Wilhite v. the State
337 Ga. App. 324
| Ga. Ct. App. | 2016Background
- Victim (seven months pregnant) was assaulted at home: attacker exposed himself, chased and forced her down, threatened to kill her and her child, ripped off her underwear, and anally penetrated her; DNA matched appellant David Wilhite.
- Physical evidence included a torn/bent window screen inconsistent with brother’s earlier statement that it was intact.
- Wilhite was convicted by a jury of aggravated sodomy, burglary, and terroristic threats; he filed a motion for new trial which was denied, and he appeals that denial.
- On appeal Wilhite raised (1) ineffective assistance of counsel for failing to object to several jury charges, (2) juror incompetence due to alleged hearing difficulty and counsel’s failure to challenge it, and (3) a fatal variance between the burglary indictment address and the proof at trial.
- The trial court and Court of Appeals reviewed the charge language in context, counsel’s voir dire handling of Juror No. 2’s hearing remark, and whether the indictment variance affected substantial rights.
Issues
| Issue | Wilhite's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance — jury instructions (credibility/conflict language) | Trial counsel should have objected to instructions that he says urged jurors to resolve conflicts without thinking witnesses lied | The charge tracked then-current Pattern Instructions; Supreme Court precedent permits it and it did not shift burden or presume truth | Not erroneous; no prejudice; IAC claim fails |
| Ineffective assistance — impeachment / single-witness language omitted | Counsel should have objected when the court did not include certain Pattern Charge impeachment language and the qualifier for single-witness sufficiency | The full charge, read as a whole, adequately instructed jury on impeachment and credibility; omission caused no prejudice | No prejudice shown; IAC claim fails |
| Juror competence / hearing problem & counsel performance | A juror said she couldn’t hear well; Wilhite argues the court should have held an evidentiary hearing and counsel should have litigated juror’s competency | Voir dire showed juror could answer questions and counsel tested her hearing; counsel had notice and opportunity to object; tactical choices are generally non-erroneous | Court did not abuse discretion; no deficient performance shown |
| Fatal variance — burglary location | Indictment named victim’s dwelling on Velma Court but proof showed crime occurred at Spring Point; variance is fatal and undermines conviction | The specific address is not an element; defendant was not surprised and cannot be reprosecuted on those facts; variance not material to substantial rights | Variance not fatal; conviction stands |
Key Cases Cited
- Whatley v. State, 270 Ga. 296 (1998) (use of conflict/credibility charge not unconstitutional or reversible error)
- Rai v. State, 297 Ga. 472 (2015) (same conflict/credibility instruction not a presumption-of-truth charge)
- Pruitt v. State, 282 Ga. 30 (ineffective assistance two-prong prejudice/performance standard)
- Gathuru v. State, 291 Ga. App. 178 (IAC claim re: jury charges requires showing charges erroneous and prejudicial)
- Chambers v. State, 284 Ga. App. 400 (fatal-variance review focuses on materiality and substantial rights)
- State v. Jackson, 290 Ga. App. 250 (facts introduced at first trial bar second prosecution despite faulty indictment)
- Hood v. Carsten, 267 Ga. 579 (due process requires notice and opportunity to be heard)
- Ware v. State, 321 Ga. App. 640 (strategic juror-selection decisions generally not ineffective assistance)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)