Jeffrey v. State

296 Ga. 713

770 S.E.2d 585

JEFFREY

v.The STATE.

No. S14A1418.

Supreme Court of Georgia.

March 16, 2015.

Brian Steel, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Michael Alexander Oldham, Asst. Atty. Gen., Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., Kathryn L. Powers, Asst. Dist. Atty., for appellee.

Opinion

HUNSTEIN, Justice.

Appellant Wisdom Jeffrey was convicted of murder and related crimes in connection with the August 2010 shooting death of his wife. Jeffrey appeals, arguing in his sole enumeration of error that his trial counsel rendered ineffective assistance by failing to request a jury instruction on the lesser included offense of voluntary manslaughter.

Though we find no error in the verdicts, we do find error with respect to the trial court's merger of some offenses, and we therefore must vacate and remand to the trial court for proper merger and resentencing.¹

Viewed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. Jeffrey's wife, Corrissa Friends Jeffrey, was shot and killed in the early morning hours of August 11, 2010 in her Clayton County apartment. Jeffrey and the victim had begun dating in 2007, moved in together in 2008, and married in 2009, shortly after the victim gave birth to a daughter. The couple's relationship was tumultuous, with both Jeffrey and the victim accusing each other of infidelity.

Ashley Layfield, the victim's best friend, testified to witnessing arguments between the couple and, on one occasion, to observing the victim with a swollen eye, which the victim admitted Jeffrey had caused. Layfield further testified that in April 2010, she received a call from the victim and overheard in the background an altercation between the couple during which Layfield heard the victim tell Jeffrey to “get off of me” and “stop it ... this hurts.” The next morning, the victim told Layfield that Jeffrey was “boxing her like a man” and “bashing her head into the couch,” and that afterward he refused her pleas to go to the hospital. The victim confided to Layfield that she feared for her life.

The victim's uncle testified that on one occasion in 2010 he had observed the victim with a black eye and scratches on her neck and shoulder and that the victim reluctantly admitted that Jeffrey had hit her. The uncle also testified that Jeffrey owned a shotgun, which the uncle saw at the couple's apartment.

A neighbor of the couple testified that, in June 2010, he witnessed Jeffrey dragging the victim through the apartment complex parking lot by her hair and punching her in the face. The neighbor intervened, the victim ran away, Jeffrey threatened the neighbor while appearing to reach for something in his pants, and the neighbor called the police. Police arrived and arrested Jeffrey for family violence battery; Jeffrey was later released on bond, a condition of which was that he have no contact with the victim.

On August 10, 2010, Jeffrey contacted the victim's grandmother and told her, in an agitated state, that he believed the victim was being unfaithful and their daughter had been conceived by another man. Also on that day, Jeffrey contacted his friend Keisha McZick and expressed concern that he had not seen the victim in a few days.

Around 11:00 p.m. on August 10, shortly after the victim had left her place of employment, a male co-worker saw a man knock on the front door of the office building and walk away when no one opened the door. Shortly after midnight, police responded to a 911 call from the victim at her apartment and found Jeffrey there. Jeffrey acknowledged he was bound by a no-contact order, and the officer escorted Jeffrey away but did not arrest him. Approximately an hour later, police were again dispatched to the apartment and arrived to discover the victim shot dead in the bedroom. No one else was present in the apartment when police arrived.

At approximately 3:00 a.m., Jeffrey appeared at McZick's home seeking shelter and food. McZick, who by this time knew that there had been “an incident,” did not allow Jeffrey into her home, but she did give him food and a cell phone.

A neighbor in the apartments testified that he heard several “pops” in the early morning hours of August 11. He also testified that Jeffrey's vehicle had been parked in the parking lot during the day of August 10 and that the vehicle was not in the lot the following morning.

A search of the crime scene uncovered shotgun pellets and casings. A crime scene expert concluded that the shots had been fired while the shooter was advancing on the victim. A pump-action shotgun was also found in the apartment and was later determined to have fired the pellets removed from the victim during the autopsy. Blood on the gun matched that of the victim. The medical examiner testified that the victim had sustained gunshot wounds to the shoulder and abdomen, which would not have been immediately fatal, and a gunshot wound to the head, which would have instantly killed her.

Approximately 18 months after the murder, after a nationwide manhunt, Jeffrey was located in Ohio, having changed his appearance by growing out his hair and facial hair. He had been utilizing pre-paid cellular phones for communication, which do not require proof of identification to obtain.

1. Though Jeffrey has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt

that Jeffrey was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Jeffrey contends his trial counsel rendered ineffective assistance by failing to request a jury instruction on voluntary manslaughter as a lesser included offense of murder.

To prevail on this claim, he must show that the failure to make the request was a deficiency in his attorney's performance and that, but for the lack of the instruction, there is a reasonable probability that the jury would have found him guilty of the lesser offense.

Sparks v. State, 277 Ga. 72, 74(3), 586 S.E.2d 645 (2003) (citing Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In order to have been entitled to an instruction on voluntary manslaughter, Jeffrey would have had to show at least “slight evidence ... that the victim seriously provoked [him], causing [him] to kill the victim solely as the result of a sudden, violent, and irresistible passion.” (Punctuation and citations omitted.) Jones v. State, 296 Ga. 663, 665, 769 S.E.2d 901, 904 (2015) ; see also OCGA § 16–5–2(a). Thus, absent “slight evidence” that the killing was “solely” the result of a “sudden, violent, and irresistible passion,” a voluntary manslaughter instruction would not have been warranted, and trial counsel's failure to request an inapposite instruction cannot form the basis for an ineffectiveness claim. See McNeal v. State, 289 Ga. 711, 715 S.E.2d 95 (2011) (counsel not ineffective for failing to request voluntary manslaughter instruction where there was no evidence to support such a charge); Ros v. State, 279 Ga. 604(6), 619 S.E.2d 644 (2005) (same).

Here, there were no eyewitnesses to the killing, and thus the sequence of events immediately preceding the shooting is unknown. The evidence reflects that Jeffrey was upset during the day because he did not know his wife's whereabouts and suspected she was being unfaithful. However, the patrol officer who responded to the victim's 911 call that night testified that, at the time he arrived at the apartment, Jeffrey was asleep, and that, once awakened, Jeffrey's demeanor was calm and he was generally compliant. There was no evidence of any “sudden passion” provoked by the victim subsequent to this encounter such as would support a voluntary manslaughter conviction. To the contrary, the evidence reflects that Jeffrey made a conscious decision to defy the no-contact order almost immediately after being escorted away, returning to the victim's apartment, shooting her dead, and fleeing. As there was no evidence to support an instruction on voluntary manslaughter, trial counsel was not ineffective in opting not to request such a charge. See McNeal, 289 Ga. at 715, 715 S.E.2d 95 ; Ros, 279 Ga. at 608, 619 S.E.2d 644.

3. Though we find no error with respect to the jury's verdicts, we have noted an error with regard to the merger of certain counts for judgment and sentencing. See Hulett v. State, 296 Ga. 49(2), 766 S.E.2d 1 (2014) (merger error, even if it is not raised by the parties, may be addressed by appellate court sua sponte). As noted in footnote 1, supra, the trial court imposed a life without parole sentence for malice murder, plus five years consecutive for firearm possession during the commission of the murder. The court then purported to “merge” all four felony murder verdicts and all four aggravated assault verdicts into the malice murder verdict.

As to the four felony murder counts, the trial court merely used incorrect nomenclature, as these verdicts did not “merge” into the malice murder...