Henderson v. Hames

Decision Date12 July 2010
Docket NumberNo. S10A0363.,S10A0363.
Citation697 S.E.2d 798,287 Ga. 534
PartiesHENDERSON, Wardenv.HAMES.
CourtGeorgia Supreme Court

COPYRIGHT MATERIAL OMITTED

Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Benjamin H. Pierman, Assistant Attorney General, for appellant.

Morris, Manning & Martin, Holly A. Pierson; Powell Goldstein, William V. Custer, IV, Atlanta, for appellee.

NAHMIAS, Justice.

In 2002, Joshua Hames was convicted of misuse of a firearm while hunting and felony murder in the shooting death of his brother Sam. The trial court sentenced him to life in prison, and this Court affirmed on direct appeal. See Hames v. State, 278 Ga. 182, 598 S.E.2d 459 (2004). In 2005, Hames filed a pro se petition for habeas corpus, which the habeas court granted. The Warden appeals. We affirm because, as explained below, the habeas court correctly held that Hames's indictment and convictions are void.

1. On direct appeal, this Court summarized the evidence presented at trial, viewed in the light most favorable to the verdict, as follows:

Hames and his brother Sam went hunting on their parents' land. The two separated so as to hunt on different areas. Hames spotted something which, according to his subsequent statement and testimony, he mistook for a crouching animal, such as a bobcat or wildcat. In fact, what he saw was the victim, Sam. Hames aimed at the crouching figure through the scope on his rifle and fired, killing his brother.

Hames, 278 Ga. at 182, 598 S.E.2d 459.

In 2002, a Walton County grand jury indicted Hames for malice murder, two counts of felony murder, and the predicate felonies of misuse of a firearm while hunting and aggravated assault. See id. Rejecting the State's argument that Hames intentionally shot his brother and had motive to do so, the jury acquitted him of malice murder, aggravated assault, and felony murder based on aggravated assault. See Hames, 278 Ga. at 185, 598 S.E.2d 459. However, the jury convicted him of misuse of a firearm while hunting and felony murder based on that crime. The trial court merged the two convictions and sentenced Hames to life in prison for the felony murder. See id. at 182, 598 S.E.2d 459. Hames was represented on direct appeal by the same attorney who had represented him at trial.

On June 1, 2005, Hames filed a pro se petition for habeas corpus in Calhoun County, which was amended and then transferred to Baldwin County in October 2007. The petition was amended again, and the habeas court held an evidentiary hearing on August 29, 2008.

On June 10, 2009, the habeas court granted the petition on three grounds: (1) the indictment was void because it failed to charge an essential element of the offense of misuse of a firearm while hunting, namely, that Hames “consciously disregard[ed] a substantial and unjustifiable risk that his act or omission [would] cause harm to or endanger the safety of another person,” OCGA § 16-11-108(a); (2) the State failed to prove the mens rea necessary for conviction; and (3) Hames received ineffective assistance of trial counsel. Hames alleged multiple instances of deficient performance, including, as related to the first two grounds for granting the writ, his counsel's failure to challenge the defective indictment or file a motion for directed verdict of acquittal at trial and the failure to raise these arguments on direct appeal. The habeas court ordered Hames's convictions to be vacated but did not order his immediate release to allow the Warden the opportunity to pursue an appeal.

2. In reviewing the grant or denial of a petition for habeas corpus, this Court accepts the habeas court's factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the law to the facts. See Schofield v. Meders, 280 Ga. 865, 866, 632 S.E.2d 369 (2006). In general, ‘any issue raised and ruled upon in the petitioner's direct appeal may not be reasserted in habeas corpus proceedings, and ... claims that could have been raised on direct appeal but are raised for the first time in habeas corpus proceedings are procedurally defaulted, unless the petitioner meets the “cause and prejudice” test.’ Id. at 865, 632 S.E.2d 369 (citations omitted); OCGA § 9-14-48(d).1 However, where the same attorney represented the petitioner at trial and on direct appeal, the petitioner may raise an ineffective assistance of counsel claim for the first time in a habeas corpus proceeding. See Turpin v. Christenson, 269 Ga. 226, 231, 497 S.E.2d 216 (1998); Ryan v. Thomas, 261 Ga. 661, 661, 409 S.E.2d 507 (1991). See also OCGA § 9-14-48(d) (stating that ineffective assistance of counsel claims may be procedurally barred “in the event the petitioner had new counsel subsequent to trial”).

