Kelly Hickson was indicted for malice murder and related offenses for fatally shooting another man in the parking lot of an adult strip club. Hickson was tried before a jury, which acquitted him of the malice murder charge and of voluntary manslaughter as a lesser included offense of malice murder, but was unable to reach a verdict on the remаining charges. Following a second jury trial, Hickson was convicted of voluntary manslaughter as a lesser included offense of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On appeal from the denial оf his motion for new trial, Hickson contends that the trial court erred in admitting evidence of similar transactions in which he brandished a pistol during a verbal altercation; in admitting a certified felony conviction that listed the name of the defendant as “John O’Neal Jones”; and in charging the jury on voluntary manslaughter, given his acquittal of that offense in the first triаl. He also argues that his defense counsel was ineffective for requesting a jury charge on voluntary manslaughter in the second trial. Lastly, Hick-son maintains that the trial court imposed a sentence upon him that failed to comport with the jury’s verdict. For the reasons discussed below, we affirm the judgments of conviction but remand with direction that the trial court correct the scrivener’s errors contained in the sentence.
“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict.”
Martinez v. State,
In the first trial, the jury acquitted Hickson of malice murder and of the lesser included offense of voluntary manslaughter but deadlocked on the remaining counts of the indictment. The trial court granted a mistrial on the remaining сharges, and the State filed an amended indictment that removed the count for malice murder.
At the second trial, Hickson testified that during the confrontation in the parking lot, the victim grabbed him and then one of the victim’s friends pulled out a gun, leading Hickson to fear that the victim and his friends were going to attack him with deadly force. In contrast, the victim’s twо friends testified that neither they nor the victim was armed that night. Other witnesses similarly testified that they did not see the victim or his friends with any firearms and did not see them act in a physically threatening manner toward Hickson. There also was testimony that no firearms, other than the one linked to Hickson, were recovered from the parking lot by police investigаtors. Additionally, in order to show Hickson’s course of conduct and bent of mind, the State presented evidence of prior instances in which Hickson had brandished a pistol during verbal altercations with other individuals.
Following the close of the evidence, the trial court charged the jury on, among other things, the affirmative defense of self-defеnse. The trial court also charged the jury on voluntary manslaughter as a lesser included offense of the felony murder counts, at Hickson’s request.
The jury acquitted Hickson of the two counts of felony murder but found him guilty of voluntary manslaughter as a lesser included offense of those counts. The jury also found him guilty of aggravated assault with a deadly weaрon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Hickson moved for a new trial, and the trial court denied the motion. This appeal followed.
1. The evidence adduced at the second trial was sufficient to enable any rational trier of fact to determine that Hickson did not act in self-defense and that he was guilty beyond a reasonable doubt of the crimes for which he was convicted.
Jackson v. Virginia,
2. Hickson complains that the trial court erred in admitting similar transaction evidence. Before the State can introduce similar transaction evidence, the trial court must conduct a hearing under Uniform Superior Court Rule 31.3 (B), and the State must make three affirmative showings as to each prior act. See
Williams v. State,
First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.
(Citations and footnote omitted.)
Davis v. State,
Here, the similar transaction evidence showed that in December 2003, Hickson pointed a handgun at the brother of his former girlfriend during a verbal altercation. Then, in February 2004, Hickson pulled out a handgun and struck his former girlfriend in the head with it during a quarrel. In July 2005, Hickson again pulled out a handgun while arguing with his former girlfriend. The State offered this evidence to show Hickson’s course of conduct and bent of mind.
Hickson does not contest that the State met the first two prongs of the similar transaction test, i.e., that the evidence was introduced for an appropriate purpose and that there was sufficient evidence that he committed the other handgun incidents. Focusing on the third prong, he asserts that the three handgun incidents were too dissimilar to the crimes charged such that proof of the former did not tend to prove the latter. We are unpersuaded. The three incidents all
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involved circumstances in which Hickson pulled out a handgun during a verbal altercation, thereby demonstrating his “propensity to settle disagreements with a gun, to act violently and impulsively to disappointment or misunderstanding, and to resort to the use of a gun with little provocation.”
