Anderson v. State

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official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0177
De’Monte Anderson
v.
The State

On Appeal from the Superior Court of DeKalb County
No. 20CR143810

Decided: June 2, 2026

LAND, Justice.
Appellant De’Monte Anderson challenges his 2022 convic-
tions for malice murder and other crimes in connection with the
shooting death of Dwayne Roberts. 1 Anderson argues that his

1 Roberts was killed on October 20, 2019. On February 13, 2020, a DeK-
alb County grand jury indicted Anderson for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony in connection with Roberts’s death, and for battery of his girlfriend, Des-
tiny Head. On September 26, 2022, the trial court entered a nolle prosequi
order for the battery count. At a trial from September 26 to 29, 2022, the jury
found Anderson guilty of all remaining charges. The trial court sentenced An-
derson to serve life in prison with the possibility of parole for malice murder
and a consecutive term of 5 years in prison for possession of a firearm during
the commission of a felony. The felony murder count was vacated by operation
of law and the aggravated assault count merged with the malice murder count
for sentencing purposes. On October 10, 2022, Anderson filed a motion for new
trial, which was subsequently amended. The trial court held an evidentiary
hearing on April 7, 2025, and entered a written order denying Anderson’s mo-
tion for new trial on April 8, 2025. On May 2, 2025, Anderson filed a notice of
appeal. The case was docketed to this Court’s term beginning in December
2025 and submitted for a decision on the briefs.
trial counsel rendered ineffective assistance by failing to object to
two jury instructions. For the reasons that follow, we affirm.
1. The evidence presented at trial showed as follows. In Oc-
tober 2019, Anderson 2 and his girlfriend, Destiny Head, lived to-
gether in an apartment. On October 19, 2019, Head drove with
her cousin and sister to a friend’s house, purchased and drank
some wine, dropped her cousin and friend back off at their respec-
tive homes, and then went alone to a party at different friend’s
house. While at the party, Head became intoxicated and passed
out around 8:00 or 8:30 p.m. When Head woke up around 1:00 or
2:00 a.m., she saw that she had between 15 to 20 missed calls
from Anderson, along with several angry text messages from An-
derson. Head prepared to leave, but she learned that her car had
been damaged, became upset, and got into a fight with a woman
at the party and “messed up” her arm. Head then left the party
and decided to go to the hospital for her arm injury. Head tried to
call Anderson multiple times, but he did not answer, and she be-
gan to drive to the hospital. After Head stopped at a store and
unsuccessfully tried calling Anderson again, she spoke with a
ride-share driver, later identified as Roberts, who told her he
would take her to the hospital. Roberts first followed Head to her
apartment so that Head could tell Anderson where she was going.
When Head arrived at the apartment, she told Anderson
about the fight. Head testified that Anderson “started fighting me
for no reason,” hitting Head in the face and pushing her to the
ground. While Head began packing her stuff from the apartment
and taking it to Roberts’s car, Anderson spoke with Roberts and
then confronted Head as to why Roberts would say “he was [her]
man.” Head told Anderson to leave Roberts alone and approached

2 Head knew Anderson as “Money.”

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Roberts, who denied saying he “was [her] man.” As Head walked
back into the apartment to continue packing her things, she heard
two gunshots, Roberts say, “this n***a is trying to kill me,” and a
third gunshot. When Head returned to the front of the building,
she saw Anderson “leaning” into the open passenger-side window
of Roberts’s car and “tugging something.” Head began to scream
and Anderson hit her again. As Head attempted to help Roberts,
who had fallen partway out of the vehicle, Anderson grabbed a
bag, got in his truck, and drove away from the scene.
DeKalb County police responded to a call about a person
shot and arrived at Head’s apartment shortly after 5 a.m. The
responding officer testified that, upon arriving at the scene, he
found Roberts lying on the ground next to the driver’s side of an
SUV. Roberts was unresponsive, and the officer and emergency
medical personnel attempted to render aid. Head told the officer
that Anderson had shot Roberts and “struck” her. Investigators
found blood on the driver’s side door of the SUV, as well as .40
caliber Smith and Wesson cartridge casings in the passenger side
seat and on the rear passenger floorboard. 3
The medical examiner who performed an autopsy of Rob-
erts’s body testified that Roberts was shot four times: once in the
right side of his chest, once in the right side of his back, once in
his left hand, and once on his right thumb. The medical examiner
also recovered a bullet from Roberts’s left hand. The medical ex-
aminer determined that Roberts was shot from the passenger side
of the vehicle and that “it [was] reasonable to believe” that Rob-
erts was “either in a slumped over … or crouched position” when
he was shot in the back. The medical examiner testified that the

3 Investigators also found two 9 mm casings in the parking lot that
were “worn and dull in appearance,” indicating they were unrelated to Rob-
erts’s shooting.

