In the Supreme Court of Georgia



                                                Decided: November 3, 2014


                        S14A0910. LYNN v. THE STATE.


      BLACKWELL, Justice.

      Appellant James Morris Lynn, Jr. was tried by a Barrow County jury and

convicted of the murder of Tonya Lynn, his wife of sixteen years. At trial,

Appellant did not dispute that he killed Tonya, but he claimed that her killing

was only voluntary manslaughter, arguing that it was provoked by, among other

things, her admission that she recently had been unfaithful. The trial court

permitted Appellant to testify about this admission, but it refused to allow

additional evidence of her recent infidelity, including the testimony of two men

with whom she allegedly was having extramarital affairs around the time of her

death. On appeal, Appellant contends that the trial court erred when it

disallowed this additional evidence as irrelevant. We agree and reverse his

conviction.1


      1
        Tonya was killed in July 2011. Three months later, Appellant was indicted and
charged with malice murder, felony murder, and aggravated assault. His trial began on June
       1. Viewed in the light most favorable to the verdict, the evidence shows

that — late on the evening of July 26, 2011 or in the early hours of the following

day — Appellant and Tonya argued in their Winder home, and at the conclusion

of their argument, Appellant beat Tonya with a baseball bat. Tonya died as a

result of the beating, and Appellant hid her body in a well. Eventually,

Appellant confessed these things to investigators, and he directed them to the

well, where they found Tonya’s body. When Appellant testified at trial, he

acknowledged again that he had beaten Tonya to death. Appellant does not

dispute that the evidence is legally sufficient to sustain his conviction, but

consistent with our usual practice in murder cases, we have considered the

sufficiency of the evidence. Upon our review of the record, we conclude that the

evidence presented at trial was more than sufficient to authorize a rational trier

of fact to find beyond a reasonable doubt that Appellant was guilty of Tonya’s



11, 2012, and the jury returned its verdict on June 14, finding Appellant guilty on all counts.
Upon the verdict, Appellant was convicted of malice murder — the verdict as to felony
murder was vacated by operation of law, and the aggravated assault merged with the malice
murder, see Malcolm v. State, 263 Ga. 369, 371-374 (4), (5) (434 SE2d 479) (1993) — and
sentenced to a term of imprisonment for life without the possibility of parole. Appellant
timely filed a motion for new trial on July 13, 2012. The trial court denied his motion on
November 26, 2013, and Appellant timely filed a notice of appeal that same day. The case
was docketed in this Court for the April 2014 term and submitted for decision on the briefs.

                                              2
murder. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979).

      2. Having acknowledged that he killed Tonya, Appellant argued at trial

that the killing was “the result of a sudden, violent, and irresistible passion

resulting from serious provocation sufficient to excite such passion in a

reasonable person,” and for that reason, it amounted only to voluntary

manslaughter. See OCGA § 16-5-2 (a). In support of this claim, Appellant relied

mostly on his own account of the argument that preceded the killing, as reflected

in his testimony at trial, as well as pretrial statements that he had made to

investigators. By that account, Tonya wanted a divorce, and she and Appellant

had been arguing about it for several days. When Appellant came home on July

26, he saw that Tonya had packed her bags, and he saw her using a mobile

phone that he did not recognize. Appellant retired to their bedroom for the

evening, where he fell asleep. He was awakened, however, by Tonya, who

resumed their argument. According to Appellant, Tonya declared her intention

to leave and take their children, said that Appellant could not provide adequately

for her, characterized Appellant as a horrible person and a terrible father, and

insisted that he never again would “see her naked.” Tonya then swung a baseball

                                        3
bat at Appellant, he said, which he snatched away and used to beat her. On these

points, the testimony given by Appellant at trial was generally consistent with

his statements before trial to investigators.

