No Voluntary Manslaughter Charge Without Serious Provocation: Georgia Supreme Court Reaffirms Plain-Error Limits and Strickland Prejudice in Marrow v. State

Introduction

In Marrow v. State (Supreme Court of Georgia, Aug. 26, 2025), the Court affirmed the convictions and sentences of Keith Lamont Marrow for the malice murders of three victims—Courtney German, William Mullins III, and Shayla Curtis—and related firearm offenses. The case arose out of a gang-context triple homicide in Savannah, Georgia, followed by Marrow’s flight and apprehension in South Carolina with a pistol later matched by ballistics to the crime scene.

At trial, Marrow admitted the shootings but argued justification (self-defense). On appeal, he raised four clusters of issues:

Jury instructions: The trial court’s refusal to instruct the jury on voluntary manslaughter as a lesser-included offense of malice murder.
Ineffective assistance of trial counsel: (i) failure to stipulate to his felony status; (ii) failure to submit a written request for a voluntary manslaughter instruction; (iii) failure to call three defense witnesses; and (iv) failure to preserve a hearsay objection concerning the decedent’s out-of-court statement about Marrow’s drug use.
Cumulative prejudice: The combined effect of counsel’s alleged errors.
Ineffective assistance of motion-for-new-trial counsel: Failure to present evidence supporting trial counsel ineffectiveness, particularly after trial counsel’s death.

The Court’s opinion—while not announcing brand-new doctrine—sharply clarifies boundaries on when a voluntary manslaughter instruction is warranted, how plain-error review operates for unpreserved jury-instruction claims, the demanding nature of Strickland prejudice (especially where evidence of guilt is strong), and the strict proof needed to leverage Georgia’s witness-tampering hearsay exception (OCGA § 24-8-804(b)(5)).

Summary of the Judgment

Voluntary manslaughter instruction: Affirmed under plain error review. The evidence—at most “words alone,” a “bad vibe,” and fear someone might pull a gun—did not constitute “serious provocation” or an irresistible passion in a reasonable person. The trial court correctly refused the charge.
Ineffective assistance of trial counsel:
- Failure to stipulate to felony status: No prejudice. The State already had properly admitted evidence of a recent gunpoint robbery; the prior conviction’s details were not emphasized and the overall case against Marrow was strong.
- Failure to submit a written voluntary manslaughter charge: Not deficient because no evidence supported the instruction.
- Failure to call three witnesses: Strategic choice; their proposed testimony was cumulative and not eyewitness-based; no deficiency or prejudice.
- Failure to preserve hearsay objection under § 24-8-804(b)(5): Even assuming deficiency, no prejudice because the “Flakka” statement was cumulative of other properly admitted drug-use evidence and the prosecution’s case was strong.
Cumulative prejudice: Rejected. The assumed errors yielded at most minor incremental prejudice with no synergistic effect.
Ineffective assistance of motion-for-new-trial counsel: Rejected. Where the underlying trial-counsel claims fail on the existing record and no concrete additional evidence is identified, speculation cannot show prejudice.

Analysis

Precedents and Authorities Cited

OCGA § 17-8-58(b) and Johnson v. State, 321 Ga. 511 (2025): Plain-error review governs unpreserved jury-instruction claims. The defendant must show (1) a legal error not affirmatively waived, (2) that is clear or obvious, (3) affecting substantial rights; even then, the appellate court remedies the error only if it undermines the fairness, integrity, or public reputation of judicial proceedings.
OCGA § 16-5-2(a) and Smith v. State, 296 Ga. 731 (2015): A voluntary manslaughter instruction requires at least “slight evidence” that the killing occurred solely under a sudden, violent, irresistible passion from “serious provocation” that would inflame a reasonable person. “Words alone,” fear someone will draw a gun, or even “fighting” do not meet this threshold.
Calmer v. State, 309 Ga. 368 (2020): “Slight evidence” of justification suffices for a self-defense instruction; by contrast, voluntary manslaughter demands the distinct element of serious provocation/passion.
Strickland v. Washington, 466 U.S. 668 (1984); Burke v. State, 320 Ga. 706 (2025): Two-prong ineffective assistance standard—deficiency and prejudice. Counsel’s performance must be objectively unreasonable, and prejudice requires a reasonable probability of a different outcome but for the deficiency.
Jackson v. State, 317 Ga. 95 (2023): No prejudice from failure to stipulate to felony status where the evidence of guilt is strong and the State does not emphasize the prior conviction.
Powell v. State, 307 Ga. 96 (2019): Counsel is not deficient for failing to request a jury instruction unsupported by the evidence.
Butler v. State, 313 Ga. 675 (2022): Witness selection is strategic; deficiency arises only if no competent attorney would have made the same decision in similar circumstances.
OCGA § 24-8-804(b)(5) and Morrell v. State, 313 Ga. 247 (2022): Forfeiture-by-wrongdoing hearsay exception requires proof by a preponderance that the defendant engaged in wrongdoing intended to, and which did, procure the declarant’s unavailability.
Jennings v. State, 318 Ga. 579 (2024): Erroneously admitted hearsay can be harmless where cumulative of other evidence and the remaining case is strong.
Washington v. State, 320 Ga. 839 (2025): Cumulative-error analysis requires that assumed errors produce more than minor, disconnected prejudice; strong evidence of guilt defeats cumulative prejudice.
Arnold v. State, 321 Ga. 434 (2025); Anthony v. State, 302 Ga. 546 (2017): Speculation cannot establish prejudice; when underlying trial-level IAC claims lack merit on the existing record, allegations against motion-for-new-trial counsel necessarily fail.
Miranda v. Arizona, 384 U.S. 436 (1966): Marrow’s statements followed Miranda warnings; admissibility was not contested on appeal but contextualizes the evidentiary record.

