Mullins v. State
| Decision Date | 08 June 2022 |
| Docket Number | A22A0439 |
| Citation | 364 Ga.App. 200,874 S.E.2d 378 |
| Parties | MULLINS v. The STATE. |
| Court | Georgia Court of Appeals |
John Hugh Bradley, for Appellant.
Tammy Gail Coffey, Assistant District Attorney, Tuttle W. Barksdale III, District Attorney, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Barry Mullins guilty of aggravated assault. Mullins appeals from his conviction and the denial of his motion for a new trial, asserting that his trial counsel provided ineffective assistance. Finding no error, we affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Echols v. State , 361 Ga. App. 864, 865, 865 S.E.2d 839 (2021). So viewed, the evidence shows that Mullins and the victim, who was or had been his girlfriend, began arguing at the victim's home. Mullins lunged at the victim with a knife and stabbed her multiple times. The victim's minor daughter witnessed the stabbing, and the victim provided statements to law enforcement officers about Mullins's attack.1
Mullins was indicted on one count of aggravated assault (Count 1), one count of family violence battery (Count 2), and one count of cruelty to children in the third degree (Count 3). Count 1 alleged that Mullins assaulted the victim with a knife. Count 2 alleged that Mullins committed family violence battery against the victim's daughter.
A nolle prosequi was entered on the cruelty to children charge before trial.
At trial, the victim's daughter testified that she saw Mullins stab the victim. A deputy sheriff testified that the victim told the deputy that Mullins (a) "lunged at her and began stabbing her" and (b) said, "I told you I was going to kill you, bitch." According to a sheriff's investigator, the victim "stated that she did not feel the stab wounds, but she recalled" "[s]eeing him on top of her coming with a downward motion like she was being stabbed." The victim told the investigator that she realized afterward that she had been stabbed. A video recording of the victim's interview with the investigator was played for the jury. Despite her statements to the law enforcement officers, at trial the victim claimed that she picked up a knife from under a bed, Mullins tried to get it out of her hand, and they ended up struggling over the knife. The victim testified, "I can't come here and say I was actually stabbed because I do not — I mean, I don't have — I don't have that information in my head that I was actually stabbed."
Mullins told the investigator that he "awoke to being stabbed." The investigator testified, however, that Mullins had "[n]o stab wounds and no knife wounds."
A nurse testified that the victim came into the hospital with multiple stab wounds. A trauma surgeon who treated the victim testified that one of the stab wounds caused the victim's lung to collapse. According to the surgeon, this stab wound was at least two inches deep and penetrated the victim's chest cavity. The surgeon was asked whether, in his training and experience, "that [would] take an amount of force to penetrate?" The surgeon answered, "Yes." In addition, the sheriff's investigator testified that cuts on the victim's arm and hand were "classic defensive wounds."
The jury found Mullins guilty of aggravated assault and not guilty of family violence battery. Mullins filed a motion for a new trial, which he amended twice. After a hearing, the trial court denied Mullins's motion for a new trial. This appeal followed.
On appeal, Mullins contends that he received ineffective assistance of trial counsel because trial counsel failed to (a) request a jury charge on accident and (b) object and move for a mistrial in response to what Mullins asserts was improper closing argument from the prosecutor.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U. S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Mullins must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Sullivan v. State , 308 Ga. 508, 510 (2), 842 S.E.2d 5 (2020).
To establish deficient performance, Mullins must "demonstrate that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Id. (citation and punctuation omitted). To show prejudice, Mullins must establish a reasonable probability that, but for his counsel's deficient performance, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citation and punctuation omitted). If an appellant fails to satisfy either prong of the Strickland test, it is not incumbent upon this Court to examine the other prong. Id.
Whether a trial attorney renders constitutionally ineffective assistance is a mixed question of law and fact. Sullivan , 308 Ga. at 510 (2), 842 S.E.2d 5. Appellate courts affirm a trial court's factual findings unless clearly erroneous, but we independently apply the legal principles to those facts. Id. at 510-511 (2), 842 S.E.2d 5. After reviewing Mullins's claims in accordance with the above standards, we conclude that Mullins has not met his burden of demonstrating that his trial counsel was ineffective.
(a) Mullins first argues that his trial counsel was ineffective for failing to request a jury charge on accident. "[T]o authorize a jury instruction[,] there need only be produced at trial slight evidence supporting the theory of the charge." State v. Newman , 305 Ga. 792, 796-797 (2) (a), 827 S.E.2d 678 (2019) (citation and punctuation omitted). "Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." McClure v. State , 306 Ga. 856, 863 (1), 834 S.E.2d 96 (2019) (citation and punctuation omitted). "When a claim of ineffective assistance is based on the failure to request a jury charge, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial." Bradley v. State , 322 Ga. App. 541, 545 (3) (a), 745 S.E.2d 763 (2013) (citation and punctuation omitted).
Although the trial court gave a jury instruction on self-defense, Mullins's trial counsel did not request a jury instruction on accident. "Generally, either accident or self defense will be involved in a case, but not both." Turner v. State , 262 Ga. 359, 360 (2) (b), 418 S.E.2d 52 (1992). "This is because they are for the most part mutually exclusive, in that self-defense involves an intentional act and accident does not." Kilpatrick v. State , 252 Ga. App. 900, 903 (2), 557 S.E.2d 460 (2001). However, "Georgia's appellate courts have recognized that the evidence will support a charge on both [self-defense] and accident in a case where the evidence supports an inference that the defendant was armed with a weapon while defending himself or herself from another party and that other party was accidentally wounded or killed by that weapon." Hill v. State , 300 Ga. App. 210, 212 (1), 684 S.E.2d 356 (2009). "In such a case, the defendant is not required to elect between the two defenses but is entitled to have the jury, under proper instruction, ... determine which, if either, of the defenses is applicable." Id. at 212-213 (1), 684 S.E.2d 356.
Mullins argues that there was evidence presented during his trial that supported a jury charge on accident. Specifically, he contends that the victim Mullins also points to the following testimony by the victim:
Assuming, without deciding, that this evidence was sufficient to authorize a jury charge on accident, Mullins has failed to show prejudice. The evidence of accident cited by Mullins was, at best, slight. The State, on the other hand, presented compelling evidence that Mullins acted intentionally, including eyewitness testimony from the victim's daughter that Mullins stabbed the victim, testimony from a law enforcement officer that the victim's wounds on her arm and hand were defensive, testimony from the trauma surgeon that the stab wound that penetrated the victim's chest cavity causing her lung to collapse was at least two inches deep and would have taken "an amount of force," and the victim's statements to law enforcement officers that Mullins stabbed her.
Furthermore, although the jury was not instructed on accident, it was instructed on the presumption of innocence and the State's burden of proof. The jury charge explicitly instructed the jury that the State was required to prove the element of intent beyond a reasonable doubt. Because the element...
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