Flood v. State

In the Supreme Court of Georgia

Decided: June 21, 2021

S21A0025. FLOOD v. THE STATE.

LAGRUA, Justice.

Appellant Annette Collins Flood was convicted of felony

murder and a knife offense in connection with the stabbing death of

Bobby Burns, her longtime boyfriend. Appellant contends that the

evidence was insufficient to support her conviction for felony

murder. She also raises three separate enumerations of error

regarding the jury instructions provided at her trial and contends

that these instructional errors combined to prejudice her. Finally,

Appellant contends that the State improperly placed her character

at issue during closing argument. Appellant seeks a new trial, but

for the reasons stated below, we affirm. 1

1The crimes occurred on April 21, 2016. On July 27, 2017, a Chatham
County grand jury indicted Appellant for malice murder, felony murder,
 1. (a) Construed in the light most favorable to the jury’s

verdicts, the evidence presented at trial showed that Appellant and

Burns had been seeing each other on and off for about 18 years. At

the time of the crimes, the two had been living together for a little

over a year in a boarding house where the tenants rented individual

bedrooms and had shared access to the bathroom and common

areas. Burns and Appellant shared a bedroom on the second level

of the boarding house that contained a mini-refrigerator and other

kitchen items, including utensils and kitchen knives.

Appellant had a history of being controlling in the relationship

and had physically struck Burns on more than one occasion. In the

months before the crimes, Burns and Appellant had been getting

aggravated assault, and possession of a knife during the commission of a
felony. At a trial in July 2018, the jury found Appellant guilty of all charges
except malice murder. The trial court then sentenced Appellant to life
imprisonment for felony murder and five consecutive years for the knife
possession charge. The aggravated assault charge merged for sentencing
purposes. Appellant filed a motion for new trial on August 16, 2018, which she
amended on May 30, 2019, and August 13, 2019. Following a hearing on
August 13, 2019, the trial court denied the amended motion for new trial on
June 9, 2020. Appellant filed a timely notice of appeal on June 18, 2020, and
the case was docketed to this Court’s term beginning in December 2020 and
submitted for a decision on the briefs.
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into loud verbal arguments in their bedroom that were overheard by

other tenants. On January 26, 2016, three months prior to Burns’s

stabbing, Burns allegedly prevented Appellant from leaving the

bedroom by blocking the door. Appellant called the police, who

concluded that the incident was a mere verbal altercation. In her

statement to police after the January incident, Appellant stated that

Burns had never put his hands on her. Other witnesses testified

that the two often fought about Burns’s drug and alcohol use and

Appellant’s infidelity. According to Appellant, animosity in the

relationship had escalated to the point that Appellant wanted to

leave Burns.

On the day of the stabbing, Appellant was with her infant

grandchild, playing cards at the boarding house with another

tenant, Terry Moore. Burns returned from work around 5:00 p.m.,

and he, Appellant, and Appellant’s grandchild went to their

bedroom. Burns left the bedroom shortly thereafter. At some point,

Appellant went to bed.

Around 2:00 or 3:00 a.m., Burns returned to the house. He was

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drunk. Burns asked if Appellant was upset with him. According to

Appellant, before she had a chance to respond, Burns pushed her

head back, pushed her a second time, and came toward her with a

raised hand, at which point Appellant reached behind her, grabbed

a boning knife off the table, and stabbed Burns. Appellant then left

the bedroom with her grandchild but did not call 911 or request help.

According to Moore, she often overheard Appellant and Burns

arguing, and on the night of the stabbing, Moore awoke to a loud

argument between the couple, which eventually quieted down until

3:00 or 4:00 a.m. when Appellant came to speak with her. Appellant

told Moore that she was leaving the house with her grandchild.

Appellant made no mention of Burns or anything about their

altercation. Moore went back to sleep, went to work the next day,

and upon returning home, encountered Appellant’s daughter (and

the mother of Appellant’s grandchild), Khadijah Flood (hereinafter

“Khadijah”), near Appellant’s bedroom, hysterical and crying.

Appellant returned the grandchild to Khadijah early in the

morning after leaving the boarding house. Later in the day,

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Khadijah called Appellant about retrieving a stroller and some

diapers left at the boarding house. When Khadijah arrived at the

boarding house around 4:00 p.m., a tenant let her in, and she

proceeded to Appellant’s bedroom. Khadijah knocked, but there was

no answer. She opened the unlocked door and saw Burns’s body on

the bed. Khadijah ran outside and called her mother. Appellant

sounded normal on the phone until Khadijah told her about Burns,

at which point Appellant became hysterical.