Legal Reasoning

1) Voluntary Manslaughter Instruction Under Plain-Error Review

The Court held there was no legal error—much less a clear or obvious one—in refusing the voluntary manslaughter instruction. The record evidence supporting “provocation” consisted of: (i) a tense atmosphere (“bad vibe”) during a marijuana session; (ii) Marrow’s speculation about a possible “hit” based on overheard conversations with a prison-based gang contact; (iii) the presence of firearms and a glance or comment (“you’re not that dumb”); and (iv) Marrow’s own fear that others might draw a gun. Under Smith, “words alone” and mere fear of a gun do not constitute “serious provocation,” and nothing in the record suggested the necessary sudden, violent, irresistible passion. The Court emphasized that even if this evidence might supply slight evidence of justification for self-defense (and the jury was instructed on justification), it did not come close to the distinctive “passion from serious provocation” element that defines voluntary manslaughter.

Procedurally, although defense counsel responded “That’s fine, Judge” when the trial court announced it would not give the manslaughter charge, the Supreme Court treated the absence of a post-charge objection as a forfeiture subject to plain-error review, not an affirmative waiver precluding review. On the merits, the claim failed under Smith and Calmer.

2) Ineffective Assistance of Trial Counsel

Felon-status stipulation: The State read a certified Louisiana conviction that included an armed-robbery description. Assuming counsel performed deficiently by not stipulating to the bare status of a prior felony (to keep out details), the Court found no Strickland prejudice. The jury already heard untainted evidence that Marrow committed a gunpoint robbery the day before the murders; the prior conviction was not emphasized thereafter; and the evidence of guilt—including ballistics, fingerprints, and Marrow’s recorded admissions—was overwhelming.
Written request for manslaughter charge: Counsel was not deficient for failing to press a written request where the evidence did not support the instruction. Powell controls: requesting an unsupported charge is not required and can be strategically unsound.
Uncalled witnesses (Rayford, Jenkins, Mobley): Marrow argued these witnesses would corroborate self-defense by showing guns in the house, gang membership, interpersonal friction, and a vehicle swap request. The Court held the proposed testimony was not eyewitness-based and largely cumulative of other evidence of pre-existing tension. Witness selection is strategic; no deficiency or prejudice.
Hearsay (German’s “Flakka” statement): The State invoked OCGA § 24-8-804(b)(5) (forfeiture by wrongdoing) to admit the decedent’s out-of-court statement about Marrow’s prior drug use. Even assuming counsel was deficient in not persisting with a hearsay objection (contesting the State’s ability to meet Morrell’s “intent to procure unavailability” requirement), the Court found no prejudice: the statement was cumulative of properly admitted evidence that Marrow used ecstasy and marijuana around the time of the killings and that these drugs could contribute to paranoia. The rest of the case against Marrow remained strong.

3) Cumulative Prejudice

The Court assumed two arguable errors (stipulation and hearsay) yet held their aggregate effect remained minor. Neither error bore significantly on the only contested issues (justification or passion), and the evidence of guilt was otherwise overwhelming. Under Washington, no cumulative prejudice was shown.

4) Ineffective Assistance of Motion-for-New-Trial Counsel

Marrow argued his post-trial counsel should have filled evidentiary gaps left by trial counsel’s death. The Court held that because the trial-level IAC claims failed on the existing record, and because Marrow identified no concrete evidence that could have altered those outcomes, he could not show prejudice against motion-for-new-trial counsel. Arnold and Anthony make clear: speculation is insufficient.

