An East Georgia man’s murder conviction has been overturned by the Georgia Supreme Court, citing a procedural issue during his trial.

Sherman Lamont Allen, of Elbert County, was originally convicted of malice murder for the 2017 death of Treston Smith. According to court records, Smith’s death followed a fight between himself and Allen over an affair Smith was having with Allen’s longtime romantic partner.

Allen was tried and convicted by a jury in March 2019, but appealed the ruling based on how the jury was presented with charges in the case.

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The Georgia Supreme Court said state law requires that a question asked at trial for murder “is whether a killing immediately following a serious provocation should be punished as voluntary manslaughter instead of murder.”

For Allen’s case, the court said “When any evidence of such serious provocation exists, it is for the jury, not a judge, to decide whether the provocation was sufficient to mitigate the culpability. This is such a case.”

Allen appealed his conviction for malice murder on the sole grounds that the trial court did not instruct the jury to consider the lesser offense of voluntary manslaughter.

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The court ruled that the State “failed to carry its burden to show that it is highly probable that the error did not contribute to the verdict,” and as a result, the state’s highest court ruled they must reverse Allen’s conviction.

In this case, the court said Georgia “case law has long recognized that discovering a partner’s infidelity is generally sufficient provocation to warrant a charge on voluntary manslaughter,” saying that the trial court’s refusal to grant the lesser charge as an option due to Allen’s claiming self-defense was in error.

As a result of the error, the Georgia Supreme Court ruled that the malice murder conviction was reversed, but that additional counts of felony murder, aggravated battery and aggravated assault were also impacted and their verdicts could not stand.

“On remand, the State may retry Allen for malice murder and felony murder, as the evidence was sufficient as a matter of constitutional due process to support a conviction on those counts.”

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