Burns’s autopsy revealed a three-inch stab wound in the upper

left chest and shoulder area. The medical examiner testified that

Burns would have bled profusely from this stab wound. The

examiner also found alcohol and cocaine in Burns’s system and

determined that the chest wound was the cause of Burns’s death.

Appellant testified at trial. Her testimony largely centered

around her claim of self-defense.

(b) Appellant contends that the evidence was insufficient to

support her conviction for felony murder and instead supports a

verdict of not guilty based on a theory of self-defense and that the

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evidence is wholly consistent with her testimony that she lacked

intent to kill or commit violent injury to Burns but was merely

acting in self-defense. Appellant asserts that she grabbed an object

to defend herself from Burns’s attack and then left the room not

knowing that he was seriously injured. Appellant further asserts

that the State did not produce evidence contradicting this claim. At

most, Appellant argues, the evidence supported a finding of

voluntary manslaughter. 2 See OCGA § 16-5-2 (a).

When evaluating the sufficiency of evidence as a matter of

constitutional due process, “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.

304, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis

omitted). Reconciling inconsistencies in testimony and determining

witness credibility are left to the province of the jury. See Williams

2 We note that the jury was instructed on voluntary manslaughter, but
we do not address if the evidence required that instruction.
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v. State, 302 Ga. 474, 478 (I) (807 SE2d 350) (2017). Here, the record

is replete with evidence that would authorize a jury to find

Appellant guilty of felony murder. Appellant and Burns were in a

turbulent relationship for approximately 18 years, during which

they argued about substance abuse and infidelity. Burns was

described as quiet, laid-back, and rarely violent toward Appellant,

except for Appellant’s account of one incident in January of 2016.

Appellant was described as the aggressor in the relationship and as

being controlling of Burns. Furthermore, Appellant admitted to

stabbing Burns with a boning knife, and when detectives

interviewed Appellant two days after the incident, she had no marks

or injuries consistent with defending herself in a fight. She stated

that she did not see much blood after stabbing Burns, but the

medical examiner’s testimony was that Burns would have been

bleeding profusely from the type of stab wound that Appellant

inflicted. In addition, after the stabbing, Appellant neither called

911 nor sought any assistance; she only told another tenant that she

was leaving the house, without mentioning she had stabbed Burns.

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Finally, during Appellant’s phone call with her daughter, she made

no mention of the previous night’s stabbing.

Moreover, questions as to the existence of a justification

defense are for a jury to decide, and given the evidence discussed

above, the jury was free to decide whether Appellant acted in self-

defense, and whether the alleged self-defense was warranted. See

Dent v. State, 303 Ga. 110, 113 (1) (810 SE2d 527) (2018) (“It is a

jury question as to whether [a showing of self-defense] has been

made, and therefore, whether a defendant’s claim of self-defense

should be accepted.”). In light of the evidence presented at trial, we

conclude that the jury was authorized to reject Appellant’s self-

defense claim and find her guilty of felony murder. See Robinson v.

State, 283 Ga. 229, 230 (1) (657 SE2d 822) (2008) (“[T]he jury was

free to reject the claim that [the appellant] stabbed the victim in self

defense” and find the appellant guilty of felony murder.)

(punctuation omitted)). Accordingly, this contention lacks merit.

2. Appellant raises three separate arguments regarding the

jury instructions provided at trial: first, that the sequence of the jury

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charges was improper; second, that the trial court incorrectly

instructed the jury when the jury sought clarification of the jury

charges; and third, that the trial court failed to give pattern charges

on the legal relationship between a felony and felony murder.

Appellant also contends that the cumulative prejudice from these

errors requires a new trial.

Appellant failed to make a timely objection to each alleged

instructional error; therefore, our review of the jury charges is

limited to a plain error analysis. See Solomon v. State, 293 Ga. 605,

606-607 (2) (748 SE2d 865) (2013) (citing OCGA § 17-8-58 (b)). To

establish plain error:

First, there must be an error or defect — some sort of
deviation from a legal rule — that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error — discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity, or public reputation of judicial

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 proceedings.

Leeks v. State, 303 Ga. 104, 108 (3) (810 SE2d 536) (2018) (citation

and punctuation omitted). We need not analyze the other elements

of the plain error test if the appellant fails to establish any one of

them. See State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b) (818

SE2d 552) (2018).

