Hartley v. State, A09A0956.

• Decision Date: 05 August 2009
• Docket Number: No. A09A0956.,A09A0956.
• Parties: HARTLEY v. The STATE.
• Court: Georgia Court of Appeals

683 S.E.2d 109

299 Ga. App. 534

HARTLEY v. The STATE.

No. A09A0956.

Court of Appeals of Georgia.

August 5, 2009.

Brandon A. Bullard, for Appellant.

Fred A. Lane, Jr., Dist. Atty., Thomas D. Lyles, Asst. Dist. Atty., for Appellee.

BERNES, Judge.

This case arises out of allegations that Kenneth Hartley attempted to stab his estranged wife with a butcher knife and, the following day, fired a shotgun twice at an acquaintance who had witnessed the domestic dispute. The jury found Hartley guilty of two counts of aggravated assault, and the trial court denied his motion for new trial. On appeal, Hartley contends that his trial counsel was ineffective for failing to locate and call certain witnesses who would have supported his affirmative defense of justification. Hartley further contends that the trial court erred by not exercising its discretion and deciding whether he was entitled to a new trial on the general grounds that the verdict was contrary to the evidence, contrary to principles of justice and equity, and strongly against the weight of the evidence. For the foregoing reasons, we conclude that Hartley received effective assistance from his trial counsel. We agree with Hartley, however, that the trial court failed to exercise its discretion and decide his claims based upon the general grounds. Accordingly, the trial court's order denying Hartley's motion for new trial is vacated in part and the case remanded with the instruction that the trial court exercise its discretion.

Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Wallace v. State, 294 Ga.App. 159(1), 669 S.E.2d 400 (2008). So viewed, the evidence showed that on the evening of December 9, 2005, Hartley was at home drinking beer following a long day of construction work. Hartley was joined by an acquaintance, Chris Lockley. Hartley and Lockley had known one another for approximately 13 years. Both worked in construction and had worked together on the job earlier that day. While they were drinking, Hartley's estranged wife arrived at the home. She and Hartley were not living together at the time. They had been fighting for weeks and were considering a divorce.

Hartley and his wife became embroiled in a heated argument in front of Lockley. The argument intensified and Hartley became enraged when his wife refused to leave the home. He threatened to kill her. Hartley then pushed his wife, grabbed a butcher knife from the kitchen counter, chased her with the knife, and attempted to stab her. Lockley stepped between them and grabbed Hartley's arm to prevent him from cutting his wife. He was able to calm Hartley down enough for Hartley's wife to escape out the front door and drive away. Lockley left as well. Hartley passed out on the sofa.

The next day, Lockley returned to Hartley's home, where he found Hartley in his car in the driveway drinking beer. Hartley "was not in real good shape," and Lockley decided to help Hartley back inside his house. When he opened the front door to the house, Lockley observed a shotgun and a number of shells on the bar in the kitchen. Concerned for Hartley's safety, Lockley swept the shells into a drawer and hid the shotgun behind a couch. After hiding the shotgun and shells, Lockley went back outside, where Hartley had passed out and had fallen out of his car. Lockley assisted Hartley back into the house, laid him on the couch, and left the residence.

That evening, Hartley called Lockley and angrily demanded to know where his shotgun had been hidden. Lockley arrived at Hartley's home approximately 30 minutes later. Hartley was "pretty messed up" from all of the beer he had been drinking. Lockley showed Hartley where he had hidden the shotgun. After he was shown the shotgun, Hartley asked Lockley to get them a couple of beers from the refrigerator. Lockley complied.

As Lockley closed the refrigerator, Hartley was suddenly beside him pressing the shotgun to his temple. Hartley said, "This ain't no f'ing joke. I'm fixing to blow your G.D. head off." Lockley responded by raising his arm and knocking the shotgun up and away from his head. At that instant, Hartley fired the shotgun. Lockley fell backward, stunned but not hit. The shot went into the kitchen ceiling.

Hartley reloaded the shotgun. Lockley attempted to escape through the front door, but Hartley blocked him and again threatened to kill him. Hartley fired a second shot, but Lockley dove out of the way and avoided being hit. The bullet struck the ceiling near the hole from the first shot.

