Joe Elvin Cloud appeals his convictions for the malice murder of Rocky Heard (“Rocky”), the aggravated assault of Ray Dean Heard (“Ray Dean”), possession of a firearm during the commission of the crime of aggravated assault, affray, and simple battery.
Construed to support the verdicts, the evidence showed that on August 29, 2005, Cloud was driving his pickup truck, in which a business associate, Mike Maugeri, was a passenger. Cloud nearly had a collision with a vehicle driven by the wife of Ray Dean, in which their daughter, Courtney' Heard (“Courtney”), was a passenger. Courtney made an obscene gesture toward Cloud, which he returned. Cloud entered a parking lot, and the Heards followed. Cloud exited his truck and approached the Heards’ vehicle; angry words were exchanged, and Cloud reached into the Heards’ vehicle and slapped Courtney on the face. Courtney’s mother went into a restaurant to telephone law enforcement officers, and Cloud drove away, leaving Maugeri behind.
Ray Dean learned of the incident later that day, and sought out Cloud, going to Maugeri’s home and contacting a relative of Cloud’s, but was unable to locate him. Ray Dean said that he was going to “put some knots on [Cloud’s] head,” that he had “slapped the wrong man’s daughter.”
On the morning of August 31, 2005, Ray Dean drove his vehicle, in which Rocky and Ray Dean’s employee, John Easom, were passengers, to a convenience store that also served as a gas station, and parked outside the store. The three men went into the store and, after a few minutes, Cloud drove his truck, with Maugeri as a passenger and pulling a utility trailer, next to the gas pumps, and stopped. Rocky and Ray Dean recognized Maugeri, saw that Cloud’s truck resembled the one involved in the incident with Courtney, and concluded that Cloud was the man who slapped her. Easom exited the store and went to Ray Dean’s vehicle. Cloud began to pump gas, and Maugeri went inside the store. Ray Dean and Rocky exited the store and went to Ray Dean’s vehicle; as they walked, Cloud stared at Ray Dean. Ray Dean, while walking, said that he knew who Cloud was, and that “one day” he would “put some knots on” Cloud’s head. In profane terms, Cloud asked why the present day would not suffice.
At trial, Cloud argued that he was justified in firing the two shots as he had been defending himself.
1. The evidence was sufficient to enable a rational trier of fact to find Cloud guilty beyond a reasonable doubt of all the crimes of which he was convicted. Jackson v. Virginia,
2. Cloud sought to introduce evidence of prior acts of violence by Rocky and Ray Dean against third parties. Cloud contends that the trial court erred in ruling that Cloud had not met his burden for the introduction of such evidence.
Evidence of a victim’s specific acts of violence against third parties is admissible when a defendant claims justification and makes a prima facie showing thereof, follows procedural requirements, and establishes the existence of the prior violent acts by competent evidence.
Arnold v. State,
To make a prima facie showing of justification so as to allow evidence of violent acts by the victim against third parties, “the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself.” [Cit.]
Stobbart v. State,
The trial court specifically found that Cloud had not met his burden to show that he was honestly trying to defend himself. This was not error. Cloud asserts that he fired because he did not know why the victims were running to their vehicle and that they could have been returning to it to secure a weapon. However, there was no evidence that the victims had any sort of weapons upon their persons, or in their vehicle, and Cloud certainly had not seen any weapon. Compare Stobbart, supra. Justification cannot be based on an assault which has ended, Collier v. State,
3. Citing Edge v. State,
Our holding in Edge disapproved use of the “sequential charge” in those cases where the jury’s task is to determine if the homicide is felony murder or voluntary manslaughter. In such a case the “sequential” charge prevents the jury from fully considering voluntary manslaughter, because if the jury determines that the defendant committed felony murder, “it would not then go on to consider evidence of provocation or passion which might authorize a verdict for voluntary manslaughter.” [Cit.]
Terry v. State,
4. Cloud claims that his trial counsel failed to provide effective representation by not advising him of his right not to testify at trial. In order to prevail on this claim, he must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
“Whether to testify in his own behalf is a decision for a defendant to make after full consultation with counsel. [Cit.]” Hamilton v. State,
Cloud testified that counsel never told him that it was his decision whether to testify, and that he believed counsel would make that decision; on cross-examination, Cloud stated that he could not be positive that counsel had not, in fact, advised him that the decision whether to testify was his. Further, at trial, Cloud testified that the decision that he testify had only been made that morning, and that in meeting with counsel the previous night “[w]e decided not to.” The trial court specifically found that Cloud failed to present any credible evidence that counsel failed to advise him that the decision to testify was his. The trial court did not err in determining that Cloud was advised of his right not to testify. See Robinson, supra.
Judgments affirmed in part and vacated in part.
Notes
The shootings occurred on August 31,2005. On October 25, 2005, a Miller County grand jury indicted Cloud for malice murder, felony murder while in the commission of aggravated assault upon Rocky Heard, the felony murder of Rocky Heard while in the commission of aggravated assault upon Ray Dean Heard, the aggravated assault of Rocky Heard, the aggravated assault of Ray Dean Heard, possession of a firearm during the commission of a crime, and two counts of affray; he was also indicted for one count of simple battery for slapping Courtney Heard on August 29, 2005. Cloud was tried before a jury January 31-February 3, 2006, and was found not guilty of one count of affray, and guilty of all other charges. On March 6, 2006, the trial court sentenced Cloud to life in prison for malice murder; a term of 20 years in prison for the aggravated assault of Rocky Heard, with 10 of those years to be served consecutively to the life sentence; a term of 20 years in prison for the aggravated assault of Ray Dean Heard, with 10 of those years to be served concurrently with the sentence for the aggravated assault of Rocky Heard; five years in prison for possession of a firearm during the commission of a crime, to be served consecutively to the life term; twelve months in prison for affray, to be served concurrently with the life term; and twelve months in prison for simple battery, to be served concurrently with the life term. The guilty verdicts for the felony murders stood vacated by operation of law. Malcolm v. State,
Maugeri testified that Ray Dean said that he was going to “f ing kill [Cloud],” and said
In his statement to police, Cloud admitted that he “may not should have egged that on.”
Cloud did not ordinarily have a shotgun in his truck, but had placed one there after the encounter with Courtney.
Cloud’s first shot struck Rocky, and was the basis for the malice murder conviction. Although Rocky was still alive at the time of the second shot, Cloud’s own testimony, his statement to investigating law enforcement officers, and the physical evidence established that he directed that shot at Ray Dean.
Similarly, the verdict form showed voluntary manslaughter as an alternative to each of the murder charges, and in no way suggested the improper “sequential” consideration disapproved in Edge.
Counsel also testified that he was surprised to find that the trial transcript did not contain a recitation of the court’s advising Cloud regarding his right to testify or not, as the judge who presided over the trial “always” did that in criminal cases.