Annunziata v. State ( 2023 )

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
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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.
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
completed, this case was re-docketed to this Court’s April 2023 term and
submitted for a decision on the briefs.
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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
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
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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
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
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it behind his back under his jacket. 2 Appellant then came running
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: “There’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,
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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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
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
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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
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.
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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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
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) (citation and
punctuation omitted). 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-
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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 (1), 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). “This is an objective standard,
and we must evaluate the alleged provocation with respect to its
effect on a reasonable person, putting aside any peculiar response
Appellant may have had.” Orr v. State, 312 Ga. 317, 321 (862 SE2d
513) (2021) (citation and punctuation omitted). Further, evidence of
a “violent exchange” or the exchange of angry statements do not
amount to the serious provocation within the meaning of OCGA
§ 16-5-2 (a). Jones v. State, 314 Ga. 466, 470 (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
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manslaughter charge). Even a physical confrontation between two
individuals does not necessarily provide the slight evidence
necessary to require a voluntary manslaughter 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 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
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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
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 “the 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.
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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
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) (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
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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 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.
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