ATLANTA — Whether jealous rage should have played more of a role at a Gainesville man’s 2010 murder trial was argued Monday by attorneys before the Georgia Supreme Court.
Hugo Tepanca’s attorney, Howard W. Anderson III, argued before justices that the jury, which found Tepanca guilty of murder, should have been told how adultery can serve as “grounds for provocation” for a lesser charge of manslaughter.
“Case law says you don’t have to be married, because the General Assembly recognizes that, on average, people do stupid things when they’re in love,” Anderson said.
“Here, he found out his girlfriend was cheating on him and became so upset that he shot a gun at the ground,” he said. “Then, 30 minutes later, he and the victim wind up together and he shoots the victim.”
Matthew Crowder, an assistant attorney general arguing for the state, dismissed the “adultery” claim.
“There was absolutely no evidence here that would have warranted charging on adultery,” he said. “There’s got to be affirmative evidence of adultery or sexual jealousy, or however you want to describe it, and there’s just none in this case.”
Tepanca is serving life in prison, plus five years, for the April 2008 slaying of Jose Sanchez-Vargas.
At the time, Tepanca was living with the mother of his two children but was seeing another woman, Alicia Hernandez.
According to testimony, Tepanca approached Sanchez-Vargas’ vehicle in Hernandez’s driveway, asking what he was doing there and Sanchez-Vargas said, “It’s none of your business.”
The men drove away in separate vehicles and ended up in front of a Merck Street home, where Tepanca fired six shots at Sanchez-Vargas.
Justice Harold Melton questioned Anderson on the jealousy claim.
“What is the right test for whether there’s evidence of adultery?” he asked. “All we know from the record is that he saw a man talking to his paramour. He made that conclusion, but is that enough to justify the charge?”
Referring to court record, “the reason he thought she was having an affair was the way (Sanchez-Vargas) said ‘It’s none of your business,’” Anderson said.
“Is that sufficient, as a matter of law, to justify somebody rising to the level of heat of passion?” Melton asked.
“I think it’s really up to the jury to decide is it enough,” Anderson said.
“It’s a struggle for me to know if it’s enough,” Melton said.
Crowder referred to Melton’s concerns in saying he believed events in the case didn’t meet a standard for provocation.
According to the state, Tepanca was “well aware” of an arrangement Sanchez-Vargas had with Hernandez and others “to drive them them to work for a fee,” and Sanchez-Vargas was there to pick up his advance fare.
“That’s all we’ve got here,” Crowder said. “There’s nothing to show that Mr. Tepanca was ever made aware ... that there might be something going on between (Hernandez) and the victim.”
Anderson also contended the jury should have been instructed on “mutual combat,” which can lead to the lesser manslaughter charge.
The state refutes that claim, according to a Supreme Court summary of the case, saying there is no evidence to support it.