Hamlette v. State

• Decision Date: 14 February 2020
• Docket Number: A19A2176,A19A1839
• Parties: HAMLETTE v. The STATE. Hamlette v. The State.
• Court: Georgia Court of Appeals

353 Ga.App. 640

839 S.E.2d 161

HAMLETTE

v.The STATE.

Hamlette

v.The State.

A19A1839

A19A2176

Court of Appeals of Georgia.

February 14, 2020

Rodney Samuel Zell, Atlanta, for Appellant in A19A1839.

Timothy Craig Head Jr., for Appellant in A19A2176.

George E. Barnhill, Alexander John Markowich, Waycross, for Appellee in A19A1839.

Patrician B. Attaway Burton, Christopher Michael Carr, Paula Khristian Smith, Atlanta, George E. Barnhill, Alexander John Markowich, Waycross, for Appellee in A19A2176.

Dillard, Presiding Judge.

Following a joint trial, a jury convicted both Tucker Hamlette and his brother, Timothy Hamlette, on one count each of voluntary manslaughter and aggravated assault with a deadly weapon. Both brothers now appeal, and because their cases arise out of the same set of facts, we have consolidated their appeals for review. In Case No. A19A1839, Tucker Hamlette argues that the trial court erred in instructing the jury on voluntary manslaughter as a lesser-included offense of felony murder, denying his claim of ineffective assistance of counsel, and failing to merge his convictions for sentencing. In Case No. A19A2176, Timothy Hamlette challenges the sufficiency of the evidence supporting his convictions and contends that the trial court erred in denying the claim in his motion for new trial that the verdicts were against the weight of the evidence and contrary to the principles of justice and equity, and in similarly failing to merge his convictions for sentencing. For the reasons set forth infra , we affirm the convictions in both cases, but because those convictions should have merged for purposes of sentencing, we vacate both sentences and remand for resentencing.

Viewed in the light most favorable to the jury’s verdict,¹ the evidence shows that on the night of June 19, 2015, Stephant Lewis and some friends went to a nightclub in an area of Folkston known as "the Sticks." While there, Lewis encountered his cousins, Timothy and Tucker Hamlette, as well as some of their friends. Sometime after 9:00 p.m., Lewis and Timothy Hamlette got into an argument. The argument quickly became heated and escalated into a fight, in which Timothy, Tucker, and several of their friends knocked Lewis to the ground. And in an attempt to defend himself, Lewis pulled a knife and cut Timothy, who had been on top of him. Lewis then got to his feet, raised both of his hands to the air in a "surrendering" motion, and started walking toward his girlfriend’s car, which was parked just across the street. But as he did, Timothy and Tucker pulled handguns and began firing at him.

As the shots rang out, Lewis—as well as numerous other people on the crowded street—tried to flee, but three bullets struck him, and he fell into a nearby ditch. Immediately, both Hamlettes fled the scene, and Lewis’s friends put him in a truck to take him to the hospital. But within minutes, they met an ambulance that had been dispatched to the scene. The paramedics then placed an unresponsive Lewis into the ambulance and transported him to the hospital. Nevertheless, once there, attempts to resuscitate Lewis were unsuccessful, and he was pronounced dead.

Subsequently, the State charged both Timothy and Tucker Hamlette, via the same indictment, with one count of felony murder predicated on aggravated assault and one count of aggravated assault with a deadly weapon. Ultimately, the case proceeded to a joint trial, in which the State presented the foregoing evidence. In addition, a GBI forensic pathologist—who performed the autopsy on Lewis—testified that his cause of death was due to three gunshot wounds

to his back, thigh, and calf, respectively, and that the wounds were caused by two different caliber bullets. A GBI firearms expert also testified that several .22 caliber and .380 caliber shells were recovered from the crime scene. Finally, a GBI special agent testified regarding her recorded interviews—which were played for the jury—with Timothy, Tucker, and a third brother, Tony Hamlette, who was a witness to the shooting. At the trial’s conclusion, the jury found both Timothy and Tucker Hamlette guilty of voluntary manslaughter, as a lesser-included offense of felony murder, and aggravated assault.