(a) First, Appellant alleges that the trial court incorrectly

instructed jurors regarding the order in which they should consider

the murder and voluntary manslaughter offenses in violation of

Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992), which

holds that, where the evidence would authorize a charge on

voluntary manslaughter, a sequential charge is improper if it

requires the jury to consider voluntary manslaughter only if it has

considered and found the defendant not guilty of malice murder and

felony murder. “The jury should be admonished that if it finds

provocation and passion with respect to the act which caused the

killing, it could not find felony murder, but would be authorized to

find voluntary manslaughter.” Id. at 867 n.3.

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 During the jury instructions, the trial court defined malice

murder, felony murder, and aggravated assault. Thereafter, the

trial court gave the following instruction:

After considering all the evidence, before you would be
authorized to return a verdict of guilty of malice or felony
murder, you must first determine whether mitigating
circumstances, if any, would cause the offense to be
reduced to voluntary manslaughter.

The court then went on to instruct the jury on the definition of

voluntary manslaughter and provocation.

After about ten minutes of deliberations, the jury sent a note

to the trial judge that read, “The jury requests a copy of a description

of the charges.” The jury returned to the courtroom, and the jurors

clarified that one member requested “the definition of the law of the

charges.” In response, the trial court orally reinstructed the jury in

open court on the definitions of malice murder, felony murder,

aggravated assault, and the knife possession charge. The court then

orally gave the mitigating-circumstances instruction quoted above,

followed by the voluntary manslaughter instruction.

The trial court asked if the oral recharge was helpful, and the

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foreperson requested that the court send a written copy of the

definitions of the charged crimes for the jurors to view. The court

asked if there were any objections to providing these written

charges, and defense counsel requested that the court send the

entire set of jury instructions with the jury. The jury then returned

to deliberations with a paper copy of the complete jury instructions,

including the definitions of the crimes with which Appellant was

charged and the mitigating-circumstances instruction.

Appellant argues that the trial court’s instructions created

ambiguity about the order in which the jury should have considered

the various homicide charges. Citing Ortiz v. State, 291 Ga. 3, 5 (2)

(727 SE2d 103) (2012), Appellant argues that the trial court should

have first instructed the jury as to the elements of malice murder,

felony murder, aggravated assault, and voluntary manslaughter,

and then instructed the jury to determine whether mitigating

circumstances would reduce the crime to voluntary manslaughter.

Appellant contends that the mitigating-circumstances instruction

was given prior to the charge on the elements of voluntary

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manslaughter, misleading the jury into thinking that it must first

acquit the Appellant of either form of murder before it could consider

voluntary manslaughter.

However, the trial court instructed the jury to consider

mitigation first, and the jury verdict form listed the homicide

charges in the proper order. With respect to the homicide counts,

the prepared verdict form read as follows:

JURY VERDICT

COUNTS ONE, TWO AND THREE: HOMICIDE

(Select one Verdict Only)

___ We the jury find the Defendant NOT GUILTY

or

___ We the jury find the Defendant GUILTY of the
lesser included offense of Voluntary Manslaughter

or

___ We the jury find the Defendant GUILTY of Malice
Murder

or

___ We the jury find the Defendant GUILTY of Felony

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 Murder

At the end of the jury’s deliberations, the foreperson checked only

the fourth and final option, indicating that the jury found Appellant

guilty of felony murder.

We conclude that the verdict form – together with the jury

charge and recharge – allowed for the jury’s proper consideration of

the murder charges. “A preprinted verdict form is treated as part of

the jury instructions which are read and considered as a whole in

determining whether there is [instructional] error.” Rowland v.

State, 306 Ga. 59, 68 (6) (829 SE2d 81) (2019) (citations and

punctuation omitted). There is no exact formula that trial courts

must follow, “so long as the charge as a whole ensures that the jury

will consider whether evidence of provocation and passion might

authorize a verdict of voluntary manslaughter.” Elvie v. State, 289

Ga. 779, 781 (2) (716 SE2d 170) (2011) (citation and punctuation

omitted). Taken together, the jury instructions did not violate our

holding in Edge because the jury was properly admonished to

consider mitigating evidence in both oral and written instructions.

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These instructions were not erroneous. Because there is no error,

much less plain error, this claim fails.

(b) Next, Appellant argues that the trial court gave an

inadequate explanation when the jury asked about the different

forms of homicide. We see no error. During deliberations, the jury

sent a note to the trial court stating: “We have one juror who believes

the defendant is guilty of malice murder. The other eleven jurors

are willing to settle on a lesser charge of felony murder or

involuntary [sic] manslaughter.” (Emphasis in original.) The trial

court addressed this concern through the following colloquy in open

court:

COURT: I want to emphasize to you, as you know, once
again, whatever your decision is, it has to be unanimous.
If there is to be a decision, all twelve of you must freely
and voluntarily agree to it. But felony murder and malice
murder are both murder. Felony murder is not a lesser
offense than malice murder. As you’ll recall, they were
written on the board and they were written at the same
level.[3] They are murder. The lesser-included offense is
voluntary manslaughter as that has been defined to you.
Does that help any?