As Hartley attempted to reload a third time, Lockley charged him and elbowed him in the face. The two struggled over the shotgun. Lockley successfully wrestled the shotgun from Hartley and struck him with the butt of the gun in the face and stomach. Hartley screamed for Lockley to give him back his shotgun. Lockley told him that he could have the shotgun if he would stop blocking the front door. Hartley agreed, and Lockley fled through the open door still holding the shotgun. He threw the shotgun into the woods beside the home, headed to his truck, and drove away.

Once safely at his own home, Lockley called the police. Officers arrived there shortly thereafter, and Lockley reported to them what had occurred that evening and the previous evening at Hartley's home. Hartley's wife was contacted and arrived at Lockley's home approximately 30 minutes later. She provided a written statement to the police in which she reported that Hartley had chased her with a butcher knife the previous evening and had threatened to kill her. After receiving this information, the police went to Hartley's home, but he was no longer there.

Hartley subsequently was apprehended and indicted on two counts of aggravated assault—one count for brandishing the butcher knife at his wife, and one count for firing the shotgun at Lockley. At trial, Lockley testified on behalf of the state to the events as set out above. The state also presented testimony from the responding officers and photographs of the shotgun holes in the ceiling of Hartley's home.

In contrast, Hartley took the stand and denied brandishing the butcher knife at his wife or threatening to kill her. He testified that Lockley had simply fabricated the knife incident because the two men did not like each other. Hartley further testified that his firing of the shotgun at Lockley was an act of self-defense. In this respect, Hartley testified that on the night in question, he had confronted Lockley about stealing his wallet and had the loaded shotgun near him for personal protection. According to Hartley, Lockley began screaming at him, grabbed a baseball bat, and began approaching him with the bat. Hartley testified that when Lockley began violently striking the kitchen countertop with the baseball bat, he fired two warning shots into the ceiling. He claimed that the two then struggled over the baseball bat and shotgun, that Lockley struck him with the bat, that Lockley ultimately was able to wrestle the shotgun away from him, and that Lockley fled from the home with the bat and shotgun in hand.

One of Hartley's friends, Danny Norman, also testified on his behalf. Norman claimed that on the evening of December 10, he had driven to Hartley's home to pay him for work on a construction job. According to Norman, he was walking up to Hartley's front door when he saw Lockley walking away from the home with a baseball bat in one hand, and a shotgun in the other. Norman testified that Hartley came to the front door with his face bleeding and told him that a fight had just occurred.

Hartley's wife likewise testified on his behalf. She testified that they were no longer estranged and were living together again. While admitting that she and her husband had a heated argument on December 9, she denied that he ever brandished a butcher knife or chased her with one. Although she had stated otherwise in her written statement to the police, Hartley's wife claimed that she had no memory of a knife and that Lockley and his girlfriend had told her what to write in the statement.

Hartley's wife also testified to prior acts of violence by Lockley. Specifically, she testified to an incident she witnessed in 1999 in which Lockley got in an argument with a neighbor and attempted to strike him with a shovel. Hartley's wife described another past incident in which she witnessed Lockley approach his brother with a baseball bat during an argument over money.

Finally, Hartley's wife testified about Lockley's alleged personal vendetta against Hartley. In this respect, she claimed that in 2007, Lockley told her that he hated Hartley, that he wanted to kill him, and indicated that he had "say so" as to whether Hartley would be convicted for firing the shotgun.

After hearing all of the conflicting testimony, the jury convicted Hartley of the charged offenses. Hartley filed a motion for new trial asserting that his trial counsel was ineffective for failing to locate and call other witnesses to support his justification defense. He further asserted that the verdict was contrary to the evidence and the principles of justice and equity, OCGA § 5-5-20, and decidedly and strongly against the weight of the evidence, OCGA § 5-5-21. Following an evidentiary hearing, the trial court concluded that Hartley had failed to prove his ineffective assistance claim. The trial court declined to rule on the merits of Hartley's claims under OCGA §§ 5-5-20 and 5-5-21 because Hartley did not present any evidence or argument concerning those claims at the evidentiary hearing. Hartley now appeals.

1. Although not enumerated as error, we conclude that the evidence set forth above was sufficient to entitle any rational trier of fact to find Hartley guilty beyond a reasonable doubt of the two counts of aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-5-21(a)(2) ("A person commits...