Thereafter, Timothy filed a motion for new trial. And after obtaining new counsel, Tucker also filed a motion for new trial, in which he alleged, inter alia , that his trial counsel rendered ineffective assistance. Subsequently, the trial court conducted a hearing on the Hamlettes’ motions, during which Tucker’s trial counsel testified regarding his representation. At the conclusion of the hearing, the trial court took the issues under advisement, but shortly thereafter, it issued orders denying both Hamlettes’ motions. These appeals follow.

Case No. A19A1839

1. In his first enumeration of error, Tucker Hamlette contends that the trial court erred by instructing the jury on voluntary manslaughter as a lesser-included offense of felony murder, arguing that evidence did not support such an instruction. This contention lacks merit.

During the charge conference, although Tucker informed the trial court that he was not requesting a jury instruction on voluntary manslaughter, he explicitly stated that he had no objection to his brother, Timothy, requesting such a charge. But OCGA § 17-8-58 requires that "[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate."² And the failure to so object precludes "appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties."³ In such cases, as the Supreme Court of Georgia has explained, "the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings."⁴ Consequently, because Tucker failed to object to this jury charge, our review is limited to consideration in this regard.⁵

Turning to our review of the specific instruction at issue, it is well established that "[j]ury charges must be adjusted to the evidence in the case."⁶ But to authorize a jury instruction on a subject, "there need only be produced at trial slight evidence supporting the theory of the charge."⁷ And here, the trial court instructed the jury on voluntary manslaughter as follows:

After consideration of all the evidence, before you would be authorized to return a verdict of guilty of felony murder, you must first determine whether mitigating circumstances, if any, would cause the offense to be reduced to voluntary manslaughter. A person commits voluntary manslaughter when that person causes the death of another human being under circumstances that would otherwise be murder if that person 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. If there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, which the jury in all cases shall decide, the killing may be attributed to revenge and be punished as for murder. In that connection, I charge you that the burden of proof is upon the State to prove beyond a reasonable doubt that the offense is so mitigated. Provocation by words alone will in no case justify such excitement of passion sufficient to free the accused from the crime of murder or to reduce the offense to manslaughter when the killing is done solely in resentment of such provoking words. Words accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient provocation to excite a sudden, violent, and irresistible passion in a reasonable person. And if a person acts in such passion or any spirit of revenge, then such would constitute voluntary manslaughter.

Tucker claims that this instruction constituted plain error, specifically arguing that there was no evidence he fired a gun at Lewis, and, thus, he should either have been found guilty of felony murder predicated upon being a party to aggravated assault or acquitted outright. But the Supreme Court of Georgia has held that "[o]n the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury."⁸ Indeed, our Supreme Court has recognized that a felony murder conviction would "be improper [when] the jury found sufficient provocation or passion with respect to the act that caused the killing to support a conviction for voluntary manslaughter."⁹ Thus, when there is evidence that supports a voluntary manslaughter conviction, the jury "should be instructed to consider that evidence before it makes its decision regarding felony murder."¹⁰ And here, the State presented evidence that immediately following a fight, in which both Tucker and Timothy were involved and in which Lewis cut Timothy, both Tucker and Timothy Hamlette fired handguns at Lewis. In fact, the State also presented evidence that two different caliber bullets struck Lewis. Given these circumstances, the trial court did not err by instructing the jury on voluntary manslaughter as such instruction was applicable to both defendants.¹¹

2. Tucker Hamlette also contends that the trial court erred in denying a claim that his trial counsel rendered ineffective assistance by failing to object when, during closing argument, the State allegedly made an improper remark regarding future dangerousness. We disagree.

In order to evaluate Tucker’s claims of ineffective assistance of counsel, we apply the two-pronged test established by the Supreme Court of the United States in Strickland v. Washington ,¹² which requires Tucker to show that his...