GA Supreme Court Alters Jury Instructions for Defendants Accused of Felony Murder

Now, instead of requiring trial courts to instruct juries that they are precluded from returning a guilty verdict for felony murder if they find the defendant acted with provocation, jurors must only consider whether provocation mitigated the defendant’s acts.

Frederick Terry was convicted of felony murder and possessing a firearm during the commission of a felony. Two witnesses testified that they heard Terry and the victim arguing outside Terry’s apartment in the Fulton County apartment complex where they both lived. The witnesses then claimed they saw Terry enter his own apartment, come back out with a gun, and shoot the victim several times. Terry testified that he and the victim were arguing about a transaction that Terry felt was unfair. Terry said the victim threatened him, pushed him, and followed him when he entered his apartment. Terry also testified that he retrieved his gun as the two men continued to argue.

The jury found Terry guilty of felony murder and possessing a firearm during the commission of a felony, and he was sentenced to life in prison.

Terry appealed his conviction, taking issue with the jury instructions given by the trial court. As trial counsel did not object to these instructions at trial, the Georgia Supreme Court reviewed them for “plain error” only. In order to reverse the convictions, the Court was required to find that the instructions contained an “obvious defect” that likely affected the outcome of the case and seriously affected the fairness of the proceedings as a whole.

Terry contended that the instructions to the jury contained confusing language regarding the concept of “provocation” that would justify a conviction for the lesser offense of voluntary manslaughter. In its decision, the Georgia Supreme Court overruled Russell v. State, 265 Ga. 203, 455 S.E.2d 34 (1995), which held that trial courts must advise jurors they may not convict defendants of felony murder if they find that the defendant acted with provocation. The Court held that trial courts are now only required to instruct the jury that they must merely consider whether provocation mitigated the killing.

For nearly 20 years, the Russell case ensured that jurors deliberating a felony murder charge would be instructed that if they found sufficient provocation, they would only be authorized to convict the defendant of the lesser offense of voluntary manslaughter. As a result of the Supreme Court’s decision in Terry, trial courts are no longer required to expressly instruct the jury that a finding of provocation precludes a conviction for felony murder. So, without such an instruction, a jury could find that the defendant acted with sufficient provocation but still convict him of felony murder. The result is a dilution of the concept of “provocation” making it much more difficult for criminal defendants in Georgia charged with murder to persuade a jury to convict on the lesser offense of voluntary manslaughter.