      In his trial testimony, however, Appellant added some other details that

he had not previously shared with investigators. In the course of the argument

that preceded the killing, Appellant said at trial, Tonya also disclosed that she

recently had been unfaithful to him and that she not only was leaving him, but

was leaving him for other men. Appellant already knew, he admitted, that Tonya

had been unfaithful earlier in their marriage, and in fact, she had left him for

awhile to live with her “boyfriend,” David. But Appellant and Tonya had

reconciled, and she had promised to keep away from David and to stay faithful

to Appellant. Nevertheless, according to Appellant, just before he killed Tonya,

she said that she had resumed her affair with David and was leaving Appellant

again to live with David. Appellant testified that Tonya admitted that she also

was having an affair with a coworker, Todd. And he added that Tonya spoke of

her intent to continue to see both David and Todd, as well as her inability to be

satisfied by only one man. On these points, the prosecuting attorney challenged

the testimony given by Appellant at trial, pointing out that Appellant had said

                                        4
nothing to investigators about a recent disclosure of infidelity, and implying

strongly that Appellant had fabricated entirely this part of his testimony.

      After he testified, Appellant sought to present additional evidence that

Tonya was, in fact, having extramarital affairs with David and Todd around the

time of her death. In particular, Appellant sought to elicit testimony from David

and Todd about their relationships with Tonya, and he sought to elicit testimony

from her supervisor about Tonya holding herself out as “single” at work and

receiving flowers from men. Appellant also sought to present evidence that

forensic examiners had found Todd’s semen on Tonya’s body, indicating that

she had been intimate with Todd only a short time before her death. The trial

court, however, disallowed this evidence, ruling that it was irrelevant. Appellant

contends that the refusal of this evidence was error, and we agree.

      For his claim at trial that the killing of Tonya was only voluntary

manslaughter, Appellant asserted that he was provoked to kill her by her assault

upon him with the bat, as well as the things she said in the course of their

argument. As for the assault, it certainly could form a basis for a finding of

provocation. See Cash v. State, 258 Ga. 460, 462 (3) (368 SE2d 756) (1988). As

for the things that Tonya said to Appellant, words alone do not amount to the

                                        5
sort of provocation necessary to reduce a murder to manslaughter. See Brown

v. State, 294 Ga. 677, 681 (3) (755 SE2d 699) (2014). See also Gresham v.

State, 289 Ga. 103, 104 (2) (709 SE2d 780) (2011); Todd v. State, 274 Ga. 98,

101 (4) (549 SE2d 116) (2001); Mack v. State, 272 Ga. 415, 417 (2) (529 SE2d

132) (2000). But words that disclose the adulterous conduct of a spouse are not

just words, at least to the extent that they cause the accused to genuinely and

reasonably believe that his spouse has been unfaithful. Indeed, in a number of

cases, we have held that the discovery that a spouse has been unfaithful —

whether the accused sees evidence of the infidelity or hears about it from the

unfaithful spouse or another — can amount to sufficient provocation. See, e.g.,

Goforth v. State, 271 Ga. 700, 701 (1) (523 SE2d868) (1999); Strickland v.

State, 257 Ga. 230, 231-232 (2) (357 SE2d 85) (1987); Brooks v. State, 249 Ga.

583, 585 (292 SE2d 694) (1982).

      If the jury had accepted Appellant’s testimony about Tonya confessing her

renewed and recent infidelity just before he killed her, that testimony might

properly have formed a basis for the jury to find that the killing only amounted

to voluntary manslaughter. Whether that testimony was credible, however, was

hotly disputed, the prosecuting attorney suggesting on cross-examination that

                                       6
it was fabricated. As a result, whether Tonya, in fact, told Appellant that she was

having extramarital affairs with David and Todd just before Appellant killed her

appears to have been an important and disputed issue at trial. Proof of any

circumstance that would tend to make it more or less likely that Tonya actually

confessed recent infidelity just before Appellant killed her would bear upon this

issue and would be relevant. See McGee v. State, 267 Ga. 560, 565 (4) (480

SE2d 577) (1997) (“[a]ny evidence is relevant which logically tends to prove or

to disprove a material fact which is at issue in the case”).2

      At least in the circumstances of this case, we think that proof that Tonya

really was having affairs with David and Todd would tend to make it more

likely that she, just as Appellant testified, told him of those affairs in the minutes

before he killed her. Such proof certainly is not dispositive of the question. One

having an adulterous affair might choose, of course, not to reveal it, even when

leaving her spouse. Likewise, one never having had an adulterous affair, we

suppose, might lie about it in the heat of an argument, if only to hurt or provoke

her spouse. And no doubt, other proof may be more probative of whether Tonya

      2
         Because this case was tried before January 1, 2013, our former Evidence Code
applied at the trial. In the new Evidence Code, the provisions concerning relevance can be
found at OCGA § 24-4-401 et seq.