3 The court seems to be referring to statements made during closing
argument, where an attorney used a board to demonstrate the relationship
between the crimes.
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 FOREPERSON: Yes, sir.

Appellant did not object to the trial court’s statement.

Appellant now argues that this instruction was unclear and

incorrect because the court failed to explain which offenses the jury

should consider and how they should be considered, and failed to

distinguish between the required intent for malice and felony

murder. We disagree.

“A trial court has a duty to recharge the jury on issues for

which the jury requests a recharge.” Barnes v. State, 305 Ga. 18, 23

(3) (823 SE2d 302) (2019) (quoting Sharpe v. State, 288 Ga. 565, 569

(6) (707 SE2d 338) (2011)). Here, the jury’s note indicated confusion

about the relationship between malice murder, felony murder, and

manslaughter. This confusion was evident by the fact that the jury’s

note indicated that it was considering involuntary manslaughter,

which was not one of the indicted charges, and that the jury called

felony murder a “lesser charge” than malice murder. In response,

the trial court clarified that felony murder and malice murder were

both forms of murder, and that felony murder is not a lesser offense

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than malice murder. The court further stated that voluntary

manslaughter is a lesser-included offense. This was a correct

statement of law. Furthermore, the foreperson indicated that the

trial court’s recharge assisted the jury in its understanding. Defense

counsel raised no objection to this course of action. Given the

demonstrated confusion by the jury, the trial court’s response was

not an abuse of discretion. See Dozier v. State, 306 Ga. 29, 32 (3)

(829 SE2d 131) (2019) (no abuse of discretion where the trial court

discerned that the jury was confused about a legal theory, the trial

court correctly recharged the jury, and there was nothing indicating

that the jury had an erroneous impression of the law after the

recharge).

“As a general matter . . . , where [a request for a recharge has

not] been made, the need, breadth, and formation of additional jury

instructions are left to the sound discretion of the trial court.”

Barnes, 305 Ga. at 23 (3). The trial court correctly noted that the

jury was giving the court “information on how [it stood] with regard

to certain charges,” and the court offered guidance that was a correct

17
statement of the law in response. Therefore, we conclude that the

trial court did not abuse its discretion in instructing the jury. We

therefore discern no plain error, and this enumeration fails.

(c) Next, Appellant argues that the trial court failed to give a

jury instruction requested by both the State and Appellant. We

identify no plain error.

Both parties made written requests to the court to include

Georgia Suggested Pattern Jury Instructions – Criminal 2.10.30,

which is the pattern jury instruction outlining the relationship

between a felony murder and the underlying felony. 4 During its

4 The pertinent portion of this instruction states:

The homicide must have been done in carrying out the [felony] and
not collateral to it. It is not enough that the homicide occurred
soon or presently after the felony was attempted or committed.
(There must be such a legal relationship between the homicide and
the felony so as to cause you to find that the homicide occurred
before the felony was at an end or before any attempt to avoid
conviction or arrest for the felony.) The felony must have a legal
relationship to the homicide, be at least concurrent with it in part,
and be a part of it in an actual and material sense. A homicide is
committed in the carrying out of a felony when it is committed by
the accused while engaged in the performance of any act required
for the full execution of the felony.

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initial oral charge to the jury, the trial court gave only the definition

of felony murder as laid out in Georgia Suggested Pattern Jury

Instructions – Criminal 2.10.20, Felony Murder; Defined. 5 It did not

give Pattern Jury Instruction 2.10.30 orally in either the initial oral

charge or the oral recharge, but later, upon request by the jury, sent

a written copy of this instruction with the jury into deliberations,

along with all of the other jury instructions in the case.

Appellant contends that both 2.10.20 and 2.10.30 must be

provided to illustrate the relationship between the death and the

underlying felony. See Ware v. State, 305 Ga. 457, 458-459 (2) (826

SE2d 56) (2019). Further, Appellant argues that the omitted jury

instruction harmed her because “the jury cannot be presumed to

have utilized the written charge to correct the erroneous oral charge

given directly by the judge, with the written charge given as a

supplement.” Instead, Appellant argues, “the jury should have been

5 This instruction states: “[a] person (also) commits the crime of murder
when, in the commission of a felony, that person causes the death of another
human being (with or without malice). Under the laws of Georgia (name
offense) is a felony and is defined as follows . . . .”
19
given the full definition of felony murder to ensure there was no

confusion on the issue of its applicability to the facts in the case at

bar.”

