317 Ga. 127
Ga.2023Background
- On August 17, 2018, after drinking together, Steven Whittaker called 911 saying LeBron Hankins had stabbed him and that "I killed him." Hankins was found dead in a large pool of coagulated blood.
- Autopsy showed 50 stab wounds to face/neck/scalp, penetrating to bone, plus strangulation, blunt-force injuries, and a fractured cervical spine; manner of death: homicide by combined injuries. Whittaker had two relatively minor stab wounds.
- Investigators found a bloodied knife at the scene; Whittaker gave statements at the hospital describing blackout periods and saying Hankins had stabbed him first; he later was arrested.
- A Walker County jury convicted Whittaker of malice murder, felony murder, aggravated assault, and possession of a knife during the commission of a felony; he received life without parole on malice murder and five years consecutive for the weapons count.
- On appeal Whittaker argued (1) insufficiency of the evidence for malice/felony murder, (2) the court erred by not instructing that he had no duty to retreat, (3) trial counsel was ineffective in several respects, and (4) the felony-murder sentence/order should be vacated. The Supreme Court of Georgia affirmed.
Issues
| Issue | Whittaker's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for malice murder (and felony murder) | Evidence showed only mutual fight/heat of passion or that Hankins stabbed first, supporting voluntary manslaughter | Evidence (50+ stab wounds, strangulation, broken neck, disparity of injuries, prior bullying) supports malice and disproves self-defense | Malice-murder conviction supported; felony-murder challenge rendered moot as that count was vacated by operation of law |
| Duty to retreat jury instruction | Court should have instructed no duty to retreat under OCGA §16-3-23.1 | Duty-to-retreat instruction is required only if retreat is placed at issue by evidence or argument; it was not here | No plain error: retreat not placed at issue and jury received full self-defense instructions |
| Ineffective assistance of counsel (multiple claims: failure to suppress hospital statement, failure to request mutual-combat or no-duty-to-retreat instructions, failure to object to alcoholism charge and verdict form) | Counsel erred in foregoing suppression, not pursuing instructions, not objecting to charges/verdict form, cumulatively prejudicial | Counsel’s choices were reasonable strategy or the motions/objections lacked merit; defendant failed to show deficient performance or prejudice | Ineffective-assistance claims rejected; strategic choices reasonable and no reasonable probability of different result |
| Sentencing/formal vacation of felony-murder count | Trial court did not enter separate order vacating felony-murder sentence after modification/merger | Felony-murder should be vacated by operation of law; incorrect nomenclature (merged vs vacated) does not change sentence | Court concedes felony-murder should be vacated by operation of law but finds no sentencing error requiring correction |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong standard)
- Benton v. State, 305 Ga. 242 (malice can form in an instant; jury decision on malice)
- Merritt v. State, 292 Ga. 327 (words alone generally insufficient provocation for voluntary manslaughter)
- White v. State, 291 Ga. 7 (no-duty-to-retreat instruction required only if retreat is placed in issue)
- Higginbotham v. State, 287 Ga. 187 (same: retreat instruction not warranted when not raised by evidence)
- Manner v. State, 302 Ga. 877 (felony-murder vacated by operation of law vs. merged)
- Atkins v. State, 310 Ga. 246 (verdict form reviewed with jury instructions; lesser-included need not appear on form if properly instructed)