friend who
suggested that Williams put Swinson’s things outside so she would
not have to interact with Swinson if he came over.2 When Swinson
texted her and told her that he was coming over, she told him they
2 Williams’s friend testified at trial and confirmed that this conversation
took place. 9 should “do this tomorrow,” but Swinson responded that he was
coming over anyway. 3 Williams testified that when Swinson arrived,
he banged on her door. She opened the door and stepped outside to
tell him that his things were on the porch before going back inside
the house. Swinson started banging on the door again, and when she
cracked the door open to tell him to leave, he “pushed his way inside
the house.” Once inside, he “picked [her] up and tossed [her] down
on the floor.” When she “got back up and . . . tried to push him out
some more,” Swinson “picked [her] up again and . . . tossed [her] over
the couch.”
After she got up, Swinson was already in Chad’s bedroom, so
she went to the linen closet and retrieved her gun from its holster to
“scare” Swinson. She went to Chad’s bedroom and said, “[G]et the F
out.” Williams claimed, “The next thing I remember is I raised the
gun over my head, upward, and I went to hit him. I swung it down
3 No other evidence of this text message exchange was introduced at
trial. 10 to hit him on the head with it and then I saw him fall down. And I
saw him fall down and I thought I had knocked him out, but then I
saw the blood and Chad screamed. So I ran and grabbed my phone
and I threw the gun into the closet and I called the police.” However,
Williams also testified that she did not know whether the gun
actually hit Swinson when it went off.
1. Williams first asserts that the trial judge should have
granted her motion to recuse. The record shows that, on the morning
of the third day of trial, Williams filed a motion to recuse the trial
judge, which was referred to and heard by a different judge. At an
evidentiary hearing conducted that same day, Williams’s former
employer, local attorney Patrick Ferris, testified that, on the
previous day, he had entered the courtroom after court had been
adjourned to speak with friends inside. When he entered, he saw the
trial judge speaking to other local attorneys – Bruce Edwards and
Margaret McManes. Ferris became concerned because he knew that
Edwards and McManes were close to Swinson; that they considered 11 Swinson to be like a son to them; and that they were known to be
Swinson’s unofficial “adoptive parents.” Ferris did not hear the
conversation, but texted Williams’s trial counsel to advise him of the
situation. Ferris agreed that the jurors had already left the
courtroom at the time of the conversation.
McManes testified that she and Edwards considered Swinson
to be their “adopted son.” She explained that after court had
adjourned and the jurors were dismissed, she approached the trial
judge and asked if she could discuss something unrelated to the case.
She and the judge were standing near the exit door when they
discussed her biological son’s internship at the District Attorney’s
office the previous summer and thanked the judge for providing
career advice to her son during his internship. The judge
complimented McManes on her son’s polite manners and discussed
the difficulties of raising children with manners. McManes and the
judge also discussed other local attorneys they knew, and then
Edwards joined the conversation and discussed a friend that he had 12 recently encountered at a high school reunion. McManes testified
that they never discussed anything about the pending trial.
A court reporter for another judge testified that she had
entered the courtroom to locate Edwards on behalf of the Clerk of
Court regarding an unrelated matter. At that time, court had
already adjourned and the trial judge was speaking with McManes
and Edwards. When she approached Edwards, she heard a portion
of the conversation; they were discussing the poor health of another
judge and the death of that judge’s son. At that point, she told
Edwards that he was wanted in the clerk’s office and the
conversation ended. She did not hear anyone discuss the case or
Swinson. The assigned judge denied Williams’s request to question
the trial judge at the hearing and denied the motion that same day,
making findings of fact and concluding that “a fair-minded and
impartial person would not have a reasonable perception of a judge’s
lack of impartiality based upon objective facts set forth in the
affidavit, facts of the case, or reasonable inferences therefrom.” 13 We review a trial court’s ruling on a motion to recuse for an
abuse of discretion. See Pierce v. State, 319 Ga. 846, 863 (9) (907
SE2d 281) (2024). “When considering the issue of recusal, both
OCGA § 15-1-8 and . . . the Code of the Judicial Conduct should be
applied. The Code of Judicial Conduct provides a broader rule of
disqualification than does OCGA § 15-1-8.” Barnett v. State, 300 Ga.
