In the Supreme Court of Georgia

Decided: May 17, 2022

S22A0025. JOHNSON v. THE STATE.

 COLVIN, Justice.

Following a jury trial, Hymetheus Johnson was convicted of 

one count of malice murder and one count of theft by taking in 

connection with the shooting death of Javontae Passard.1 Johnson 

appeals, alleging that the trial court erred in refusing to give a 

requested jury instruction on voluntary manslaughter as a lesser

 1 The crimes occurred on July 15, 2016. On October 18, 2016, a Bibb 

County grand jury indicted Johnson on the following counts: malice murder 

(Count 1), felony murder predicated on aggravated assault (Count 2), and 

hijacking a motor vehicle (Count 3). At a jury trial held from June 20 to 22, 

2018, Johnson was found guilty of the first two counts and guilty of theft by 

taking, a lesser-included offense of the crime charged in Count 3. The trial 

court merged Count 2 with Count 1, but that count was actually vacated by 

operation of law. See Malcolm v. State, 263 Ga. 369, 372-373 (5) (434 SE2d 

479) (1993). Johnson was sentenced to life imprisonment for Count 1 and a 

concurrent 12-month sentence for Count 3. Johnson timely filed a motion for 

new trial on June 26, 2018 and amended the motion on March 3, 2021. After 

conducting a hearing on June 2, 2021, the trial court denied the motion for new 

trial on June 8, 2021. The appeal was docketed to this Court’s term beginning 

in December 2021 and submitted for a decision on the briefs.
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offense of the charges of malice murder and felony murder. For the 

reasons set forth below, we affirm Johnson’s convictions.

The evidence presented at trial showed the following. On July 

14, 2016, Johnson slept in a car owned by his friends, twins Tyron 

and Kyron Jackson, who kept a 9mm handgun in the car. The next 

day, Johnson and the twins drove the car to a barbershop. The 

Jacksons went inside while Johnson stayed in the vehicle. The 

Jacksons returned to the car with Passard, a friend of the group. 

The four men then drove to Johnson’s mother’s house. Johnson had

told the group that his mother did not want him bringing guests 

with him, so they parked the car, and Johnson went into his 

mother’s home alone to gather some belongings. 

Shortly after Johnson went into the house, Passard walked up 

to the front door and knocked. Johnson’s mother, who was engaged 

in a verbal argument with Johnson, opened the front door and took 

Johnson’s younger siblings across the street to a neighbor’s house. 

Johnson then left the house, and Passard, standing near the front 

door, told Johnson he should not speak to his mother like that. A 
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verbal altercation ensued. Johnson yelled at Passard to get away 

from the house. In response, Passard told Johnson to stop yelling at 

him, and he refused to leave. Although Johnson called for the 

Jacksons to take Passard away from the house, the twins remained

in or near the car. 

Johnson then pulled out the Jacksons’ gun, which, 

unbeknownst to the Jacksons, Johnson had taken from the car. 

Johnson waved the gun around and pointed it at Passard’s face. In 

response, Passard grabbed Johnson’s hand and shoved the gun 

away, causing Johnson to stumble backwards.

Johnson regained his footing, racked the slide twice, ejecting 

two live rounds of ammunition, and then fired two shots at Passard, 

striking him in the chest and lower abdomen. Johnson then got into 

the Jacksons’ car and drove away. Passard died shortly thereafter.

Johnson contends that the trial court erred when it refused to 

give a requested jury instruction on voluntary manslaughter as a 

lesser offense of both malice murder and felony murder predicated 
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on aggravated assault.2 A person commits voluntary manslaughter 

if he or she

acts solely as the result of a sudden, violent, and 

irresistible passion resulting from serious provocation 

sufficient to excite such a 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.

OCGA § 16-5-2 (a). A trial court is required to give a requested 

charge on voluntary manslaughter if there is slight evidence 

supporting the charge. See Hatney v. State, 308 Ga. 438, 441 (2) 

(841 SE2d 702) (2020). 

Johnson contends that he was entitled to a voluntary 

manslaughter instruction because his “passion was provoked by 

Passard’s uninvited entrance upon his mother’s doorstep, refusal to 

leave, confrontational words, and physical pushing [that caused] 

 2 Because the felony murder count was vacated by operation of law, 

Johnson’s contention as to this offense is moot. See Mills v. State, 287 Ga. 828, 

830 (2) (700 SE2d 544) (2010) (explaining that where a felony murder count 

was vacated by operation of law, alleged errors underlying the count were 

rendered moot). 
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Johnson to stumble.” However, no evidence supported a finding that 

Passard’s actions rose to the level of provocation necessary to 

support a voluntary manslaughter charge. The fact that an 

uninvited guest approaches the defendant’s door, knocks on the 

door, and then does not immediately comply with a request to leave 

is not conduct that would provoke in a reasonable person an 

irresistible passion to kill the unwanted guest. See Stuckey v. State, 

213 Ga. 525, 526 (1) (100 SE2d 189) (1957) (“To intentionally kill, 

with a deadly weapon, one who is committing trespass upon 

property, is generally murder, and not manslaughter.” (citation and 

punctuation omitted)). Further, evidence that Johnson and Passard 

had an argument—even a heated one—does not warrant a voluntary 

manslaughter charge. See Merritt v. State, 292 Ga. 327, 331 (2) (737 

SE2d 673) (2013) (holding that “angry statements” generally do not 

amount to serious provocation within the meaning of the voluntary 

manslaughter statute); Gresham v. State, 289 Ga. 103, 104 & n.2 

(3) (709 SE2d 780) (2011) (holding that evidence that the defendant 

and victim argued over money and the victim threatened to shoot 
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the defendant in the future did not warrant a voluntary 

manslaughter charge). Finally, the fact that Passard shoved 

Johnson in response to Johnson pointing a gun at Passard’s face at 

most shows that Passard physically resisted Johnson’s unlawful 

act,3 which is “[not] the type[] of provocation which demand[s] a 

voluntary manslaughter charge.” Nance v. State, 272 Ga. 217, 221 

(3) (526 SE2d 560) (2000) (“[A] voluntary manslaughter charge is 

not warranted when the only alleged evidence of provocation is the 

victim resisting an armed robbery.”).

Absent any “evidence of any specific provocation at or around 

the time of the murder[]” that would generate in a reasonable person

a sudden and irresistible passion to kill, Johnson v. State, 297 Ga. 

839, 843 (2) (778 SE2d 769) (2015), the trial court did not err in 

declining Johnson’s request for a voluntary manslaughter 

instruction.

Judgment affirmed. All the Justices concur.

 3 See OCGA § 16-5-21 (a) (2) (explaining that one commits the offense of 

aggravated assault when one assaults another “[w]ith a deadly weapon”).