HINTON v. THE STATE.
S18A0804
Supreme Court of Georgia
October 22, 2018
304 Ga. 605
WARREN, Justice.
FINAL COPY
Patrick Hinton was found guilty of felony murder and other crimes in connection with the May 2013 shooting death of Henry Omar Reeves. On appeal, Hinton contends that his trial counsel rendered ineffective assistance by failing to renew a request for a voluntary manslaughter jury instruction, and that the trial court erred by failing to merge two of his sentences. Finding no error, we affirm.1
1.
Viewed in the light most favorable to the jury‘s verdict, the evidence presented at Hinton‘s trial showed that on May 18, 2013, Hinton needed money and initially planned to rob attendees of a beer festival in East Atlanta of iPhones; he advised at least two friends of his general plan to commit robbery. But his plan changed, and instead Hinton and Isaac McCullough decided to rob Reeves, a marijuana dealer they knew. Hinton also told at least one friend about his plan to rob Reeves. That night, Hinton and McCullough lay in wait in the bushes outside of Reeves‘s house with the intent to rob Reeves at gunpoint. Shortly before the killing occurred, Hinton texted a friend that Hinton was “Lurkn,” which testimony at trial confirmed to be a slang term for lying in wait to rob someone. When Reeves arrived home, Hinton and McCullough emerged from their hiding place and ambushed him. Neighbors heard shots around midnight and saw Reeves stumble and fall into the street; he was already dead from a gunshot wound to the chest when police arrived.
Hinton, meanwhile, had been shot in the back during the incident—apparently by McCullough by accident. Friends picked up Hinton and McCullough and dropped them off at Grady Hospital. The bullet removed
When the case was tried, Hinton‘s counsel requested a jury charge on voluntary manslaughter. The trial court denied the request, finding there was no evidence to support the charge. Trial counsel did not renew the request after the jury was charged.
Although Hinton has not challenged the sufficiency of the evidence supporting his convictions, it is our customary practice to review the sufficiency of the evidence in murder cases, and we have done so here. After reviewing the record of Hinton‘s trial, we conclude that the evidence presented against him was sufficient to authorize a rational jury to find beyond a reasonable doubt that Hinton was guilty of the crimes of which he was
2.
Hinton contends that his trial counsel rendered ineffective assistance by failing to renew a request for a jury instruction on voluntary manslaughter. Because Hinton has not shown that any alleged deficiency in counsel‘s performance was prejudicial, his claim fails.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U. S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U. S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of
Assuming, without deciding, that counsel‘s failure to renew the request for a jury instruction on voluntary manslaughter was deficient, Hinton still has not established prejudice2 — “a reasonable probability the jury would have reached a verdict of guilty of voluntary manslaughter” if that charge had been given. Wadley v. State, 258 Ga. 465, 466 (369 SE2d 734) (1988) (emphasis in original); see also Blackwell v. State, 302 Ga. 820, 827 (809 SE2d 727) (2018).
In Wadley v. State, an appellant also raised a claim of ineffective assistance based on counsel‘s failure to preserve for appeal the issue of a voluntary manslaughter jury instruction that was requested and denied. 258 Ga. at 465-466. There, the Court assumed, without deciding, that there was some evidence to authorize a charge on voluntary manslaughter. It then assessed only Strickland‘s second prong and concluded that there was no prejudice—that is, no reasonable probability of a different result at trial — because the evidence “hardly raise[d] a reasonable probability that a jury would return a verdict of voluntary manslaughter” for the defendant, even assuming there was “enough evidence to authorize a charge” in the first place. Id. at 466. See also, e.g., Blackwell, 302 Ga. at 827 (“Any such slight evidence of voluntary manslaughter was insufficient, especially in light of the strong evidence of Blackwell‘s guilt of malice murder, to establish a reasonable probability that the jury would have returned a guilty verdict on voluntary manslaughter rather than murder.“); Darville v. State, 289 Ga. 698, 701-702 (715 SE2d 110) (2011) (“While this evidence may have been sufficient to authorize a jury charge on voluntary manslaughter, we find it was insufficient under the test applicable to claims of ineffective assistance of counsel to establish a reasonable probability that the jury would have returned a verdict of guilty of voluntary manslaughter.“).
So too here. Even assuming, dubiously, that some evidence was presented at Hinton‘s trial to support a charge of voluntary manslaughter, that
3.
Hinton also contends that because his convictions arose from a single transaction, the trial court erred when it sentenced him for attempted armed robbery instead of first merging his aggravated assault count into his attempted armed robbery count, which would then merge into a single felony murder conviction. Hinton is incorrect.
In cases like this one, where a defendant is found guilty on multiple counts of felony murder against the same victim, “the decision as to which of the felony murder verdicts should be deemed vacated — a decision that may affect which other verdicts merge and thus what other sentences may be imposed — is left to the discretion of the trial court.” Cowart v. State, 294 Ga. 333, 336 (751 SE2d 399) (2013); see also Davis v. State, 301 Ga. 397, 404 n.7 (801 SE2d 897) (2017); McClellan v. State, 274 Ga. 819, 821 (561 SE2d 82) (2002). And if, in exercising that discretion, the trial court elects to sentence the defendant on a felony murder count predicated on one crime, then “it must also sentence him” on any remaining crime that served as a predicate to a vacated felony murder count when the other crime does not merge with the felony murder conviction on which a sentence was entered. Davis, 301 Ga. at 404 n.7; see also Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006) (two crimes do not merge if each crime “requires proof of a fact which the other does not” (punctuation omitted)).
Here, the trial court acted within its discretion when it chose to sentence Hinton on the felony murder conviction predicated on aggravated assault. It then properly merged the underlying aggravated assault count into the felony murder conviction predicated on aggravated assault and vacated the felony murder count predicated on criminal attempt to commit armed robbery. At that point, Hinton‘s conviction for attempted armed robbery did not merge with his sentence for felony murder predicated on aggravated assault. That is because the crime of felony murder predicated on aggravated assault required proof of an element — “the death of another human being,”
Judgment affirmed. All the Justices concur.
Murder. DeKalb Superior Court. Before Judge Barrie.
Tyler R. Conklin, for appellant.
Sherry Boston, District Attorney, Anna G. Cross, Roderick B. Wilkerson, Aimee F. Sobhani, Shannon E. Hodder, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.