Davis,
3. Hickson next argues that the trial court erred in allowing the State to introduce a certified felony conviction that listed the name of the defendant as “John O’Neal Jones” to prove he was a convicted felon in possession of a firearm. Hickson further argues that because the cеrtified felony conviction was inadmissible, the trial court should have granted his motion for a directed verdict of acquittal on the charge of possession of a firearm by a convicted felon. 2
Hickson’s arguments are without merit. The record clearly shows that Hickson admitted during his cross-examination by the State that he used the fake name “John O’Neal Jones” when he was arrested for the prior felony offense and conceded that he was the *54 individual named in the certified felony conviction. It follows that the trial court did not err in admitting the certified felony conviction or in denying Hickson’s motion for a directed verdict of acquittal.
4. Hickson maintains that the trial court errеd in charging the jury on voluntary manslaughter as a lesser included offense of felony murder in the second trial, in light of his acquittal of voluntary manslaughter as a lesser included offense of malice murder in the first trial. He contends that charging the jury on voluntary manslaughter, and his resulting conviction for that offense, violated due process and double jeоpardy principles. We disagree under the circumstances of this case. As previously noted, Hickson requested the charge on voluntary manslaughter in the second trial. Thus, he cannot complain on appeal that the trial court delivered such a charge. See
Gooch v. State,
5. Hickson also contends that his trial counsel was ineffective for requesting the jury charge on voluntary manslaughter in the second trial.
The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsеl’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.
(Citation and punctuation omitted.)
Martinez,
Hickson’s trial counsel did not testify at the hearing on the motion for a new trial, so we must presume that counsel’s decision to request the charge on voluntary manslaughter was strategic. See
Johnson,
“[Decisions about which jury charges to request are strategic and provide no grounds for reversal unless such tactical deсisions are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.)
Armstrong v. State,
6. Lastly, Hickson argues that the trial court imposed a sentence upon him that did not comport with the jury’s verdict. We conclude that the written sentences contain scrivener’s errors that should be corrected on remand.
At the sentencing hearing, the triаl court orally pronounced that Hickson’s sentence would be twenty years to serve on Count 1 (voluntary manslaughter as a lesser included offense of felony *56 murder); five years to serve on Count 4 (possession of a firearm during the commission of a felony), to run consecutive to Count 1; and two years to serve on Count 5 (possession of а firearm by a convicted felon), to run concurrent with Count 1. The trial court further pronounced that Hickson’s convictions on Count 2 (voluntary manslaughter as a lesser included offense of felony murder) and Count 3 (aggravated assault with a deadly weapon) would be merged into Count 1 for purposes of sentencing.
The trial court’s pronouncement of Hickson’s sentence was consistent with the jury’s verdict. The written sentences subsequently entered by the trial court, however, are not consistent with the court’s oral pronouncement because they appear to reference the six counts found in the original indictment, rathеr than the five counts found in the indictment as amended after the first trial. Specifically, the written sentence for Count 1, labeled “Murder,” is marked “Not Guilty” and provides no sentence relating to that count. The written sentences for the remaining Counts 2-6 reflect the sentences the trial court orally pronounced on Counts 1-5 of the amended indictmеnt; additionally, the written sentence for Count 2 indicates that Hickson was found guilty of both felony murder and the lesser included offense of voluntary manslaughter.
The written sentences plainly do not conform to the trial court’s intentions as expressed at the sentencing hearing and appear to be misnumbered as the result of scrivener’s errors. Under these circumstances, we remand the case for the trial court to correct the errors in the written sentences. See
Chaney v. State,
Judgment affirmed and case remanded with direction.
Notes
Although somewhat unclear from his brief, Hickson also appears to contend that the Georgia evidentiary rule for similar transaction evidence “violates the due process provision of the United States Constitution.” He cites no legal authority to support this broad contention. Furthermore, the three-pronged evidentiary rule applicable in Georgia is based on binding precedent of the Supreme Court of Georgia, see
Williams,
For the same reason, Hickson argues that the trial court should have granted his motion for a directed verdict of acquittal on the felony murder count in which possession of a firearm by a convicted felon was alleged as the underlying felony. But Hickson was acquitted of felony murder, and so he cannot show harm resulting from the trial court’s failure to grant him a directed verdict on that count. “There is no remedy for error without harm.” (Citation and punctuation omitted.)
Hayes v. State,