Hickson v. the State.

• Decision Date: 23 February 2011
• Docket Number: No. A10A2051.,A10A2051.
• Citation: 706 S.E.2d 670,308 Ga.App. 50
• Parties: HICKSONv.The STATE.
• Court: Georgia Court of Appeals

308 Ga.App. 50

706 S.E.2d 670

11 FCDR 260

HICKSON

v.The STATE.

No. A10A2051.

Court of Appeals of Georgia.

Feb. 2, 2011.Reconsideration Denied Feb. 23, 2011.

Michael B. King, for appellant.Paul L. Howard Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.BARNES, Presiding Judge.

Kelly Hickson was indicted for malice murder and related offenses for fatally shooting another man in the parking lot of an adult strip club. Hickson was tried before a jury, which acquitted him of the malice murder charge and of voluntary manslaughter as a lesser included offense of malice murder, but was unable to reach a verdict on the remaining charges. Following a second jury trial, Hickson was convicted of voluntary manslaughter as a lesser included offense of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On appeal from the denial of his motion for new trial, Hickson contends that the trial court erred in admitting evidence of similar transactions in which he brandished a pistol during a verbal altercation; in admitting a certified felony conviction that listed the name of the defendant as “John O'Neal Jones”; and in charging the jury on voluntary manslaughter, given his acquittal of that offense in the first trial. He also argues that his defense counsel was ineffective for requesting a jury charge on voluntary manslaughter in the second trial. Lastly, Hickson maintains that the trial court imposed a sentence upon him that failed to comport with the jury's verdict. For the reasons discussed below, we affirm the judgments of conviction but remand with direction that the trial court correct the scrivener's errors contained in the sentence.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the verdict.” Martinez v. State, 303 Ga.App. 166, 692 S.E.2d 766 (2010). So viewed, the evidence showed that in the early morning hours of September 12, 2004, Hickson, the victim, and two of the victim's friends were standing in the parking lot of an adult strip club. Hickson and the victim were arguing with one another while the victim's two friends watched the verbal confrontation. As the argument continued, Hickson pushed the victim, pulled out a handgun, and shot the victim in the abdomen. Hickson threw his gun away and fled from the scene. After the victim died as a result of complications from the gunshot wound, Hickson was arrested and charged with malice murder; two counts of felony murder (with aggravated assault and possession of a firearm by a convicted felon as the underlying felonies); aggravated assault with a deadly weapon; possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon. Hickson pled not guilty and claimed that the shooting was justified as an act of self-defense.

In the first trial, the jury acquitted Hickson of malice murder and of the lesser included offense of voluntary manslaughter but deadlocked on the remaining counts of the indictment. The trial court granted a mistrial on the remaining charges, and the State filed an amended indictment that removed the count for malice murder.

At the second trial, Hickson testified that during the confrontation in the parking lot, the victim grabbed him and then one of the victim's friends pulled out a gun, leading Hickson to fear that the victim and his friends were going to attack him with deadly force. In contrast, the victim's two friends testified that neither they nor the victim was armed that night. Other witnesses similarly testified that they did not see the victim or his friends with any firearms and did not see them act in a physically threatening manner toward Hickson. There also was testimony that no firearms, other than the one linked to Hickson, were recovered from the parking lot by police investigators. Additionally, in order to show Hickson's course of conduct and bent of mind, the State presented evidence of prior instances in which Hickson had brandished a pistol during verbal altercations with other individuals.

Following the close of the evidence, the trial court charged the jury on, among other things, the affirmative defense of self-defense. The trial court also charged the jury on voluntary manslaughter as a lesser included offense of the felony murder counts, at Hickson's request.

The jury acquitted Hickson of the two counts of felony murder but found him guilty of voluntary manslaughter as a lesser included offense of those counts. The jury also found him guilty of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Hickson moved for a new trial, and the trial court denied the motion. This appeal followed.