551, 554 (2) (796 SE2d 653) (2017) (citation and punctuation
omitted). Williams does not allege that any provision of OCGA § 15-
1-8 is applicable here.4 Rather, she relies on Rule 2.11 (A) of the
4 This statute provides:
(a) No judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall: (1) Sit in any case or proceeding in which he is pecuniarily interested; (2) Preside, act, or serve in any case or matter when such judge is related by consanguinity or affinity within the third degree as computed according to the civil law to any party interested in the result of the case or matter; or (3) Sit in any case or proceeding in which he has been of counsel, nor in which he has presided in any inferior judicature, when his ruling or decision is the subject of review, without the consent of all parties in interest. In all cases in which the presiding judge of the superior court was
14 Georgia Code of Judicial Conduct, which provides that “[j]udges
shall disqualify themselves in any proceeding in which their
impartiality might reasonably be questioned.” Specifically, Williams
argues that, although the conversation at issue here might seem
innocuous on the surface, it created the perception that the judge
was sympathetic to the State’s case by speaking with the victim’s
quasi-adoptive family while the trial was still pending.
employed as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside, unless he declines to do so. (b) No judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall be disqualified from sitting in any case or proceeding because of the fact that he is a policyholder or is related to a policyholder of any mutual insurance company which has no capital stock. (c) Nothing in this Code section shall be construed as applying to the qualifications of trial jurors. (d) In all cases in which a part-time judge has a conflict because such judge or his or her partner or associate represents a governmental agency or entity, a subdivision of government, or any other client, the judge will recuse himself or herself or, with the permission of the parties, transfer the case to the state or superior court, but such judge will not otherwise be disqualified or prohibited from serving as attorney for such governmental entities. 15 As an initial matter, we note that the trial judge properly
referred the recusal motion to a neutral judge, who conducted a
timely evidentiary hearing. See Ga. Unif. Super. Ct. Rule 25.3 (“If it
is found that the motion [to recuse] is timely, the [required] affidavit
sufficient and that recusal would be authorized if some or all of the
facts set forth in the affidavit are true, another judge shall be
assigned to hear the motion to recuse.”); Henderson v. State, 295 Ga.
333, 334 (1) (759 SE2d 827) (2014) (outlining procedures when
assessing a motion to recuse). And that neutral judge found no
evidence that the parties involved discussed the pending trial in any
way, and it is undisputed that there were no jury members present
in the courtroom to witness the discussion. Because these findings
are supported by evidence in the record, we conclude that the
neutral judge did not abuse his discretion in determining, under a
reasonable person standard, that the limited conversation unrelated
to the pending trial did not result in the appearance of impropriety.
See Heidt v. State, 292 Ga. 343, 348 (3) (736 SE2d 384) (2013) 16 (defendant failed to show judge’s impartiality might reasonably be
questioned where testimony regarding the judge’s out-of-court
statement merely showed the judge had expressed “some sort of
agreement” to a third-party statement that defendant would not
receive a fair trial in Effingham County, but failed to show the judge
had revealed any bias against defendant); Turner v. State, 280 Ga.
174, 175-76 (626 SE2d 86) (2006) (“Keeping in mind the reality that
any judge will have come to the bench after having had extensive
contacts with the community, we conclude that [the judge’s] limited
contact with [the defendant] and her mother is not enough to call
into question his impartiality in this case.” (citation and punctuation
omitted)).5 Accordingly, this enumeration of error fails.
2. Williams next asserts that the trial court erred in refusing
5 Serdula v. State, 344 Ga. App. 587 (812 SE2d 6) (2018), which Williams
relies on, is readily distinguishable. In that case, the Court of Appeals concluded that the trial court erred in denying the defendant’s motion to recuse without referring the motion to another judge. Id. at 591 (1) (“Even if the trial court were not inclined to recuse itself, at a minimum, the motion should have been referred to another judge.”). 17 to charge the jury on self-defense, accident,6 and voluntary
manslaughter.