3
range of fire for the wounds to Roberts’s chest and back were in-
determinate due to the lack of abrasion, soot, or stippling. Be-
cause the edges surrounding the wound to Roberts’s right thumb
were burned or seared, the medical examiner testified that Rob-
erts’s thumb was likely shot at close range. The medical examiner
testified that the graze wound to Roberts’s right thumb was “most
indicative of a defensive-type wound” and that the injury to his
left hand “could be” a defensive wound as well. The medical ex-
aminer testified that the cause of Roberts’s death was multiple
gunshot wounds, and the manner of death was a homicide.
A GBI firearms and tool marks examiner testified that the
.40 caliber bullet recovered from Roberts’s hand was consistent
with being fired from a Glock .40 caliber pistol, Glock 10 mm pis-
tol, Bersa HNK IMI Kahr arms, or Vector .40 caliber pistol. He
also testified that the two .40 caliber casings recovered from Rob-
erts’s vehicle were fired from the same gun and consistent with
having been fired from a Glock .40 pistol. The GBI examiner tes-
tified that if the shooter was standing outside Roberts’s vehicle
with his arm extended straight out while holding a pistol inside
the window, he would expect to see cartridge casings inside the
vehicle (as investigators did here), but if the shooter was standing
outside the vehicle, with his hand also outside the vehicle, the
examiner would expect to see cartridge casings outside the vehi-
cle.
Police obtained a search warrant for Anderson’s apart-
ment, where they found two Smith and Wesson .40 caliber live
rounds, which matched the caliber of shell casings found in the
vehicle in which Roberts was shot.
Anderson’s acquaintance, Daniel Schaefer, was with An-
derson in the DeKalb County Jail in March 2020. Schaefer testi-
fied that a letter from Anderson was found by a sheriff’s deputy

4
in his jail cell indicating that Anderson wanted Head “to be dead”
by his court date. 4 Prior to trial, Anderson called Head multiple
times from the DeKalb County Jail and asked her not to come to
court. During the second call, in September 2020, Anderson told
Head to say she was drunk and that Anderson was not the
shooter.
Anderson testified in his own defense at trial that he asked
Roberts to leave twice, but that Roberts refused to go anywhere
“without [his] woman.” Anderson testified that Roberts then “got
… aggressive” and attempted to open the door to his SUV. Ander-
son then fired two shots at Roberts from outside the vehicle be-
cause he testified that he feared for his life. Anderson testified
that he was not angry with Head but was instead confused. On
cross-examination, Anderson conceded that he “did not know” if
he saw Roberts with a gun and was unable to explain how the two
spent shell casings ended up inside Roberts’s vehicle. Anderson
admitted that he threw his own gun out of the window of his ve-
hicle as he drove away from the scene to his mother’s house.
Prior to trial, Anderson’s trial counsel filed a request for
jury charges, including pattern charges on mutual combat
(2.10.43), voluntary manslaughter (2.10.40), defense of habitation
(2.10.80), affirmative defense (3.00.00), defense of self (3.10.10),
forcible felony (3.10.11), reasonable beliefs (3.10.12), no duty to
retreat (3.10.13), defense of home (3.12.10), and threats justifying
a homicide (3.16.10). During the charge conference, trial counsel
stated that he had “agreed to let in” the State’s request for the
pattern charge on words alone (2.10.42) and argued that, in this
case, there was “words plus act and that gives you an inference of

4 Anderson admitted during his trial testimony that he wrote the letter
to Schaefer.

5
voluntary manslaughter.”
During closing argument, trial counsel argued that Head
was not credible, that Anderson acted in self-defense, and that
Roberts’s death was not malice murder, felony murder, or even
manslaughter. The trial court instructed the jury as follows:
In considering malice or felony murder charges you
must decide whether the defendant was sufficiently
provoked and acted out of passion. If you find this
you may not return a verdict of guilty of malice or
felony murder but you will be authorized to return a
verdict of guilty of voluntary manslaughter. The
State must prove beyond a reasonable doubt that the
offense should not be reduced from murder to volun-
tary manslaughter.

