FINAL COPY
294 Ga. 677
                     S13A1543. BROWN v. THE STATE.


       HINES, Presiding Justice.

       Kenneth Brown appeals from his convictions and sentences for the crimes

of malice murder, aggravated assault, and giving false information to a law

enforcement officer, all in connection with the axe slaying of Charlotte Grant.

For the reasons that follow, we affirm.1

       Construed to support the verdicts, the evidence showed that Brown and

Grant were in a romantic relationship and lived together; Grant’s two adult

children, Keith and Christina Medley, also lived in the home. However, Grant

remained married to another man. On December 24, 2010, Brown discovered

that Grant had spoken by cell phone to her estranged husband, who lived out of



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         Grant was killed on December 24, 2010. On April 29, 2011, a Lowndes County grand jury
indicted Brown for the malice murder of Grant, the aggravated assault of Keith Medley, the crime
of giving false information to a law enforcement officer, and for being a “recidivist.” Brown was
tried before a jury January 9-11, 2012. He was found guilty of malice murder, aggravated assault,
and giving false information to a law enforcement officer; the “recidivist” charge was not presented
to the jury. On January 17, 2012, Brown was sentenced to life in prison for malice murder, and
consecutive terms of 20 years and 12 months in prison for aggravated assault and giving false
information to a law enforcement officer. Brown moved for a new trial on February 3, 2012; he
amended the motion on February 8, 2012, again on October 12, 2012, and finally on October 15,
2012. On October 30, 2012, the motion, as amended, was denied. On November 15, 2012, Brown
filed a notice of appeal; the appeal was docketed in this Court for the September 2013 term and
submitted for decision on the briefs.
state. Brown and Grant argued, and Grant asked her son Keith Medley

(“Medley”) to get Brown’s sister, Annie Pride (“Pride”), from next door, in

hopes that Pride could convince Brown to leave. After Pride arrived, the

argument continued, with Pride and Medley joining it, and Medley pushed

Brown on the shoulder; at no time did Grant and Brown have physical contact.

Brown left the house and returned with an axe, partially concealed behind his

back. Brown then swung the axe repeatedly at Grant and Medley, using both

hands; he did not speak while doing this. Medley and Grant attempted to retreat

to the rear of the house where a door led outside, but Brown struck Grant

multiple times with the axe. Grant fell limp, and Medley laid her in the doorway

of the back door to the house and then ran to a nearby house to call 911. Pride

summoned her husband Leon, who discovered Brown near the back door

standing next to Grant with what appeared to be a stick; he told Brown to leave,

and later realized that the stick was an axe.

      Brown left the axe in the yard of an adjacent house; the attack left blood

on Brown’s clothing. Grant was fatally wounded, receiving at least four axe

wounds to her skull and another axe wound to her body. Shortly after the

killing, Brown was found by a police officer two blocks away. He gave the

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officer a false name and birth date and was arrested and taken to a police station.

      At the police station, Brown first told an investigating detective that he did

not wield the axe, but that Medley had procured the axe in the rear of the house,

began swinging it at Brown, and Grant was injured thereby. When confronted

with information the detective had gained through interviews with witnesses,

Brown attempted to maintain his first version of events, then admitted that he

had obtained the axe from outside the front door of the house, but claimed he

did so because he was concerned that Medley might acquire a knife or other

weapon from the rear of the house. Brown further stated that: even though

Medley pushed him, it did not injure him; Medley displayed no other physical

aggression toward him; and, he never saw Medley with a weapon. Brown also

said that he argued with Grant because he provided the money for the

household, and he did not want her speaking with her husband. He also stated

that he was angry that Grant said that she would return to her husband. Brown

further stated that he did not intend to harm Grant, but that when he was

swinging the axe, he “possibly” struck her. The detective testified that Brown

appeared to be angry that Medley had pushed him.

      1. The evidence authorized the jury to find Brown guilty beyond a

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reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,

443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. Seven months before trial, Brown moved to have incriminating

statements he made during a custodial interview suppressed, contending that

they were made in violation of Miranda v. Arizona, 384 U. S. 436 (86 SCt

1602, 16 LE2d 694) (1966); the motion also asserted that the incriminating

statements “violate[d]” Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d

908) (1964). The motion was addressed, and denied, by a different judge than

the one who presided at trial.2 At trial, before opening statements, Brown’s

attorney said, “I think that the ruling by that judge is not appropriate, and does

not carry the weight,” and requested that another Jackson v. Denno hearing be

conducted before the State introduced evidence of any such incriminating

statements. This was denied, as was Brown’s similar motion made when the law

enforcement officer to whom the statements were made was called to testify.

       Brown contends that the order denying the motion to suppress is infirm

because it does not explicitly state that the statements were made voluntarily.

       2
         Although no transcript of the hearing on the motion appears in the record, during argument
before the trial court, the State declared, without contradiction, that the hearing was held on August
15, 2011.