Williams’s initial requests to charge included requests for
accident, voluntary and involuntary manslaughter, justification
generally, self-defense, defense of property, and defense of
habitation. At the charge conference, Williams withdrew
justification generally and defense of habitation. After the trial court
declined to charge on accident, voluntary manslaughter, involuntary
manslaughter, self-defense, and defense of property, 7 Williams
renewed her objections, which the trial court denied. But the trial
6 Although Williams did not separately enumerate the omission of the
accident charge as error in her appellate brief, she did argue with citations to the record and citations to authority that the trial court erred in refusing to give a charge on accident. For these reasons, we conclude that this argument was not abandoned as the State argues. Cf. Supreme Court Rule 22 (1) (“Any enumerated error or subpart of an enumerated error not supported by argument, citations to authority, and citations to the record shall be deemed abandoned.”). 7 The trial court ultimately gave a charge on general affirmative
defenses: “Ladies and Gentlemen, an affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.” 18 court responded that Williams would, nonetheless, be able to argue
self-defense in closing arguments, specifically referencing that
Williams had testified that Swinson “threw her down twice” and
“wouldn’t leave” prior to the shooting. 8
“[T]o authorize a requested jury instruction, there need only be
slight evidence supporting the theory of the charge.” Wainwright v.
State, 305 Ga. 63, 70 (5) (823 SE2d 749) (2019) (citation and
punctuation omitted). “We review de novo a properly preserved
claim that a trial court erred in refusing to instruct the jury on an
applicable principle of law.” Eubanks v. State, 317 Ga. 563, 581 (3)
(b) (894 SE2d 27) (2023) (citation and punctuation omitted).
(a) Self-Defense
Williams argues that the evidence showed that she was
8 During closing argument, trial counsel argued that Swinson broke into
Williams’s house, stayed despite her request to leave, and “thr[e]w her around” before she got the gun and told him to “get the F out.” Counsel also argued that Williams did not intend to kill Swinson and that the gun went off as the result of an accident. 19 preparing to defend herself when the gun fired accidentally and that
she was, therefore, entitled to a charge on both self-defense and
accident. “Although a defendant may assert both the defense of
accident and the defense of self-defense, the defendant is entitled to
charges on both only if slight evidence supports both charges.”
Johnson v. State, 319 Ga. 562, 570 (1) (c) (905 SE2d 570) (2024).
Turning first to self-defense, we note that OCGA § 16-3-21 (a)
provides that “[a] person is justified in threatening or using force
against another when and to the extent that he or she reasonably
believes that such threat or force is necessary to defend himself or
herself or a third person against such other’s imminent use of
unlawful force.”
Williams has failed to point to even slight evidence that she
reasonably believed at the time of the shooting that force was
necessary to defend herself against Swinson’s imminent use of
unlawful force. Although Williams eventually claimed at trial that
Swinson picked her up and threw her down upon coming into the 20 house, Williams’s own testimony showed that whatever altercation
occurred between her and Swinson had concluded at the time she
decided to retrieve her gun. On cross-examination, she conceded
that Swinson “did not do anything towards [her]” while she was
holding the gun. Also, both Williams and Chad testified that
Swinson was in Chad’s bedroom when Williams went to retrieve her
gun. And Chad testified that when he awoke with Swinson in his
bedroom, Swinson told him that he wanted Chad “to be a witness to
whatever happens,” and showed Chad scratches on his back.
Finally, there is no evidence that Swinson was armed that evening
or that Williams was otherwise in immediate danger from Swinson
at the time of the shooting. In short, while Williams and Swinson
may have been engaged in a physical confrontation in a general
sense, the evidence showed that the two had separated and that
Swinson was not imminently attacking Williams when she shot him.
See Redding v. State, 311 Ga. 757, 761 (3) (858 SE2d 469) (2021)
(appellant’s testimony that the victim threatened him earlier in the 21 evening did not show imminent danger); Cloud v. State, 290 Ga. 193,
196 (719 SE2d 477 (2011) (“Justification cannot be based on an
assault which has ended.”). Thus, we conclude that the trial court
did not err in refusing to give a self-defense charge. See Merritt v.
