Hayles v. State, A07A1341.

• Decision Date: 19 September 2007
• Docket Number: No. A07A1341.,A07A1341.
• Citation: 287 Ga. App. 601,651 S.E.2d 860
• Parties: HAYLES v. The STATE.
• Court: Georgia Court of Appeals

287 Ga. App. 601

651 S.E.2d 860

HAYLES v. The STATE.

No. A07A1341.

Court of Appeals of Georgia.

September 19, 2007.

Thomas Sterling Robinson III, for Appellant.

Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., for Appellee.

ADAMS, Judge.

After a jury found Winston Hayles guilty of voluntary manslaughter, aggravated stalking and other crimes arising from the shooting death of a friend of his girlfriend, he was convicted and sentenced to 35 years to serve. On appeal, Hayles argues that the trial court erred when it charged the jury on voluntary manslaughter, aggravated stalking, and unjustifiable self-defense and when it admitted similar transaction evidence. Hayles also asserts that trial counsel was ineffective. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that on June 6, 2005, Hayles was living with his girlfriend and her five children as well as his own four children when the girlfriend's sixteen-year-old daughter reproached Hayles for hitting her mother. In the course of the altercation that followed, Hayles struck his girlfriend again and knocked the daughter unconscious with a gun. Hayles was arrested and charged with domestic battery, a condition of his bond being that he could not contact his girlfriend or go to her house, job, or school without a police escort.

A few days later, on the evening of June 15, 2005, the girlfriend asked a male friend to take her daughter to the grocery store, which he did. In the meantime, Hayles, who had been drinking, arrived at the girlfriend's house without an escort. Hayles then entered the room where the girlfriend was talking to the friend on the telephone, demanded to know who she was talking to, grabbed the telephone, and told the friend that "when you come, I'll deal with you." Hayles asked the girlfriend if he could return to the house to live, but she refused, telling him that their relationship was over. Hayles began to cry, saying that he had nowhere to go. The friend soon returned to the house, leaving his car running while he dropped off the daughter and the groceries. When the girlfriend again alluded to the end of the couple's relationship, Hayles called the friend a "pussy whore," pulled a gun out of his pants, and fired two shots, hitting the friend once in the chest. The victim, whose single responding shot went awry, died from the wound.

After a chase during which he rammed a patrol car from behind, Hayles was arrested and charged with crimes including malice murder (count 1), felony murder (counts 2 and 3), aggravated assault (count 4), aggravated stalking (count 5), attempting to elude an officer (count 6), interference with government property (count 7), obstruction (counts 8 and 9), battery (count 10), cruelty to children (count 11) and possession of marijuana (count 12). The jury found Hayles guilty of voluntary manslaughter as a lesser included offense under counts 2 and 3 as well as aggravated assault, aggravated stalking, one count of obstruction, battery, cruelty to children, and possession of marijuana. The aggravated assault and aggravated stalking counts and one of the voluntary manslaughter counts merged into a single voluntary manslaughter conviction. Hayles's motion for new trial was denied.

1. Hayles first argues that the trial court erred in charging the jury on voluntary manslaughter, aggravated stalking, and unjustifiable self-defense. We disagree.

(a) Under OCGA § 16-5-2(a), a person commits voluntary manslaughter when he kills another person in "a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person."

Although the jury is the judge of whether there was an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, it is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent and irresistible passion resulting from serious provocation.

Henderson v. State, 234 Ga. 827, 831(2), 218 S.E.2d 612 (1975). Hayles himself requested a charge on the subject, and thus cannot complain on appeal. See Gooch v. State, 259 Ga. 301, 303(3), n. 2, 379 S.E.2d 522 (1989) (when requested by defendant, delivery of charge on voluntary manslaughter "cannot be reversible error"). The evidence supported the conclusion, moreover, that Hayles shot the victim in a fit of jealousy moments after his girlfriend repeated that their relationship was over. The trial court did not err when it gave the charge on voluntary manslaughter, and the evidence was sufficient to sustain Hayles's conviction on that charge. See Henderson, 234 Ga. at 831-832, 218 S.E.2d 612 (trial court erred when it refused to deliver charge on record showing slight evidence of provocation); Jackson, 443 U.S. 307, 99 S.Ct. 2781.

(b) OCGA § 16-5-92 provides that "persons or employees of such persons lawfully engaged in bona fide business activity or lawfully engaged in the practice of a profession" cannot be convicted of aggravated stalking under OCGA § 16-5-90 or 16-5-91. Even assuming that Hayles drove his work van to his house in order to retrieve some tools for use in his construction business, he could not have done so lawfully because a court had barred him from returning to the house without a police escort. The trial court correctly denied Hayles's request to charge on OCGA § 16-5-92.

(c) Under OCGA § 16-3-21(b), a person is not justified in using force if that person

(1) initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;

(2) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or

(3) was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so. . . .

Where, as here, an instruction recites the language of OCGA § 16-3-21, "giving that instruction is not harmful, even when the exceptions described by subsection (b) do not apply." Reese, 270 Ga.App. at 524(3), 607 S.E.2d 165, citing Jolley v. State, 254 Ga. 624, 628(4), 331 S.E.2d 516 (1985). There was no error.

2. Hayles next argues that the trial court erred when it admitted the testimony of a woman whose husband was threatened by Hayles with a gun. We disagree.

Before evidence of a similar transaction may be admitted into evidence, the State must make three showings at a Uniform Superior Court Rule 31.3(B) hearing: that the evidence of the transaction is offered "not to raise an improper inference as to the accused's character, but for some appropriate purpose," including a showing of "malice, intent, motive, or the like"; that there is sufficient evidence to establish that the accused committed the independent act; and that "there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter." Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). We review a trial court's admission of similar transaction evidence for an abuse of discretion. Collins v. State, 242 Ga.App. 450, 453(2), 529 S.E.2d 412 (2000). "Showing the defendant's bent of mind and course of conduct are legitimate purposes for the admission of similar transaction evidence." High v. State, 271 Ga.App. 388, 390(1)(b), 609 S.E.2d 722 (2005).

At trial, a woman testified that when her husband told Hayles that she...