For voluntary manslaughter the State must prove
that the defendant caused the death of another per-
son under the circumstances that would otherwise
be murder and acted only because of a sudden vio-
lent and irresistible passion that resulted from seri-
ous provocation which was sufficient to excite such
passion in a reasonable person. If you decide that
enough time passed between the provocation and the
killing for a reasonable person to have cooled off and
regained judgment then the killing is not voluntary
manslaughter.

Words alone, no matter how provoking, will never
reduce the crime from murder to voluntary man-
slaughter. However, words coupled with menacing
actions even if they do not amount to physical con-
tact may be enough to excite a sudden violent and

6
irresistible passion in a reasonable person. If you
find the defendant acted from such passion and not
from malice [or] any spirit of revenge then you would
be authorized to return a verdict of guilty of volun-
tary manslaughter.

During jury deliberations, the jury asked for a “legal defi-
nition of malice murder and voluntary manslaughter.” The State
requested the trial court instruct the jury again on malice mur-
der, voluntary manslaughter, and provocation by words alone.
Trial counsel agreed and asked the trial court to give pattern jury
instructions on provocation by words alone (2.10.42), the lesser
offense of murder: voluntary manslaughter (2.10.40), and volun-
tary manslaughter (2.10.41)again. The trial court instructed the
jury as requested. Later during deliberations, the jury asked for
the court to either read the entirety of the charges again slowly
or to receive a copy of the charges. Over trial counsel’s objection,
the trial court provided the jury with a copy of the jury instruc-
tions. The jury found Anderson guilty of all charges. 5
At the hearing on Anderson’s motion for new trial, trial
counsel testified that his defense strategy was to argue that Rob-
erts’s death was voluntary manslaughter, and this strategy influ-
enced his “hard” cross-examination of Head, his closing argu-
ment, and his requested jury instructions. Trial counsel testified
that he did not review the pattern jury instructions with Ander-
son and that he was “unaware if the burden ever shifted to the

5 The verdict form offered the jury three options as to Count 1 (Malice
Murder): “Not Guilty, Guilty, [or] Not Guilty of Malice Murder, but Guilty of
the lesser included, Voluntary Manslaughter.” The jury also had three options
as to Count 2 (Felony Murder): “Not Guilty, Guilty, [or] Not Guilty of Felony
Murder, but Guilty of the lesser included, Voluntary Manslaughter.”

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State” on voluntary manslaughter. When asked about the volun-
tary manslaughter charge, trial counsel testified that he did not
consider objecting to the charge on the grounds that it prohibited
the reduction of malice murder to voluntary manslaughter. Trial
counsel testified that he thought Anderson had a “strong self-de-
fense claim because [he] was at home,” that in the alternative,
Anderson had a strong voluntary manslaughter defense, and that
the jury “was tied up” between malice murder and voluntary man-
slaughter.
2. Anderson argues that he received ineffective assistance
of counsel in two respects. Both enumerations fail.
To establish a claim of ineffective assistance of counsel, a
defendant must prove both deficient performance by his counsel
and resulting prejudice. See Strickland v. Washington, 466 US
668, 687 (1984). To prove deficient performance, a defendant must
show that his attorney performed his duties in an objectively un-
reasonable way, considering all the circumstances and in the light
of prevailing professional norms. See id. at 687–88. The law rec-
ognizes a “strong presumption” that counsel performed reasona-
bly, which the defendant bears the burden of overcoming. Id. at
689. And “decisions regarding trial tactics and strategy may form
the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed
such a course.” Wells v. State, 295 Ga. 161, 164 (2014) (citation
omitted).
Even when a defendant has proved that his counsel’s per-
formance was constitutionally deficient, the defendant also must
prove resulting prejudice to prevail on a claim of ineffective assis-
tance of counsel. See Strickland, 466 US at 694. To do so, the de-
fendant must establish that but for his counsel’s unprofessional
errors, there is a “reasonable probability” that the outcome of the

