KING v. THE STATE
S18A0824
Supreme Court of Georgia
August 27, 2018
304 Ga. 349
BLACKWELL, Justice
Albert Lee King was tried by a Twiggs County jury and convicted of murder and aggravated assault in connection with the death of Lelia Mae Huston. King appeals, asserting that the evidence is insufficient to sustain his conviction for aggravated assault and that he was denied the effective assistance of counsel. We affirm.1
1. Viewed in the light most favorable to the verdicts, the evidence shows
that Huston and King were neighbors. On September 10, 2003, Huston’s husband came home from work and found her dead, lying in the yard and covered by a blanket. A forensic pathologist conducted an autopsy and determined that Huston died as a result of asphyxiation by strangulation. The pathologist also determined that Huston had sustained two head injuries — one near the forehead, and the other
Investigators interviewed King, who at first denied knowing anything about Huston’s death. In a subsequent interview, however, King gave a statement in which he admitted that he killed Huston.2 In his statement, King explained that he had gone to Huston’s house on the morning of September 10 and asked if he could use her bathroom. Huston let King into the house, and as he walked to the bathroom, he observed her purse on a counter. When he came back out of the bathroom, he noticed that the purse was gone. Huston emerged from her bedroom, accused King of stealing $1,300 from her purse, and proceeded to pat down King’s pockets. King denied that he had seen or taken any money, and he pushed her away “in a forceful manner,” causing her to fall back and strike her head against some object. Huston stood up, demanded her money, and threatened to call the police. King then punched Huston in the jaw. At that point, Huston ran out the back door, and King gave chase. Huston fell as she ran into the yard, King jumped on top of her, and they began to struggle. King eventually used his “do rag” and right arm to choke Huston until she stopped moving. He then covered her body with a blanket and returned home.
King does not dispute that the evidence is sufficient to sustain his conviction for murder by strangulation, but he contends that the State failed to prove beyond a reasonable doubt that he committed an aggravated assault by striking Huston about the head with a “deadly weapon or . . . any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”
(“It is clear that even in the absence of the production or verbal description of the weapon used, evidence as to the nature, kind and location of the wounds inflicted by the assailant is sufficient to allow the jury to infer the character of the weapon.” (Citation and punctuation omitted)). Viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find beyond a reasonable doubt that King was guilty of murder and aggravated assault. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. King also contends that he was denied the effective assistance of counsel when his trial counsel failed to request a jury charge on justification. King was represented
motion for new trial, any claims of ineffective assistance by trial counsel not raised at that time are waived.” (Citation and punctuation omitted)).
In an effort to escape this procedural bar, King argues that his original post-conviction counsel was ineffective for failing to assert on motion for new trial that his trial counsel was ineffective for failing to seek a justification charge. But we have held before that a forfeited claim of trial counsel ineffectiveness cannot be resurrected by bootstrapping it to a claim of post-conviction counsel ineffectiveness. See Wilson, 286 Ga. at 145 (4). As we have explained, indulging such bootstrapping “would eviscerate the fundamental rule that ineffectiveness claims must be raised at the earliest practicable moment” and would “promote serial appellate proceedings.” Id. (Citation and punctuation omitted). If King wishes to pursue a claim that his post-conviction counsel was ineffective in this regard, he must do so through a petition for a writ of habeas corpus. See id. See also Smart v. State, 299 Ga. 414, 423-424 (5) (788 SE2d 442) (2016).
Judgment affirmed. Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Boggs, and Peterson, JJ., concur.
Decided August 27, 2018.
Murder. Twiggs Superior Court. Before Judge Gillis.
David J. Walker, for appellant.
L. Craig Fraser, District Attorney, Peter F. Larsen, Sr., Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.