CourtListener 10680063

Gesamter Gesetzestext

317 Ga. 175
FINAL COPY

S23A0715. ANNUNZIATA v. THE STATE.

LAGRUA, Justice.

Appellant Robert Annunziata was tried and convicted of malice

murder and other crimes in connection with a shooting that took

place outside of a nightclub that resulted in the death of John Price

and injuries to Washington Young and Andrew Darling.1 On appeal,

Appellant contends that the trial court erred in refusing to instruct

1 The crimes occurred on May 25, 2019. On November 19, 2019, a Fulton

County grand jury indicted Appellant for malice murder (Count 1), two counts
of felony murder (Counts 2 and 3), three counts of aggravated assault with a
deadly weapon (Counts 4, 5, and 6), possession of a firearm during the
commission of a felony (Count 7), and possession of a firearm by a convicted
felon (Count 8). Appellant was tried from September 28 to 30, 2021, and the
jury found him guilty on all counts. Appellant was sentenced to serve life in
prison without the possibility of parole plus 50 years. The felony murder counts
were vacated by operation of law, and the aggravated assault count associated
with Price merged into the malice murder count for sentencing purposes.
Following his conviction, Appellant filed a motion for new trial on October 29,
2021, and amended his motion on February 28, 2022. A hearing was held on
May 3, 2022. The trial court denied the motion for new trial, but vacated Count
8 after the State conceded that it failed to show evidence of a prior felony
conviction. Appellant then filed a timely notice of appeal to this Court, and the
case was initially docketed to this Court’s August 2022 term but was remanded
to the trial court to complete the record in February 2023. After the record was
completed, this case was re-docketed to this Court’s April 2023 term and
submitted for a decision on the briefs.
the jury on voluntary manslaughter. We disagree and affirm.

The evidence presented at Appellant’s trial showed that, in the

early morning hours of May 25, 2019, Appellant arrived at a

nightclub with two companions. They attempted to enter, but were

not admitted, causing Appellant to become upset. Sloan Duckie, the

event organizer, explained to Appellant that Appellant had paid for

only one entry, and that he would have to pay two additional cover

charges if he wanted his entire group to get into the nightclub.

Appellant responded that he wanted a refund for the initial cover

charge he had paid, so Duckie proceeded to process the refund

through a mobile payment application. Appellant became upset

because he wanted his refund immediately in cash, despite having

paid the cover charge electronically. Duckie then explained that it

would take a few days for the refund to go through, and he could not

give Appellant cash because he had already initiated the electronic

refund. Appellant became increasingly agitated.

Young and Price were working security at the nightclub that

evening. Young was working just inside the front doors, and Price

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was working outside in front of the nightclub. Young observed the

interaction between Appellant and Duckie at the entrance to the

nightclub. As the conversation intensified and “got loud[er],” Price

approached Appellant and Duckie and told Appellant, “[I]t’s time to

go.” After Appellant refused to comply with multiple requests to

leave, Price picked up Appellant, carried him outside, and dropped

him on the ground. Young testified that Appellant landed on his feet,

but he “kind of fell backwards.” Surveillance footage from the

nightclub supported the witnesses’ testimony at trial. Although

there is no audio, Price and Appellant can be seen engaging in a

heated exchange on the surveillance footage. Young testified that

Price came outside and told Appellant: “[I]t’s time to go. Just go

home.” Price then went inside the nightclub, and Young came

outside and told Appellant to leave.

Appellant did not leave as instructed. After Price walked back

into the nightclub, Appellant began “egging [Price] on” and

attempted to reenter the nightclub, telling Price to “come outside.”

Surveillance footage from the nightclub’s entrance showed

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Appellant beckoning to someone inside the nightclub while standing

outside the entrance; Price coming out of the nightclub and shoving

Appellant; and Appellant falling into a sign outside the front of the

entrance to the nightclub. The footage further showed that after

Appellant regained his footing, he approached his friend and stood

next to him while Price continued to appear agitated, motioning

with his hands and speaking to Appellant and his friend. Young

testified that he heard Appellant say repeatedly to his friend, “Give

me the ting.” Young testified that he understood “ting” to be West

Indian slang for “firearm.” Young heard Appellant’s friend tell him,

“Just wait, not now,” and the two of them walked away from the

nightclub around the corner of the building. Price re-entered the

nightclub.