1. The evidence adduced at the second trial was sufficient to enable any rational trier of fact to determine that Hickson did not act in self-defense and that he was guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). While Hickson claimed that he shot the victim out of fear for his life, “[a] jury has unlimited discretion to accept or reject a defendant's testimony as a whole, or to accept it in part and reject it in part.” (Punctuation and footnote omitted.) McGuire v. State, 243 Ga.App. 899, 900(1), 534 S.E.2d 549 (2000). “Questions concerning the weight of the evidence and credibility of the witnesses were for the jury to decide.” Johnson v. State, 289 Ga.App. 206, 208, 656 S.E.2d 861 (2008).

2. Hickson complains that the trial court erred in admitting similar transaction evidence. Before the State can introduce similar transaction evidence, the trial court must conduct a hearing under Uniform Superior Court Rule 31.3(B), and the State must make three affirmative showings as to each prior act. See Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991).

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant's identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate 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.

(Citations and footnote omitted.) Davis v. State, 244 Ga.App. 708, 711(3), 536 S.E.2d 596 (2000). See Williams, 261 Ga. at 642(2)(b), 409 S.E.2d 649. There is no requirement that the independent acts be identical to the crime charged; “[t]he proper focus is on the similarity, not the differences, between the separate crimes and the crime in question.” (Citation and punctuation omitted.) Waters v. State, 303 Ga.App. 187, 190(2), 692 S.E.2d 802 (2010). A trial court's determination that similar transaction evidence is admissible is reviewed only for an abuse of discretion. Id.

Here, the similar transaction evidence showed that in December 2003, Hickson pointed a handgun at the brother of his former girlfriend during a verbal altercation. Then, in February 2004, Hickson pulled out a handgun and struck his former girlfriend in the head with it during a quarrel. In July 2005, Hickson again pulled out a handgun while arguing with his former girlfriend. The State offered this evidence to show Hickson's course of conduct and bent of mind.

Hickson does not contest that the State met the first two prongs of the similar transaction test, i.e., that the evidence was introduced for an appropriate purpose and that there was sufficient evidence that he committed the other handgun incidents. Focusing on the third prong, he asserts that the three handgun incidents were too dissimilar to the crimes charged such that proof of the former did not tend to prove the latter. We are unpersuaded. The three incidents all involved circumstances in which Hickson pulled out a handgun during a verbal altercation, thereby demonstrating his “propensity to settle disagreements with a gun, to act violently and impulsively to disappointment or misunderstanding, and to resort to the use of a gun with little provocation.” Davis, 244 Ga.App. at 712(3), 536 S.E.2d 596. With respect to the current charges, the other handgun incidents helped prove Hickson's bent of mind and course of conduct, since the present incident likewise involved Hickson pulling out a handgun and drastically escalating what was a mere verbal altercation with little or no provocation for doing so. The trial court, therefore, did not abuse its discretion in admitting the similar transaction evidence. See Hayles v. State, 287 Ga.App. 601, 604(2), 651 S.E.2d 860 (2007) (in case involving fatal shooting, prior instance in which defendant threatened someone with handgun during argument over money was admissible to show defendant's propensity “to escalate disputes by pulling a weapon first”); Davis, 244 Ga.App. at 712(3), 536 S.E.2d 596 (in armed robbery case, prior unprovoked use of firearm to threaten driver was admissible to show defendant's bent of mind and course of conduct); Willis v. State, 214 Ga.App. 479, 480(3)(a), 448 S.E.2d 223 (1994) (prior instance in which defendant fired gun during dispute over potato chips was admissible in case where defendant repeatedly fired gun during verbal confrontation). ¹

3. Hickson next argues that the trial court erred in allowing the State to introduce a certified felony conviction that listed the name of the defendant as “John O'Neal Jones” to prove he was a convicted felon in possession of a firearm. Hickson further argues that because the certified felony conviction was inadmissible, the trial court should have granted his ...