Allen v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 1, 2021
S21A0256. ALLEN v. THE STATE.
MCMILLIAN, Justice.
Alfredo Allen was convicted of malice murder and other related
crimes in connection with the stabbing death of Erin McKinney and
the aggravated battery of Candice McKinney. 1 He now appeals and
1 The crimes occurred on November 9, 2015. On February 3, 2016, a
Gwinnett County grand jury indicted Allen on charges of malice murder of Erin
(Count 1), felony murder predicated on aggravated assault of Erin (Count 2),
aggravated assault of Erin (Count 3), aggravated assault of Candice (Count 4),
aggravated battery of Candice (Count 5), possession of a firearm or knife
during the commission of a felony based on aggravated assault (Count 6), three
counts of cruelty to children in the third degree based on felony murder (Counts
7-9), and three counts of cruelty to children in the third degree based on
aggravated assault (Counts 10-12). At a trial held from October 16 to October
23, 2017, the jury found Allen guilty of Counts 1-6 and acquitted him of Counts
7-12. The trial court sentenced Allen to serve life in prison without the
possibility of parole for malice murder (Count 1), twenty years for aggravated
battery (Count 5), and five years for possession of a firearm or knife during the
commission of a felony (Count 6), with the sentences to run consecutively.
Count 3 merged into Count 1, and Count 4 merged into Count 5. Although the
trial court purported to merge Count 2 into Count 1, the felony murder count
was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369,
371-72 (4) (434 SE2d 479) (1993). Allen filed a motion for new trial on October
challenges the sufficiency of the evidence as to his convictions for
malice murder and felony murder. For the reasons that follow, we
affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence showed that Allen and Candice began dating in 2012 and
had a child together in 2013. They lived together in an apartment in
Gwinnett County with their child and Candice’s child from a
previous relationship. Candice testified that her relationship with
Allen began to deteriorate because Allen continually accused her of
cheating on him. Allen also became physically violent, and Candice
called the police several times during their fights before eventually
ending the relationship in 2014. However, Allen continued to pursue
a relationship with Candice and stayed at her apartment from time
to time. In September 2015, Candice’s sister, Erin, and Erin’s two-
year-old son moved in with Candice and her two children. In October
24, 2017. Following a hearing in October 2019, the trial court denied the motion
for new trial on October 23, 2019. Allen timely appealed, and the case was
docketed to this Court’s term beginning in December 2020 and thereafter
submitted for a decision on the briefs.
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2015, Allen became enraged during a fight and threatened to kill
Candice. On November 8, 2015, Candice told Allen that he would
have to go to a shelter if he had nowhere else to go. Allen said that
he understood, and Candice agreed to let him stay one last night
before going to the shelter the following day.
Candice went to bed around 1:30 on the morning of November
9 and was in a deep sleep when Allen finally arrived at her
apartment. After letting Allen inside, Candice told him she did not
want to talk because she had to go to work in the morning and went
back to sleep. She was awoken by the sound of Erin crying and
calling her name. When Candice went to her bedroom door, Erin ran
into her arms, covered in blood. Candice saw Allen stabbing Erin as
Erin ran. Candice tried to shield Erin with her body, but Allen then
stabbed both of them. Candice fought with Allen until he eventually
let go of the knife. Candice grabbed the knife, which was one of the
largest knives from a set in her kitchen, and ran outside to find help
until she collapsed from her injuries.
Gwinnett County Police Department officers responded to a
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person-stabbed call and located Candice in an outside stairwell. She
had multiple stab wounds, and officers administered first aid until
EMS arrived. 2 Candice indicated that her sister and children were
still in the apartment, and officers found three young children in a
locked bedroom where Erin was covered by a blood-soaked blanket.
Erin appeared to have multiple traumatic wounds, and EMS
determined on scene that she had no signs of life. The State’s
medical examiner testified that Erin received 15 stab wounds over
her upper body and head. The most rapidly fatal wound fractured
her fourth rib on the right side and cut into the middle lobe of her
right lung. Erin also had multiple defensive wounds on her arms and
hands. The wounds were consistent with having been inflicted by
the knife that officers recovered at the scene.
Officers apprehended Allen as he was driving away from the
apartment, and he later agreed to be interviewed after waiving his
2 A trauma surgeon testified that Candice suffered six lacerations that
required suturing in addition to other injuries.
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rights under Miranda. 3 During the recorded interview, which was
played for the jury at trial, Allen stated that he was arguing with
Erin because he thought that Erin was instigating problems
between Candice and him. He became so angry, he “just lost it” and
picked up a knife and went into Erin’s bedroom and stabbed her. He
never claimed that Erin had attacked him first or started the
argument with him. The only injury identified on Allen was a small
cut on his right pinky finger.