To succeed on an ineffective assistance of counsel claim, a habeas petitioner must show that counsel's performance was professionally deficient and that, but for counsel's unprofessional conduct, there is a reasonable probability that the outcome of the trial or direct appeal would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Miller v. State, 283 Ga. 412, 415, 658 S.E.2d 765 (2008). In some cases, a habeas petitioner can show more than a “reasonable probability” that the outcome would have been different, because if the petitioner's argument is correct, raising the issue at trial or on direct appeal would have resulted in a new trial or a directed verdict of acquittal as a matter of law. In this situation, the ineffectiveness analysis often becomes coextensive with the analysis of the legal issue that counsel failed to raise. See, e.g. Upton v. Parks, 284 Ga. 254, 255, 664 S.E.2d 196 (2008) (where a habeas petitioner alleges a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “the underlying claim and the prejudice analysis necessary to satisfy the cause-and-prejudice test are coextensive.” (citations omitted)). An indictment that reasonably proficient counsel should have realized was void is one such claim. See Smith v. Hardrick, 266 Ga. 54, 56, 464 S.E.2d 198 (1995) (affirming grant of habeas relief because indictment was void); Hopper v. Hampton, 244 Ga. 361, 361, 260 S.E.2d 73 (1979) (“The general rule is that substantive defects, such as the indictment fails to allege conduct which constitutes a crime, are cognizable on habeas corpus because the entire proceedings were void ab initio.”).

These sorts of claims are not barred by res judicata, because they were not actually litigated, due to counsel's ineffectiveness, at trial or on direct appeal. Likewise, such claims are not procedurally defaulted, because counsel's prejudicial failure to raise them constitutes both a Sixth Amendment violation and cause and prejudice to overcome the procedural bar to reach that result. See Battles v. Chapman, 269 Ga. 702, 702, 506 S.E.2d 838 (1998) ( [A] habeas petitioner who meets both prongs of the Strickland test has established the necessary cause and prejudice to overcome the procedural bar of OCGA § 9-14-48(d).”).

3. Hames had the same counsel at trial and on direct appeal, and the two principal issues he raises, which he contends his counsel was ineffective in failing to raise at trial and on direct appeal, fall into this category if his legal argument is correct. The legal issue at the heart of Hames's habeas petition rests on the identification of the essential elements of the crime created by OCGA § 16-11-108. That statute makes it a misdemeanor, “while hunting wildlife,” to

use[ ] a firearm or archery tackle in a manner to endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation....

OCGA § 16-11-108(a). The same conduct constitutes a felony where, as charged in the indictment against Hames, it “results in serious bodily harm to another person.” Id.

The indictment against Hames did not charge that he “consciously disregard[ed] a substantial and unjustifiable risk that his act or omission w [ould] cause harm to or endanger the safety of another person.” Hames contends that this language identifies the mens rea necessary to commit the crime created by O.C.G.A. § 16-11-108 and that its omission rendered void his indictment on that charge and the related felony murder charge. The habeas court agreed with this contention, and we do as well.

An indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged. See Davis v. State, 272 Ga. 818, 819, 537 S.E.2d 327 (2000); State v. Eubanks, 239 Ga. 483, 486, 238 S.E.2d 38 (1977). This principle is longstanding, see, e.g. Wright v. State, 168 Ga. 690, 690, 148 S.E. 731 (1929) (“It is a well-recognized rule that every indictment must charge every essential element of an offense.” (citation omitted)), and it has a constitutional foundation, see Lizana v. State, 287 Ga. 184, 185, 695 S.E.2d 208 (2010) (“ ‘(D)ue process of law requires that the indictment on which a defendant is convicted contain all the essential elements of the crime.’ ” (citation omitted)). Mens rea is an essential element of a crime. See Ward v. State, 271 Ga. 648, 653, 520 S.E.2d 205 (1999); Bacon v. State, 209 Ga. 261, 263, 71 S.E.2d 615 (1952). Thus, the commission of a crime requires “a joint operation of an act or omission to act [or actus reus] and intention or criminal negligence [or mens rea].” OCGA § 16-2-1(a).

OCGA § 16-11-108(a) spells out the two components of the mens rea necessary to violate the statute. As relevant to this case, there could be no violation unless Hames, while hunting wildlife, used a firearm in a manner endangering the bodily safety of his brother [(1)] by consciously...

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