Impact and Forward-Looking Significance

Voluntary Manslaughter Instructions: The opinion reinforces a tight gatekeeping standard. In Georgia, the presence of firearms, gang friction, ominous vibes, and even an offensive comment do not—without more—constitute “serious provocation” that would inflame a reasonable person to act under sudden, violent, irresistible passion. Defense strategies should separate “fear-based” self-defense from “passion-based” voluntary manslaughter; the evidentiary predicates are distinct.
Plain-Error Review: Marrow illustrates the difficulty of securing relief for unpreserved instruction claims. Even where counsel indicates acceptance of the court’s ruling (“That’s fine”), the Supreme Court may still reach plain-error review; but absent clear, record-based entitlement to the instruction, reversal is unlikely.
Forfeiture-by-Wrongdoing Hearsay (§ 24-8-804(b)(5)): The State floated this exemption for a decedent’s statement tangential to the central issues (drug use). The Court carefully avoided endorsing its application here, instead assuming counsel error and finding no prejudice. Practically, prosecutors should be prepared to meet Morrell’s elements—particularly intent to procure unavailability—to admit a decedent’s out-of-court statements. Defense counsel should persist with targeted objections, requesting findings on each Morrell prong.
Felon-in-Possession Counts and Stipulations: While best practice remains to stipulate to bare felony status to exclude prejudicial details, Marrow shows that failure to do so will not automatically establish prejudice, especially where similar or worse conduct is already before the jury and the prior is not emphasized.
Uncalled Witnesses: Appellate IAC claims premised on omitted witnesses need concrete, non-cumulative proffers. Testimony that merely repeats general background facts (e.g., gang membership, presence of guns, pre-existing friction) without eyewitness perspectives or decisive context rarely moves the prejudice needle.
Cumulative Error Doctrine: The Court’s analysis reiterates that aggregation only matters where assumed errors interact to undermine confidence in the verdict. Minor, cumulative snippets of already-established themes will not suffice.
Post-Conviction Practice: Even when trial counsel is unavailable (e.g., death), motion-for-new-trial counsel must identify and marshal specific alternative evidence. Absent a detailed proffer showing how new proof would change the Strickland analysis, IAC claims against post-trial counsel falter.

Complex Concepts Simplified

Malice Murder vs. Voluntary Manslaughter:
- Malice murder: An unlawful killing with malice aforethought (express or implied).
- Voluntary manslaughter: A killing “solely” under sudden, violent, irresistible passion from “serious provocation” that would inflame a reasonable person. It is not enough that the defendant was angry, afraid, or intoxicated; the provocation must be objective and severe.
“Slight Evidence” to Warrant an Instruction: Georgia trial courts must give a requested instruction if there is “slight evidence” supporting it. But “slight” is not “any” evidence; it must be legally relevant to each element—here, to serious provocation and passion, not just fear or tension.
Justification (Self-Defense) vs. Voluntary Manslaughter: Self-defense turns on reasonable belief in the need to use force; voluntary manslaughter turns on passion from serious provocation. Evidence that supports one does not automatically support the other.
Plain Error: When a party fails to object at trial, appellate courts review only “plain error”—an obvious error affecting substantial rights. Even then, courts exercise discretion to correct it only if it undermines the fairness or integrity of the proceedings.
Ineffective Assistance (Strickland): Two prongs—deficiency (no reasonable lawyer would have done that) and prejudice (a reasonable probability of a different result). Strong evidence of guilt often defeats the prejudice prong.
Forfeiture by Wrongdoing (OCGA § 24-8-804(b)(5)): Allows admission of a declarant’s out-of-court statements where the defendant caused the declarant’s unavailability with the intent to prevent testimony. The State must prove intent, not just causation.
Cumulative Error/Prejudice: Multiple small errors do not add up to reversal unless, together, they create a reasonable probability of a different outcome or seriously undermine confidence in the verdict.

Conclusion

Marrow v. State is a careful application—and, in important respects, a clarifying reaffirmation—of Georgia’s law on lesser-included instructions, plain-error review, hearsay exceptions for witness-tampering, and the Strickland ineffective-assistance framework. The Court underscores that:

Voluntary manslaughter requires evidence of “serious provocation” that would inflame a reasonable person, not mere words, fear, or ambient tension—even in a gang-laden, firearm-saturated setting.
Unpreserved jury-instruction claims face the steep hill of plain error, and speculations about passion or provocation will not suffice.
Strickland prejudice remains demanding where the State’s case is strong. Tactical decisions about stipulations and witness calls will rarely warrant reversal absent concrete, outcome-altering harm.
The forfeiture-by-wrongdoing hearsay route is narrow; prosecutors should be prepared to prove intent to silence, and defense counsel should persist in demanding that proof.
Cumulative-error and post-conviction IAC claims require specific, substantive showings—not conjecture.

Practitioners should draw two practice lessons from Marrow: preserve instruction issues with clear, on-the-record objections and written requests; and when arguing Strickland, present specific, non-cumulative evidence demonstrating how the trial would likely have ended differently. Absent such showings, Georgia appellate courts will not disturb jury verdicts supported by robust evidence and correct instructions on the defenses actually raised by the record.