Young testified that he knew Appellant was “going to come

back” because “he [was] upset,” so Young took out his pistol and put

it behind his back under his jacket.2 Appellant then came running

2 Young was licensed to carry a firearm and was routinely armed in his

role as a security guard. At all times during the course of the evening, Price
was unarmed.
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back around the building with a gun in his hand. As Appellant

started running up the stairs toward the entrance to the nightclub

with a gun drawn, Young told him: “[T]here’s no need for that[.] It’s

over. Everybody go home and have a good time. Tomorrow is another

day.” Appellant responded saying, “All right, it’s cool . . . no

problem,” and initially started to walk away. Young testified that

Appellant was “really upset,” and while Appellant acted like he was

leaving, he tried to push past Young and enter the nightclub with

the gun. Young told everyone standing outside the nightclub to get

inside, pulled his weapon, and held it behind his back while pushing

Appellant away from the nightclub. Appellant reached around

Young and began shooting toward Price and the front entrance of

the nightclub. Young grabbed Appellant’s gun-wielding arm, and

Appellant stumbled down the stairs, shooting at Young. A bullet

grazed the side of Young’s right leg. Appellant and his friend ran,

and Young chased them into the nightclub parking lot. Appellant

shot at Young again, and Young returned fire. Appellant and his

friend got into their vehicle and left the premises. Young heard

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someone say that Price had been shot, so he returned to the

nightclub to check on Price. Surveillance footage confirmed Young’s

testimony.

Around 2:00 a.m., Atlanta Police Department officers

responded to a 911 call of “shots fired” at the nightclub. When they

arrived, officers found a gunshot victim — later identified as Darling

— next to the building and rendered aid to him. The officers also

discovered a deceased victim — later identified as Price — lying on

the patio outside the nightclub. Price had been shot in the left side

of his face, and the medical examiner testified that, based on the

bullet trajectory, his injuries were consistent with crouching on the

ground when he was shot.

During their investigation, officers obtained a copy of the

receipt for the refund processed to Appellant. Using the name on the

receipt, officers were able to access Appellant’s driver’s license and

photograph, and they used this photograph in lineups shown to

multiple witnesses at the scene. Three witnesses, including Duckie

and Young, identified Appellant as the shooter. After Appellant was

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positively identified and officers reviewed the surveillance footage

from the nightclub, an arrest warrant was issued for Appellant on

May 26, 2019. Appellant was arrested by the Connecticut State

Patrol on July 7, 2019, in Stonington, Connecticut, after being pulled

over for speeding. Appellant was then extradited to Georgia.

In his sole enumeration of error, Appellant contends that the

trial court erred in refusing to instruct the jury on voluntary

manslaughter.3 At trial, Appellant submitted a written request to

instruct the jury on voluntary manslaughter. Appellant did not

testify at trial, and following the close of the evidence, the trial court

informed the parties that it would not give a voluntary

manslaughter instruction because the evidence did not support it.

Appellant did not object after the jury was charged.

Because Appellant did not object to the trial court’s refusal to

instruct the jury on voluntary manslaughter, we review Appellant’s

3 A person commits voluntary manslaughter when he causes the death

of another “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[.]” OCGA § 16-5-2 (a).
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claim of instructional error for plain error and reverse only if (1) the

instruction was erroneous, (2) the error was obvious, (3) the

instruction likely affected the outcome of the proceedings, and (4)

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See Davis v. State, 312 Ga. 870,

874 (2) (866 SE2d 390) (2021). See also OCGA § 17-8-58 (b). And we

need not analyze all of the elements of the plain-error test when, as

in this case, Appellant has failed to establish one of them. See Early

v. State, 313 Ga. 667, 672 (2) (b) (872 SE2d 705) (2022). Turning to

our analysis of whether the trial court committed plain error in

refusing to give the voluntary manslaughter charge, we conclude

that there was no error, because, as discussed below, the evidence

presented did not meet the threshold of “slight evidence” necessary

to require a jury charge on voluntary manslaughter. See Thompson

v. State, 312 Ga. 254, 257-258 (2) (862 SE2d 317) (2021).

Although a trial court is required to charge the jury on

voluntary manslaughter if there is “any evidence, however slight” to

support such a charge, Thompson, 312 Ga. at 257 (2) (citation and

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punctuation omitted), it is still “a question of law for the courts to

determine whether the defendant presented any evidence of

sufficient provocation to excite the passions of a reasonable person.”

Barton-Smith v. State, 309 Ga. 799, 801 (2) (848 SE2d 384) (2020)

(citation and punctuation omitted). “This is an objective standard,

and we must evaluate the alleged provocation evidence with respect

to its effect on a reasonable person, putting aside any peculiar

response Appellant may have had.” Orr v. State, 312 Ga. 317, 320-

321 (2) (862 SE2d 513) (2021) (citation and punctuation omitted).

Further, evidence of a “violent exchange” or the exchange of angry

statements does not amount to the serious provocation within the

meaning of OCGA § 16-5-2 (a). Jones v. State, 314 Ga. 466, 470 (2)

(877 SE2d 568) (2022) (noting that despite a “violent exchange”

between the appellant and victim and that the two “had some kind

of words,” the interaction did not qualify as serious provocation to

warrant a voluntary manslaughter charge). Even a physical

confrontation between two individuals does not necessarily provide

the slight evidence necessary to require a voluntary manslaughter

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charge. See Johnson v. State, 313 Ga. 698, 700 (873 SE2d 123) (2022)

(voluntary manslaughter instruction was not warranted when the

gunshot victim knocked on the front door of the defendant’s mother’s

home, confronted the defendant for disrespecting his mother, and

when defendant pulled a gun on the victim, the victim shoved the

gun away, causing the defendant to fall, become upset, and then

shoot the victim).