State, 311 Ga. 875, 890 (7) (860 SE2d 455) (2021) (trial court did not
err by refusing to give self-defense charge where appellant pointed
to no evidence that shooting the victim was necessary to defend
himself or any third person from imminent use of unlawful force);
Garner v. State, 303 Ga. 788, 790-91 (2) (815 SE2d 36) (2018) (trial
court did not err by refusing to charge on self-defense where there
was no evidence that appellant was in fear of suffering harm during
the encounter with the victim or that the victim was reaching for a
weapon).
(b) Accident
“To succeed on an affirmative defense of accident, the
defendant must show that he acted without criminal intent, was not
engaged in a criminal scheme, and was not criminally negligent, 22 that is, he did not act in a manner showing an utter disregard for
the safety of others who might reasonably be expected to be injured
thereby.” Mills v. State, 287 Ga. 828, 832 (4) (700 SE2d 544) (2010).
See also OCGA § 16-2-2 (“A person shall not be found guilty of any
crime committed by misfortune or accident where it satisfactorily
appears there was no criminal scheme or undertaking, intention, or
criminal negligence.”).
Here, Williams’s own testimony showed that, after an evening
in which she drank several glasses of wine, she retrieved her gun—
that she knew to be loaded—from its holster and walked down the
hall with the gun to Chad’s room in order to “intimidate” Swinson
and that she intentionally “raised the gun over [her] head” and then
“swung it down to hit him on the head with it” while her finger was
“probably” on the trigger. At a minimum, “[m]isuse of a firearm in
the manner described by [Williams] shows a degree of culpability
that constitutes criminal negligence.” Mills, 287 Ga. at 832 (4)
(because defendant was criminally negligent in climbing into bed 23 with victim holding a loaded handgun with his finger on the trigger
and pointing the gun at the victim, defendant was not entitled to a
charge on accident). Because “death caused by criminal negligence
is not an accident,” the trial court did not err in refusing to charge
the jury on this defense. Id. (citation and punctuation omitted). See
also Bonner v. State, 311 Ga. 466, 469-70 (3) (858 SE2d 496) (2021)
(trial court did not err in refusing to charge on accident where, other
than appellant’s conclusory statement, no evidence suggested that
the gun malfunctioned or that the shooting was accidental); Stewart
v. State, 261 Ga. 654, 654 (2) (409 SE2d 663) (1991) (no accident
charge required where defendant said pre-trial that he aimed a
loaded gun at the victim’s face to show her what “being under the
gun” was like and also testified that he pulled a loaded gun across
his lap to show her what “being under the gun was like”; both
scenarios show criminal negligence). Cf. Schmitt v. State, 318 Ga.
835, 840-42 (1) (901 SE2d 102) (2024) (trial court error in denying
accident charge as defense to malice murder count was not harmless 24 where appellant’s theory of accident did not rest on conduct that was
criminally negligent).
(c) Voluntary Manslaughter
Williams also argues that her testimony that Swinson entered
her home and “tossed [her] down” was sufficient to require the trial
court to charge the jury on voluntary manslaughter. We disagree.
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 cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
We have consistently held that fear of attack and fighting are not
the kind of “serious provocation” that can reduce the offense of
murder to voluntary manslaughter. See Behl v. State, 315 Ga. 814,
816 (1) (885 SE2d 7) (2023) (“[N]either fear that someone is going to 25 pull a weapon nor fighting are the types of provocation that demand
a voluntary manslaughter charge.” (citation and punctuation
omitted)); Johnson v. State, 313 Ga. 698, 700 (873 SE2d 123) (2022)
(“The fact that an uninvited guest approaches the defendant’s door,
knocks on the door, and then does not immediately comply with a
request to leave” does not constitute the provocation necessary to
support voluntary manslaughter.); Williams v. State, 306 Ga. 717,
721 (2) (832 SE2d 805) (2019) (voluntary manslaughter requires
that a defendant “was so angered that he reacted passionately,” not
merely that the defendant “was attempting to repel an attack”).
