Whittaker v. State

317 Ga. 127

891 S.E.2d 849

WHITTAKER v. The STATE.

S23A0613

Supreme Court of Georgia.

Decided: August 21, 2023

Matthew Kyle Winchester, Law Offices of Matthew K. Winchester, Garland Law Building, 3151 Maple Drive NE, Atlanta, Georgia 30305, for Appellant.

Chris Allen Arnt, Superior Court Judge-LMJC, PO Box 609, Trenton, Georgia 30752, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Herbert E. Franklin, Jr., District Attorney, Matthew William Moore, Lookout Mountain Judicial Circuit District Attorney, 114 E. Patton Street, PO Box 1025, LaFayette, Georgia 30728, for Appellee.

Pinson, Justice.

Appellant Steven Whittaker was convicted of malice murder and related crimes in connection with the stabbing death of LeBron Hankins. ¹ On appeal, Whittaker contends that (1) the evidence was insufficient to sustain his convictions for malice and felony murder; (2) the trial court committed plain error by failing to instruct the jury that Whittaker had no duty to retreat; (3) trial counsel gave constitutionally ineffective assistance in a number of ways; and (4) the trial court erred by failing to enter an order vacating the sentence for felony murder. But the evidence was sufficient to support his malice-murder conviction, and his sufficiency challenge as to his felony-murder conviction is moot because he was not sentenced on that count. The trial court did not err by failing to instruct the jury that Whittaker had no duty to retreat because retreat was not placed at issue. Whittaker's counsel did not perform deficiently in any of the ways Whittaker asserts. And although the felony-murder count should have been vacated by operation of law, there is no sentencing error to correct because the error will have no actual effect on Whittaker's sentence. So we affirm Whittaker's convictions and sentence.

1. Whittaker and Hankins had been friends for decades. But as one of their neighbors put it, "they weren't good for each other when they were drinking." When they were drinking liquor, "[t]hey'd just get drunk and want to argue." While they did not often fight physically, Whittaker would often "verbal[ly] abuse" Hankins when drunk. Another neighbor noted that Hankins "was scared of [Whittaker] when they were drunk." A third neighbor said that Whittaker was "[b]ad, he's like Dr. Jekyll and Mr. Hyde" when he drinks liquor and he was often "bossy" to Hankins. That neighbor also testified that she had seen Whittaker "slap[ ] [Hankins] upside the head" before and that Hankins "was very passive."

On the evening of August 17, 2018, Whittaker and Hankins were drinking beer and liquor at Whittaker's house. Later in the night, Whittaker called 911 to ask for an ambulance: he told the operator that Hankins "stabbed me seven times in the d**n gut" and "I killed him." He said Hankins had been dead for about an hour.

When Walker County Sherriff's Deputy Charles Barrett walked into the house in response to the call, he heard Whittaker laughing in the kitchen and holding his side, and he saw Hankins lying on the ground in "an extremely, extremely large pool of blood." He noted the blood had coagulated, "[s]o some time had passed before the 911 call was made." Deputy Barrett said Whittaker then "fell backwards due to [ ] being intoxicated." As he applied pressure to Whittaker's wound, Whittaker began laughing again. He told Deputy Barrett that he and Hankins had been drinking liquor, they had an argument, and then Hankins stabbed Whittaker in the stomach. Whittaker said he then blacked out "and when he came to he disarmed Mr. Hankins and then defended himself." Whittaker claimed to have stabbed Hankins two to three times in his upper body. Whittaker had two stab wounds: one around his navel and another shallow wound to the left of his rib cage. Once EMS arrived, Whittaker was taken by ambulance to the hospital for treatment.

Walker County Sherriff's Office Investigator Eddie Hill testified that when he arrived, Hankins was lying on his back in a large pool of blood, and there was so much blood that his face was unrecognizable.

A "massive amount of coagulated blood" had pooled around Hankins, including "a large amount of blood in the straddle-type area" of Hankins's shorts, which Hill determined was from Whittaker having sat on Hankins's stomach. He also saw a "large gaping hole" in Hankins's torso, likely a postmortem wound based on the lack of bleeding in that area. And he found a knife with a black handle and a 3.5-inch partially serrated blade, which had Hankins's blood on it.

