739 S.E.2d 722 | Ga. Ct. App. | 2013
Timothy Hutto was indicted on one count each of murder,
1. Hutto contends that the evidence was insufficient to support his conviction for voluntary manslaughter. Hutto argues that the evidence shows that he acted in self-defense and that there was no evidence of provocation or passion. We disagree.
When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.5
Viewed in the light most favorable to the jury’s verdict,
On November 13, 1999, Hutto and Smith got into an altercation in a bar, and Hutto was kicked out. The following night, Hutto, Mashburn, Mike Edenfield and three others went to the home of Pamela Crocker to look for Edenfield’s wife. Smith and several friends were at Crocker’s house playing cards at the time. When they arrived, Edenfield and Mashburn entered the house while Hutto stood outside. Edenfield was arguing with his wife as Mashburn stood at the front door. From outside, Hutto began yelling “[c]ome get you some ..., come get you some” at Smith. After being advised not to go
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.7
We have held that “heated arguments, physical beatings, and fear of some danger” present sufficient provocation for a voluntary manslaughter conviction.
Based on the evidence presented, the jury was authorized to reject Hutto’s theory of self-defense and conclude that Hutto “was so influenced and excited that he reacted passionately rather than simply to defend himself” when he stabbed an unarmed Smith.
2. In related enumerations of error, Hutto contends that the trial court erred in charging the jury on mutual combat and that his trial counsel was ineffective for failing to object to the charge.
Furthermore, the evidence shows that Hutto had a knife and that Smith was unarmed during the fight. Because “a charge on mutual combat enables a jury to find a criminal defendant guilty of voluntary manslaughter in lieu of murder . . . the mutual combat charge could only have benefitted [Hutto].”
(b) Hutto contends that his trial counsel was ineffective for failing to object to the mutual combat charge. We disagree.
To prevail on a claim of ineffective assistance, [Hutto] must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if [Hutto] has made an insufficient showing on either prong.18
Because the mutual combat charge was not erroneous, Hutto cannot show that trial counsel’s performance was deficient for failing to object to it.
3. In related enumerations of error, Hutto contends that the trial court erred in “sua sponte keeping out evidence” of Smith’s level of intoxication, and that his trial counsel was ineffective for failing to object to this alleged error. In support of this assertion, Hutto refers to the trial judge’s comments to the audience in the courtroom during sentencing as he was pointing out the correlation between alcohol abuse and violent crime. Specifically, the trial judge stated “[w]hat the jury didn’t see, because it wasn’t relevant, is that the victim in this case was .08.” However, there is nothing in the record to indicate that Hutto sought to introduce evidence of Smith’s level of intoxication at trial or that the trial court took any action or made any ruling to exclude such evidence during the trial. It is well settled that “this [C]ourt may not address issues on appeal which were not addressed by the trial court, because this [C]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.”
Further, as the trial court’s comments regarding Smith’s intoxication were made after the return of the verdicts and the dismissal of the jury, and the trial court did not take any action to exclude such evidence during the trial, any objection to the comments or the perceived exclusion of evidence would have been futile. It is well settled that “[t]he failure to make a meritless objection is not evidence of ineffective assistance.”
Hutto also contends that his counsel was ineffective for failing to present evidence that a causal connection existed between Smith’s intoxication and his behavior at the time of the incident. Hutto concedes that his trial counsel did not testify at the motion for new trial. When considering an ineffective assistance claim,
there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.23
Further, trial counsel’s decisions about “what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.”
4. Hutto next contends that his trial counsel was ineffective for failing to object to the jury charge on voluntary manslaughter. In this case, the charge on voluntary manslaughter was given in connection with the charge on mutual combat, which set out in part:
If you find that there was a mutual intention on both the part of the deceased and the defendant to enter into a fight or*241 mutual combat, and that under these circumstances the defendant killed the deceased, then ordinarily such killing would voluntarily manslaughter [sic], and this would be true regardless of which of them struck the first blow.
As the charge on voluntary manslaughter was authorized by the evidence and given in connection with the charge on mutual combat, Hutto cannot show that trial counsel’s performance was deficient for failing to object to it.
Judgment affirmed.
OCGA § 16-5-1 (a).
OCGA § 16-5-21 (a).
OCGA § 16-5-1 (c).
OCGA § 16-5-2 (a). Hutto was found not guilty of aggravated assault and felony murder.
(Citations and punctuation omitted; emphasis in original.) Williamson v. State, 315 Ga. App. 421, 422 (1) (727 SE2d 211) (2012).
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
OCGA § 16-5-2 (a). Accord Mullins v. State, 270 Ga. App. 271, 276 (4) (605 SE2d 913) (2004).
(Footnotes omitted.) Williams v. State, 245 Ga. App. 670, 671-672 (1) (538 SE2d 544) (2000).
Thomas v. State, 296 Ga. App. 231, 234 (1) (674 SE2d 96) (2009) (evidence of hostile encounters between defendant and the victim authorized the jury to conclude that defendant shot the victim as a result of sudden passion, rather than out of necessity to protect himself).
(Citations and punctuation omitted.) Crane v. State, 300 Ga. App. 450, 452 (1) (685 SE2d 314) (2009); Williams, supra at 671 (1).
285 Ga. 718, 722-723 (4) (b) (681 SE2d 141) (2009) (“A charge on mutual combat is warranted only when the combatants are armed with deadly weapons and mutually agree to fight”) (citation and punctuation omitted.). Accord Hudson v. State, 280 Ga. 123, 124 (2) (623 SE2d 497) (2005).
(Citations omitted.) White v. State, 287 Ga. 713, 723 (4) (c) (699 SE2d 291) (2010).
See id. at 724 (4) (c).
Sinkfield v. State, 266 Ga. 726, 727 (2) (470 SE2d 649) (1996).
Id. Accord Hall v. State, 273 Ga. App. 203, 205 (3) (614 SE2d 844) (2005).
(Citation omitted.) Jones v. State, 287 Ga. 770, 771 (2) (700 SE2d 350) (2010).
See White, supra at 724 (4) (c).
(Citation and punctuation omitted.) Anthony i>. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
See Crawford v. State, 314 Ga. App. 796, 799 (7) (b) (726 SE2d 58) (2012).
Id.
(Citation and punctuation omitted.) Mormon-Johnson v. Hathaway, 312 Ga. App. 300, 301 (1) (718 SE2d 132) (2011).
(Citations omitted.) Scott v. State, 290 Ga. 883, 889 (7) (a) (725 SE2d 305) (2012).
(Citation and punctuation omitted.) Wilson v. State, 2T1 Ga. 195, 200 (586 SE2d 669) (2003).
(Citation and punctuation omitted.) Smith v. State, 316 Ga. App. 175,179 (2) (728 SE2d 808) (2012).
(Citations omitted.) Fields v. State, 311 Ga. App. 528, 531 (1) (716 SE2d 587) (2011).
Id.
Crawford, supra at 799 (7) (b).
Id.