Thus, the evidence that Swinson entered Williams’s home and
fought with her does not demonstrate the type of circumstances that
we have found would excite such passion in a reasonable person to
justify a voluntary manslaughter charge. Accordingly, the trial court
did not err in refusing to charge the jury on voluntary manslaughter.
3. Lastly, Williams alleges that her trial counsel rendered
constitutionally ineffective assistance by withdrawing the request to 26 charge the jury on defense of habitation because the evidence
showed that she was defending her home when she accidentally shot
Swinson. 9
To prevail on her claim, Williams must show both that
counsel’s performance was deficient and that the deficient
performance prejudiced her defense. See Strickland v. Washington,
9 OCGA § 16-3-23 provides:
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence; (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony. 27 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove
deficient performance, a defendant must show that [her] counsel
performed in an objectively unreasonable way considering all the
circumstances and in light of prevailing professional norms.” Pyne
v. State, 319 Ga. 776, 779 (1) (906 SE2d 755) (2024) (citation and
punctuation omitted). “To satisfy the prejudice prong, a defendant
must establish a reasonable probability that, in the absence of
counsel’s deficient performance, the result of the trial would have
been different.” Perkins v. State, 313 Ga. 885, 901 (5) (873 SE2d 185)
(2022). If Williams fails to make a sufficient showing on one part of
the Strickland test, we need not address the other. See Bowman v.
State, 319 Ga. 573, 576-77 (2) (905 SE2d 605) (2024).
Pretermitting whether counsel was deficient in withdrawing
the request to charge on the defense of habitation and whether there
was slight evidence to support the charge, Williams has failed to
show prejudice. The evidence supporting this defense was weak, and
the evidence of Williams’s guilt was strong. Williams claimed at trial 28 that Swinson entered her home with force and “tossed [her] down”
and that she went to get her gun in order to tell Swinson to leave.
But crime scene photographs and Chad’s testimony showed that
nothing was out of place in the living room area where the
altercation was alleged to have taken place, other than Swinson’s
cell phone on the floor. Also, Swinson was unarmed and had
retreated to Chad’s bedroom when Williams went to get her gun.
And Chad testified that Swinson had asked him to “be a witness to
whatever happens.” Moreover, in her call to the 911 operator and
when questioned by law enforcement officers after the shooting,
Williams never claimed that she accidentally shot Swinson while
attempting to make him leave her home; instead, she explained that
she accidentally shot Swinson while they were arguing and breaking
up.
Other evidence also supported that Williams shot Swinson out
of anger. Williams admitted to the 911 operator that she “didn’t
realize that [she] had the trigger pulled.” Also, Swinson’s 29 grandmother and uncle confirmed that Swinson and Williams had
been fighting earlier in the evening, and Swinson had significantly
more physical injuries than Williams despite Williams’s testimony
that Swinson had thrown her over the couch. Finally, the State
presented evidence that Williams had a history of threatening to
shoot her romantic partners without provocation.10
Accordingly, because Williams has not shown that there is a
reasonable probability that the result of her trial would have been
different but for counsel’s withdrawal of the request to charge on the
defense of habitation, her claim of ineffective assistance of counsel
fails. See State v. Newman, 305 Ga. 792, 797-98 (2) (a) (827 SE2d
678) (2019) (in the context of plain error, trial court’s failure to
charge on defense of habitation “did not likely affect the outcome of
the trial court proceedings” in light of the compelling evidence of
defendant’s guilt); Barrett v. State, 292 Ga. 160, 178-79 (3) (c) (5)
10 Williams does not claim on appeal that this evidence was improperly
admitted, and we express no opinion on that issue. 30 (733 SE2d 304) (2012) (no prejudice shown from counsel’s failure to
request defense of habitation charge where defendant’s own
testimony would not have established reasonable belief that deadly
force was necessary to prevent unlawful entry into residence); Hill
v. State, 290 Ga. 493, 500 (7) (722 SE2d 708) (2012) (appellant failed
to show prejudice where evidence of his guilt was overwhelming and
he did not establish how a jury charge on defense of habitation would
have raised a reasonable probability that the outcome of the case
would have been different).
Judgment affirmed. All the Justices concur.