Pretermitting any error in the omission of the underlying

felony instruction in the oral charges, we conclude that the omission

of the jury instruction was harmless. Here, the instruction that was

omitted from the oral charge – but provided to the jury in written

form – was about the relationship between Burns’s death and the

predicate felony. Given that the predicate felony was aggravated

assault by stabbing, and the stabbing indisputably caused Burns’s

death, it is difficult to see how including the underlying felony

instruction during the oral charges would have likely caused a

different outcome in Appellant’s trial. Therefore, Appellant has

failed to meet her burden of proving plain error, and this

enumeration fails.

(d) Appellant argues that these three alleged errors

cumulatively prejudiced her and that she is entitled to a new trial.

“To establish cumulative error[, Appellant] must show that (1) at

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least two errors were committed in the course of the trial; [and] (2)

considered together along with the entire record, the multiple errors

so infected the jury’s deliberation that they denied [Appellant] a

fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d

808) (2020). However, when reviewing a claim of cumulative

prejudice, “we evaluate only the effects of matters determined to be

error rather than the cumulative effect of non-errors.” Scott v. State,

309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020). Even assuming –

without deciding – that Lane applies to instructional errors,

Appellant has failed to show more than one error with respect to the

jury charges that would provide this Court with a basis for

evaluating cumulative effect. This argument fails.

3. Finally, Appellant asserts that the trial court improperly

admitted character evidence when the prosecutor stated during

closing arguments that Appellant used drugs, thereby putting

Appellant’s character at issue. For the reasons explained below, we

conclude that the trial court committed no error, and even if the trial

court had committed error by allowing the State to raise the

21
inference that Appellant was a drug user, any such error was

harmless.

During closing argument, the following discussion occurred in

front of the jury:

PROSECUTOR: The Defense, during the course of the
evidence yesterday and during closing today, has tried to
create a narrative for you that’s just not true. What they
want you to believe is that this woman is a woman who
has been battered and beaten for years and that she
finally just had to defend herself or snapped that that’s
what was going on here. That Bobby Burns was a horrible
mean man who was abusive to her. And the evidence
just—it doesn’t support that. It just doesn’t.
The truth is both of these people drank. Both of them
used drugs.
DEFENSE: Judge, there’s no evidence of that.
COURT: Sustained. Jury, disregard.
PROSECUTOR: Your Honor, may I respond?
COURT: You can respond.
PROSECUTOR: The—the defendant, in her own
statement to the police officer said that she drank, too.
And there has been evidence from her and her daughter
about her own drug use.
COURT: You are correct, in a past tense.
PROSECUTOR: Actually, her daughter, in her interview
with the detective, said she was concerned about her
mother’s own current drug use.
DEFENSE: Judge, that did not come out before the jury.
PROSECUTOR: And I impeached her with that.
COURT: I agree. Move on.
PROSECUTOR: May I talk about the drinking that she

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 admitted that in her interview?
COURT: To the extent that she admitted it, yes.
PROSECUTOR: Thank you. You heard her, in her
interview, talk about the fact that she drank, too. So this
is not Bobby as some horrible drinking, drug-using,
abusive person. Substance abuse was something that
went on with both of them.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury makes
statements of prejudicial matters which are not in
evidence, it is the duty of the court to interpose and
prevent the same. On objection made, the court shall also
rebuke the counsel and by all needful and proper
instructions to the jury endeavor to remove the improper
impression from their minds; or, in his discretion, he may
order a mistrial if the prosecuting attorney is the offender.

Prosecutors generally have wide latitude in remarks made during

closing statements, and the trial court determines these boundaries.

See Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012). And

within these boundaries, a prosecutor may argue reasonable

inferences from the evidence, including any that address the

credibility of witnesses. See id. During Khadijah’s testimony earlier

in the trial, the prosecutor asked, “Did you know your mother used

drugs?” Khadijah responded, “When I was a child, yes.” Thus,

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Appellant’s past drug use had already been brought up as evidence.

Furthermore, as soon as the prosecutor said in her closing

argument that Appellant used drugs, defense counsel objected. The

trial court immediately intervened and instructed the jury to

disregard the prosecutor’s statement, and the defendant raised no

further objection to any implication that Appellant used drugs.

Moreover, any error in instructing the jury to disregard the

comment was harmless, given that evidence of Appellant’s past drug

use was elicited without objection at trial and considering the

substantial evidence of Appellant’s guilt. Accordingly, this

enumeration of error fails.

Judgment affirmed. All the Justices concur.

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