Appellant argues that there was evidence from which the jury

could have concluded that the shooting was the result of a “sudden,

violent, and irresistible passion resulting from serious provocation”

because Price “physically picked [Appellant] up, took him outside,

and dropped him, causing [Appellant] to fall backwards,” and then,

at another point, Price shoved Appellant. However, no evidence was

presented to show that anything occurred on the night of the

shootings that rose to the level of the serious provocation necessary

to support a voluntary manslaughter instruction. Being tossed out

of a nightclub after a disagreement about the cover charge would not

provoke in a reasonable person a “sudden, violent, and irresistible

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passion” to shoot and kill the security guard. OCGA § 16-5-2 (a). See

Mobley v. State, 314 Ga. 38, 43 (875 SE2d 655) (2022) (holding that,

because the defendant knew he was not permitted on the victim’s

premises and had ignored the victim’s demand to leave, the victim’s

conduct in refusing to let the defendant into her home, arguing with

the defendant, and shooting the defendant “would not be sufficient

to excite [a sudden, violent, and irresistible] passion in a reasonable

person” (emphasis in original)).

Appellant also argues that the “charge conference should not

have focused on whether or not sufficient time had elapsed for the

jury to find a ‘cooling off’ had occurred” because “[t]he security video

showed that only 25 seconds elapsed between when [Appellant] . . .

began to leave the [nightclub] entrance [ ] and when he returned

with a gun,” and the jury could have found that “25 seconds” was not

a “sufficient interval after the provocation” for Appellant to cool off.

However, the charge-conference transcript does not reflect that the

trial court considered the interval between the provocation and the

shooting in determining there was not slight evidence of serious

11
provocation. But, in its order denying the motion for new trial, the

court clarified that there were two independent and alternative

grounds for refusing to instruct the jury on voluntary manslaughter

and that the interval factored into its reasoning as to only one of

those grounds. Specifically, the court concluded that there was no

evidence of serious provocation that would “excite [a] sudden,

violent, and irresistible passion in a reasonable person,” and the

court separately concluded that “there was an interval sufficient for

the voice of reason and humanity to be heard.” See Henderson v.

State, 234 Ga. 827, 831 (2) (218 SE2d 612) (1975) (noting that,

although the jury must determine whether there was an interval

between the provocation and the killing sufficient for the voice of

reason and humanity to be heard, “it is a question of law for the

courts to determine whether there [was] slight evidence that the

defendant acted as the result of sudden, violent, and irresistible

passion resulting from serious provocation”). The court did not

consider the interval between the provocation and the shooting in

determining that there was not even slight evidence of serious

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provocation, and, as we concluded above, the court correctly declined

to instruct the jury on voluntary manslaughter on that basis.

Accordingly, we need not address the court’s alternative ruling that

the charge was unwarranted due to a cooling-off period.

Judgment affirmed. All the Justices concur.

Decided August 21, 2023.

Murder. Fulton Superior Court. Before Judge Ellerbe.

Kevin A. Anderson, for appellant.

Fani T. Willis, District Attorney, Kevin C. Armstrong, Jayna

Edwards, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Paula

K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick,

Assistant Attorney General, for appellee.

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: August 21, 2023

S23A0715. ANNUNZIATA v. THE STATE.

LAGRUA, Justice.

Appellant Robert Annunziata was tried and convicted of malice

murder and other crimes in connection with a shooting that took

place outside of a nightclub that resulted in the death of John Price

and injuries to Washington Young and Andrew Darling. 1 On appeal,

1 The crimes occurred on May 25, 2019. On November 19, 2019, a Fulton

County grand jury indicted Appellant for malice murder (Count 1), two counts
of felony murder (Counts 2 and 3), three counts of aggravated assault with a
deadly weapon (Counts 4, 5, and 6), possession of a firearm during the
commission of a felony (Count 7), and possession of a firearm by a convicted
felon (Count 8). Appellant was tried from September 28 to 30, 2021, and the
jury found him guilty on all counts. Appellant was sentenced to serve life in
prison without the possibility of parole plus 50 years. The felony murder counts
were vacated by operation of law, and the aggravated assault count associated
with Price merged into the malice murder count for sentencing purposes.
Following his conviction, Appellant filed a motion for new trial on October 29,
2021 and amended his motion on February 28, 2022. A hearing was held on
May 3, 2022. The trial court denied the motion for new trial, but vacated Count
8 after the State conceded that it failed to show evidence of a prior felony
conviction. Appellant then filed a timely notice of appeal to this Court, and the
case was initially docketed to this Court’s August 2022 term but was remanded
to the trial court to complete the record in February 2023. After the record was
Appellant contends that the trial court erred in refusing to instruct

the jury on voluntary manslaughter. We disagree and affirm.