The next day, Investigator Hill interviewed Whittaker at the hospital. He testified that Whittaker was not in custody or under arrest at that point, so he did not read Whittaker his rights under Miranda . ² Whittaker told Hill that he and Hankins had been drinking beer since noon and later had a "stiff drink." Whittaker said he had no memories from after the time he spoke with a neighbor around 7:00 p.m. until he woke up on the kitchen floor and saw Hankins lying there, at which point he called 911. He then remembered that Hankins "stabbed me, and I came unglued." He did not remember if he and Hankins argued that night. He said Hankins "claimed he's a fighter" and "in martial arts," but that "I don't think the man can fight his way out of a paper bag" and that "[a]nytime I ever scolded him ... he ducked his head." Two days later, Whittaker was arrested.

A GBI forensic toxicologist testified that Hankins's blood-alcohol content (BAC) was 0.261. He explained that for an average social drinker, a person with a 0.261 BAC would have a "rough time" trying to speak clearly or stand up, but a more experienced drinker "can appear perfectly sober until you start asking them to do multiple things, divided attention." He testified that a "more experienced drinker" would be someone who drinks daily over the course of several years.

Dr. Keith Lehman performed Hankins's autopsy. He testified that Hankins suffered from 50 stab wounds, most of which were to the face, neck, and scalp. The stab wounds penetrated all the way to the bone, one punctured Hankins's vocal box, one cut his heart, and one cut his right lung. Patterned wounds on Hankins's chin suggested the use of a serrated blade. There were also blunt-force injuries to the side of Hankins's face, a fracture of his cervical spine likely caused by a blow to the head, and evidence of strangulation. Dr. Lehman determined the manner of death was homicide caused by a combination of the strangulation, blunt-force injuries, and stab wounds. He explained that Hankins had "a number of injuries ... that have a significant lethal potential."

2. Whittaker contends that the evidence to support his malice-murder conviction was insufficient. ³ In his view, the evidence at most supported voluntary manslaughter because, according to Whittaker, Hankins started the fight when he "told Whittaker that Hankins could fight" while they were both drunk; Hankins "introduced the knife into the fight by stabbing Whittaker first"; and "Hankins’ excessive injuries further support that Hankins was killed during a sudden heat of passion." See OCGA § 16-5-2 (a) ("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." ).

When reviewing the sufficiency of the evidence, we view the evidence presented in the light most favorable to the verdicts to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not "weigh the evidence on appeal or resolve conflicts in trial testimony." Byers v. State , 311 Ga. 259, 266 (2), 857 S.E.2d 447 (2021) (citation and punctuation omitted). Instead, we defer "to the jury's assessment of the weight and credibility of the evidence." Jones v. State , 314 Ga. 692, 695, 878 S.E.2d 502 (2022) (citation and punctuation omitted). And "[w]hether or not a provocation, if any, is such a serious provocation as would be sufficient to excite a sudden, violent, and irresistible passion in a reasonable person, reducing the offense from murder to manslaughter, is generally a question for the jury." Id. (citation and punctuation omitted).

Viewed in the light most favorable to the verdict, the evidence at trial was sufficient to support Whittaker's malice-murder conviction.

A person commits the offense of murder when he unlawfully and with malice aforethought ... causes the death of another human being. The State, of course, must prove malice beyond a reasonable doubt to convict someone of malice murder, as malice incorporates the intent to kill. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof .... The malice necessary to establish malice murder may be formed in an instant, as long as it is present at the time of the killing. It is for the jury to determine from all the facts and circumstances whether a killing is intentional and malicious.

Benton v. State , 305 Ga. 242, 244 (1) (a), 824 S.E.2d 322 (2019) (citations and punctuation omitted). See also OCGA § 16-5-1 (a).

The evidence authorized the jury to find that Whittaker formed the intent and malice necessary to convict him of malice murder. Whittaker and Hankins were drinking alcohol at Whittaker's home and got into an argument; according to Whittaker, Hankins stabbed Whittaker twice ⁴ ; and Whittaker stabbed Hankins 50 times,...