                                            7
said the things that Appellant attributed to her in his testimony, such as the

consistency of his testimony with his earlier statements to investigators. But all

that is for a jury to resolve. See Freeman v. State, 158 Ga. 369, 371 (123 SE

126) (1924) (it is for the jury to determine what facts are proven, to weigh the

evidence, and to decide if defendant is guilty of murder or voluntary

manslaughter). If Tonya was, in fact, engaged in adulterous affairs with David

and Todd around the time of her death, that arguably makes it somewhat more

likely that Tonya, in fact, spoke to Appellant of those affairs. As such, proof of

the recent affairs with David and Todd is relevant in this case, and the trial court

erred when it concluded otherwise.3


       3
         Appellant cites Strickland, 257 Ga. at 230, a case in which this Court held that it was
error for a trial court to charge the jury that proof of the victim’s infidelity “should be
considered not for the purpose of determining whether the victim had sexual relations with
others but solely for the purpose of determining whether she had recounted her adulterous
activity as the defendant claimed just before he shot her.” 257 Ga. at 231 (2). That charge
was error, this Court explained, because whether the victim had an adulterous affair — not
just whether she said she had such an affair — was “not only relevant, but critical to the
voluntary manslaughter claim.” Id. at 232 (2). The idea that the culpability of an accused
depends not so much on what he has actually seen and heard and what he, as a result,
genuinely and reasonably believes — but instead depends on the truth of what he has heard,
even if that truth is unknown and perhaps unknowable to him — strikes some of us as a bit
strange, and indeed, we have found no other Georgia precedent that supports that notion. We
need not decide in this case, however, whether Strickland is correct on that point. Even if
Strickland is wrong, the evidence about which Appellant in this case complains still would
be relevant to the indisputably material question of whether Tonya, in fact, disclosed recent
adultery to Appellant.

                                               8
      The State contends that Appellant could not possibly have been provoked

to “a sudden, violent, and irresistible passion” by any disclosure of infidelity by

Tonya, inasmuch as he admitted that he had known for a long time that Tonya

had been unfaithful to him on several occasions earlier in the marriage, and for

this reason, the State argues, the exclusion of evidence about her adultery was

not error. No doubt, “unless a defendant can show that he killed his [spouse]

under a violent, sudden impulse of passion due to his [spouse’s] adultery,”

evidence of such adultery is “irrelevant and inadmissible.” Powell v. State, 286

Ga. 14, 15 (2) (685 SE2d 79) (2009). But even if Appellant was aware of earlier

infidelities, there is no evidence that Appellant knew, before the argument that

preceded his killing of Tonya, that she had resumed an affair with David, even

after she and Appellant had reconciled. And there is no evidence that Appellant

knew anything at all about an affair with Todd prior to that argument. The

contention of the State is a perfectly reasonable one to put to a jury, but it is just

that, an argument for the jury. We cannot say as a matter of law that Appellant,

having been aware for some time of long past infidelities, could not reasonably

be provoked by the fresh disclosure of new infidelities so as to reduce the killing

of his wife to voluntary manslaughter.

                                          9
      We have considered whether the erroneous refusal to admit evidence of

infidelity by Tonya — beyond the testimony of Appellant, that is — might have

been harmless, but we cannot conclude that it was. As we have explained,

Appellant offered no defense at trial and claimed only that the killing was

voluntary manslaughter and not murder.4 A basis for that claim was the notion

that Appellant was provoked to kill Tonya by her disclosure of recent adultery.

Whether Tonya said the things about adultery that Appellant attributed to her

was a critical issue at trial. It was a disputed issue, insofar as the State suggested

that Appellant had fabricated his testimony on that point. And his challenged

testimony was the only evidence that the trial court allowed on this important

and disputed question. We cannot say that the erroneous refusal to admit any

other evidence bearing upon the question was harmless. For these reasons, we

reverse the judgment of conviction.

      Judgment reversed. All the Justices concur.




      4
        A claim that a killing is only voluntary manslaughter is not, strictly speaking, a
“defense” to a murder charge. See Wyman v. State, 278 Ga. 339, 340-341 (3) (602 SE2d
619) (2004).

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