8
proceeding would have been different. Id. “It is not enough ‘to
show that the errors had some conceivable effect on the outcome
of the proceeding.’” Harrington v. Richter, 562 US 86, 104 (2011)
(quoting Strickland, 466 US at 693). Rather, the defendant must
demonstrate a “reasonable probability” of a different result,
which is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 US at 694. “If either Strickland prong
is not met, this Court need not examine the other prong.” Palmer
v. State, 303 Ga. 810, 816 (2018). In all, the burden of proving a
claim of ineffective assistance of counsel is a heavy one. See Har-
rington, 562 US at 105.
(a) Anderson argues that his trial counsel rendered ineffec-
tive assistance when he failed to object to the provocation by
words alone jury instruction because that instruction prohibited
a finding of voluntary manslaughter if the jury found the malice
element of malice murder and therefore violated this Court’s de-
cision in Edge v. State, 261 Ga. 865 (1992).
This Court has previously held that
When the evidence presented in a criminal trial war-
rants a jury instruction on a lesser-included offense,
a trial court violates the rule against impermissible
sequential jury instructions if it instructs the jury
that it may consider the lesser offense only if it first
unanimously finds the defendant not guilty of the in-
dicted greater offense.

Reese v. State, 317 Ga. 189, 204 (2023) (cleaned up).
Here, Anderson’s argument focuses on the following sen-
tence of the jury instruction: “If you find the defendant acted from
such passion and not from malice [or] any spirit of revenge then
you would be authorized to return a verdict of guilty of voluntary

9
manslaughter.” In Anderson’s view, that instruction effectively
told the jury that it could not even consider voluntary manslaugh-
ter unless and until it found him not guilty of malice murder. But
the instruction had no such effect. Taken on its face, the instruc-
tion is most reasonably understood as directing the jury that it
could find Anderson guilty of voluntary manslaughter if it found
that he acted from “passion” and “not from malice.” That decision
for the jury — whether Anderson acted from passion or from mal-
ice — would naturally be a key part of the jury’s deliberations as
it decided whether he was guilty of either offense. The instruction
allowed the jury to consider the two mental states together. It did
not say that the jury first had to consider whether Anderson acted
out of malice, and then, only if it found that he did not, it could
consider whether he acted from passion. In other words, the in-
struction “did not expressly prohibit the jury from considering the
lesser included offenses until after it reached a unanimous verdict
on the indicted offenses.” Reese, 317 Ga. at 205 (cleaned up). Ac-
cordingly, Anderson has not shown that an improper sequential
charge was given in this case and any objection on that ground
would have been meritless. See id. (trial counsel not deficient for
failing to object to jury instruction on lesser-included offense of
murder where objection would have been meritless). Because An-
derson is unable to show deficient performance, this claim of in-
effective assistance fails.
(b) Anderson argues that his counsel was ineffective in fail-
ing to object to a jury instruction that created a beyond a reason-
able doubt standard for voluntary manslaughter’s provocation el-
ement.
Anderson’s argument focuses on the following jury instruc-
tion:
For voluntary manslaughter the State must prove

10
that the defendant caused the death of another per-
son under the circumstances that would otherwise
be murder and acted only because of a sudden violent
and irresistible passion that resulted from serious
provocation which was sufficient to excite such pas-
sion in a reasonable person. If you decide that
enough time passed between the provocation and the
killing for a reasonable person to have cooled off and
regained judgment then the killing is not voluntary
manslaughter.

(emphasis added). Anderson argues that because this pattern
charge on voluntary manslaughter was not altered in accordance
with the Council of Superior Court Judges of Georgia’s “bench
notes,” the unaltered jury instruction makes it the State’s burden
to establish the elements of voluntary manslaughter, and specifi-
cally the State’s burden to show beyond a reasonable doubt that
the defendant acted only because of provocation. Anderson con-
tends that his counsel should have objected to this charge and re-
quested the alternative language suggested by the bench note.
The suggested pattern jury instructions for voluntary man-
slaughter (2.10.41) contain a “bench note” from the Council of Su-
perior Court Judges of Georgia with the following suggestion:
“Bench Notes: Where voluntary manslaughter is charged as a
lesser-included offense of murder, consider modifying the first
sentence to require that ‘the evidence must prove’ rather than ‘the
State must prove,’ if evidence of passion/provocation has come
from the defense.” Neither Anderson nor the State requested any
alteration to the pattern jury instruction to conform with this
bench note. “[I]t is axiomatic that we do not assess jury charges
in isolation; rather, we consider them as a whole to determine