Allen testified in his own defense at trial and gave a different
version of events. He explained that he became upset on the
afternoon before the stabbing when he learned that Candice had
purchased a new phone. So when he went to her apartment late that
night, he was already angry, even though they were not fighting at
the time. He stayed in Candice’s bed for about an hour while she
slept before he decided to get up and make his lunch for work the
next day. When Erin walked out of her bedroom, he accused her of
3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
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hiding things for Candice and told her that he would not help her
with her son anymore. Erin told him she did not want to “hear that
sh*t” and that he deserved to have Candice cheat on him with
another man. At that point, Allen became “tense” and called Erin a
“b*tch.” Erin said, “Who are you calling a b*tch?” and hit him in the
face. He pushed Erin against the wall, but she continued hitting him
and spat on him. Allen stated that “at that moment we started to
struggle and the knife appeared.” He did not remember getting the
knife, and once he realized that he had stabbed Erin, he panicked
and tried to run out the front door. Candice stopped him, however,
and Erin came after him, still hitting him. He did not recall stabbing
Candice.
Allen asserts that the evidence was insufficient to support his
convictions for malice murder and felony murder because he and
Erin had never had any altercations before Erin punched and spat
on him that morning. 4 Thus, Allen argues, the evidence showed that
4 Allen does not challenge the sufficiency of the evidence to support his
convictions for the aggravated battery of Candice or possession of a knife
6
he acted in a sudden fit of passion rather than with the criminal
intent to commit assault or murder and was therefore guilty only of
the lesser offense of voluntary manslaughter. 5
When evaluating the sufficiency of the evidence to support a
conviction, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted). On
during the commission of a felony. Because this case was docketed to the term
beginning in December 2020, we no longer review the sufficiency of the
evidence sua sponte in non-death penalty cases, see Davenport v. State, 309
Ga. 385, 399 (4) (846 SE2d 83) (2020), and we decline to exercise our discretion
to review the sufficiency of these convictions.
5 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.
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appeal, “this Court does not reweigh the evidence or resolve
conflicting testimony.” Mosby v. State, 300 Ga. 450, 452 (1) (796
SE2d 277) (2017).
We first note that because the felony murder count was vacated
by operation of law, it is not necessary for us to consider whether the
evidence was sufficient to support that count. See Anderson v. State,
299 Ga. 193, 196 (1) n.4 (787 SE2d 202) (2016); OCGA § 16-1-3 (4).
Turning to Allen’s malice murder conviction, OCGA § 16-5-1 (a)
provides that “[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 defined
as “that deliberate intention unlawfully to take the life of another
human being which is manifested by external circumstances capable
of proof.” OCGA § 16-5-1 (b). And “[m]alice shall be implied where
no considerable provocation appears and where all the
circumstances of the killing show an abandoned and malignant
heart.” Id. Contrary to Allen’s assertions, “[t]here is no requirement
of premeditation or a preconceived intention to kill; malice
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aforethought can be formed instantly.” McGuire v. State, 307 Ga.
500, 504 (837 SE2d 339) (2019) (citation and punctuation omitted).
See also Benton v. State, 305 Ga. 242, 244 (1) (a) (824 SE2d 322)
(2019) (“The malice necessary to establish malice murder may be
formed in an instant, as long as it is present at the time of the
killing.”).
Here, the trial court charged the jury on voluntary
manslaughter as a lesser offense of malice murder, and it was within
the province of the jury to determine, from all the facts and
circumstances, whether the killing was intentional and malicious or
whether there was such a serious provocation as would be sufficient
to excite a sudden, violent, and irresistible passion in a reasonable
person, thus reducing the crime to voluntary manslaughter. 6 See
McGuire, 307 Ga. at 504; OCGA § 16-5-2 (a). Despite Allen’s claims
that Erin punched him and continued to hit him, a responding
officer testified that he saw no injuries on Allen other than a small
6 Because neither party has raised the issue, we express no opinion on
whether the evidence required the trial court to give a voluntary manslaughter
instruction.
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cut on his finger. Moreover, the jury also heard the version of events
Allen provided to investigators shortly after the killing, in which he
admitted arguing with Erin, picking up a knife, and walking to
Erin’s room to stab her. Candice also testified that Allen continued
to chase and stab Erin as Erin attempted to escape from him. The
jury was authorized, after assessing the weight and credibility of the
evidence presented, to find Allen guilty of malice murder. See Cooper
v. State, 306 Ga. 547, 549 (832 SE2d 382) (2019) (evidence sufficient
to convict defendant of malice murder where defendant, during a
heated argument, deliberately plunged the blade of a large kitchen
knife into the victim’s chest); Hornbuckle v. State, 300 Ga. 750, 751-
52 (1) (797 SE2d 113) (2017) (evidence sufficient to sustain
defendant’s malice murder conviction, despite defendant’s
testimony that the victim attacked her first, where evidence
otherwise showed the victim had defensive knife wounds in addition
to a fatal chest wound and that defendant had no injuries except
bruises on her right arm).
Judgment affirmed. All the Justices concur.
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