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First, we note that in this case there is more than merely an implicit denial of the

motion to suppress on the authority of Jackson v. Denno; the trial court

explicitly denied the motion. Compare Colton v. State, 292 Ga. 509, 513 (3)

(739 SE2d 380) (2013); Hicks v. State, 255 Ga. 503, 503-504 (1) (340 SE2d

604) (1986). Nor is this a case in which the record reveals that the trial court

erroneously believed that the question of whether the statements were freely and

voluntarily made was simply for the jury. Compare Parker v. State, 255 Ga.

167, 168 (2) (336 SE2d 242) (1985).

      In any event, this Court has previously noted

      our preference for trial courts to make findings of fact, if the
      evidence warrants them, substantially as follows: I find from a
      preponderance of the evidence that the defendant was advised of
      each of his Miranda rights, that he understood them, that he
      voluntarily waived them, and that he thereafter gave his statement
      freely and voluntarily without any hope of benefit or fear of injury.
      (If the defendant denies having been advised of any one of his
      Miranda rights or says that he requested an attorney, specific
      findings as to the point in controversy should also be made.)

Bryant v. State, 268 Ga. 664, 666 (6) (492 SE2d 868) (1997). But, the order

denying Brown’s motion did not follow this recommended procedure.

“Generally, such a failure would require a remand for clarification. See Parker

v. State, 255 Ga. [at] 168 (1).” Id. at 667. However, Brown does not assert to

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this Court that there is evidence that would render the statements inadmissible

for any reason, resting his argument solely on the procedural ground, and the

record does not reveal such evidence. Therefore, we will not remand this case.

Id. “However, we would remind the trial courts of this state of our preference

for findings of fact which comport with the form suggested in Berry v. State,

[254 Ga. 101, 104-105 (1), n. 6 (326 SE2d 748) (1985)].” Id. See also Nelson

v. State, 208 Ga. App. 686, 687 (2) (431 SE2d 464) (1993).

      3. Brown submitted a written request to charge the jury the law regarding

voluntary manslaughter as a lesser included offense of malice murder, but the

trial court did not give the charge. See OCGA § 16-5-2 (a).3 Brown contends

that failing to give the instruction was error. “It is a question of law whether

there is any evidence to support a finding that the defendant acted ‘solely as the

result of a sudden, violent, and irresistible passion resulting from serious



      3
        OCGA § 16-5-2 (a) reads:
      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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provocation sufficient to excite such passion in a reasonable person. . . .’ OCGA

§ 16-5-2 (a). [Cit.]” Paul v. State, 274 Ga. 601, 605 (3) (b) (555 SE2d 716)

(2001).

       First, there was no basis for giving the requested instruction based upon

physical provocation. Pretermitting whether physical or other provocation on

Medley’s part could support an instruction on voluntary manslaughter as to the

killing of Grant, see Howard v. State, 288 Ga. 741, 746 (4) (707 SE2d 80)

(2011), “[t]his Court has repeatedly held that neither fear that someone is going

to pull a gun nor fighting prior to a homicide are types of provocation

demanding a voluntary manslaughter charge. [Cits.]” Funes v. State, 289 Ga.

793, 794 (2) (716 SE2d 183) (2011). Further, “[t]his Court has repeatedly held

. . . that ‘acting out of fear is not the same as acting in the heat of a sudden

irresistible passion’ as required by OCGA § 16-5-2 (a). [Cits.]” Baugh v. State,

293 Ga. 52, 55 (3) (743 SE2d 407) (2013).4

       Nor does the mere fact that Brown and Grant argued before he left the

house, retrieved the axe, and began his attack support an instruction on


       4
        The trial court instructed the jury on the law regarding defense of self as it pertained to the
charge of aggravated assault against Medley.

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voluntary manslaughter.

      As a matter of law, angry statements alone ordinarily do not amount
      to “serious provocation” within the meaning of OCGA § 16-5-2 (a).
      [Cit.] “To put it simply, words alone [generally] are not sufficient
      provocation to excite the passion necessary to give rise to voluntary
      manslaughter.” [Cit.]

Merritt v. State, 292 Ga. 327, 331 (3) (737 SE2d 673) (2013). Brown suggests

that the argument coupled with sexual jealousy on his part constituted

provocation sufficient to authorize the jury instruction. Although it has been

held that adulterous conduct together with words can support an instruction on

voluntary manslaughter, see Davis v. State, 290 Ga. 421, 423-424 (2) (721

SE2d 886) (2012), there is no evidence that Grant had recently engaged in any

sexual relations with her out-of-state husband, or that she taunted Brown with

such conduct. Compare Strickland v. State, 257 Ga. 230, 231-232 (2) (357 SE2d

85) (1987); Brooks v. State, 249 Ga. 583, 586 (292 SE2d 694) (1982). The trial

court did not err in refusing to give the requested instruction on voluntary

manslaughter.

      Judgments affirmed. All the Justices concur.




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                          Decided March 3, 2014.

     Murder. Lowndes Superior Court. Before Judge Horkan.

     Jon W. McClure, for appellant.

     J. David Miller, District Attorney, Tracy K. Chapman, Assistant District

Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Ryan A. Kolb, Assistant Attorney General, for appellee.




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