11
whether there is a reasonable likelihood the jury improperly ap-
plied a challenged instruction.” Locklear v. State, 317 Ga. 115, 122
(2023) (citation and punctuation omitted). It is also “axiomatic
that the jury charge is to be read as a whole, and that a single
[slip of the tongue], preceded and followed by correct instructions,
will not vitiate a thorough and otherwise correct instruction.”
Davenport v. State, 283 Ga. 171, 173 (2008) (citation and punctu-
ation omitted).
Here, even assuming that the unaltered pattern jury
charge resulted in “inartful and potentially confusing” language
by not replacing “the State must prove” with “the evidence must
prove” and that trial counsel was deficient for failing to object to
that language, the jury instructions, when read as a whole, were
otherwise correct, and the inclusion of “the State must prove” lan-
guage did not likely affect the jury’s verdict. Accordingly, there is
no prejudice resulting from counsel’s failure to object. Locklear,
317 Ga. at 122 (appellant failed to show that the verdict form that
included “the unnecessary insertion of the ‘beyond a reasonable
doubt’ standard with respect to the presence of mitigating circum-
stances” likely affected the outcome of the proceedings “in light of
the charges as a whole”). The record shows that, immediately
prior to the challenged instruction, the trial court correctly gave
a pattern jury instruction on voluntary manslaughter as an alter-
native to murder (2.10.40), and that the trial court also correctly
charged the jury on the State’s burden of proof, instructing the
jury that “[t]here is no burden upon the defendant whatsoever
and the burden never shifts to the defendant to introduce evi-
dence or to prove innocence.” Given the legal correctness of these
charges, we are not persuaded that counsel’s failure to object to
the charge as given based on the suggestion of the bench note
made the instructions misleading or otherwise affected the out-
come of the proceedings. See McNair v. State, 296 Ga. 181, 185

12
(2014) (trial counsel’s failure to object to charge on adultery as a
potential provocation for voluntary manslaughter was not defi-
cient or prejudicial because charges as a whole “did not mislead
the jury … nor hinder the jury’s ability to consider other mitigat-
ing factors in appellant’s defense”). 6
Finally, although Anderson argues that this case is the
“classic voluntary manslaughter case – catching your partner in
the act of cheating with another,” Anderson’s own testimony un-
dercuts that theory, as he testified that he was not angry with
Head and instead shot Roberts because he feared for his life.
Moreover, the “mere fact” that a romantic partner is allegedly
cheating is “not alone sufficient to excite sudden, violent, and ir-
resistible passion in a reasonable person,” such that the evidence
supporting Anderson’s voluntary manslaughter theory was weak
at best. See Kinlaw v. State, 317 Ga. 414, 423 (2023) (holding that
defendant was not entitled to jury instruction on voluntary man-
slaughter on the basis of sexual jealousy based on the “mere fact”
that defendant’s former wife was dating the victim) (citation and
punctuation omitted); Tepanca v. State, 297 Ga. 47, 50 (2015) (be-
cause defendant’s “sexual jealousy was based wholly on supposi-
tion” that his affair partner “had gone out with” the victim, the
evidence did not authorize a jury instruction on sexual jealousy
as provocation for voluntary manslaughter). Because counsel’s
failure to object to the jury instructions on the basis of the sug-

6 Anderson did not request a jury instruction on adultery as a potential
provocation for voluntary manslaughter and would not have been entitled to
such an instruction because he and Head were unmarried. See e.g., Kinlaw v.
State, 317 Ga. 414, 423 (2023) (“None of the parties were married, so no in-
struction regarding adultery as a provocation for voluntary manslaughter was
warranted.” (cleaned up)).

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gestion contained in the bench note did not likely affect the out-
come of these proceedings, this enumeration fails.
Judgment affirmed. All the Justices concur, except Warren,
P.J., not participating.

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