Owens v. State

• Decision Date: 05 March 2018
• Docket Number: S17A1905
• Citation: 811 S.E.2d 420
• Parties: OWENS v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 254

811 S.E.2d 420

OWENS

v.The STATE.

S17A1905

Supreme Court of Georgia.

Decided: March 5, 2018

Jennifer Elaine Hildebrand, HILDEBRAND LAW OFFICE, P.C., LaFayette, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, DEPARTMENT OF LAW, Atlanta, Herbert E. Franklin, Jr., District Attorney, LOOKOUT MOUNTAIN JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, LaFayette, Attorneys for the Appellee.

NAHMIAS, Justice.

Appellant Margie Owens was found guilty of voluntary manslaughter as a lesser offense of malice murder, felony murder based on aggravated assault, and possession of a firearm during the commission of a crime, all in connection with the shooting death of her husband, Randall Owens. In June 1998, the trial court sentenced Appellant to serve life in prison for felony murder and a consecutive term of five years on the firearm count; the court merged the voluntary manslaughter verdict into the felony murder conviction. It then took 19 years for her motion for new trial to be decided and her notice of appeal and the record in the case transmitted to this Court.¹

In this appeal, Appellant contends that her trial counsel provided ineffective assistance and that her conviction and sentence for felony murder instead of voluntary manslaughter violate the modified merger rule that this Court adopted in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992). As explained below, Appellant failed to show ineffective assistance of counsel, but she is correct that her conviction and sentence for felony murder violate the modified merger rule. Accordingly, we affirm Appellant’s conviction and sentence on the firearm count, we vacate her conviction and sentence for felony murder, and we remand the case to the trial court with direction to enter—promptly—a conviction and sentence for voluntary manslaughter.

But we do more. This Court and the Court of Appeals have for several years now repeatedly admonished criminal defense lawyers, prosecutors, and trial court judges to address and prevent inordinate and unjustified post-trial, pre-appeal delays of the sort this case exemplifies. Accordingly, in Division 4 below, we direct further action to address this continuing problem in our criminal justice system.

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant’s trial showed the following. On April 21, 1997, less than a month before the shooting, Appellant’s sister and her adult daughter obtained a probate court order involuntarily committing Appellant to a mental hospital due to their concerns about her excessive use of alcohol, violent behavior, and threats to kill her husband Randall. Appellant was released several days later.

On May 17, 1997, Appellant’s daughter and niece and the niece’s husband went to Appellant and Randall’s trailer for a cookout. Appellant had been drinking heavily that day and began arguing with Randall, repeatedly threatening to kill him. At one point, Appellant accused Randall of having an affair with her daughter (his step-daughter) and crudely suggested that her daughter perform oral sex on him. Appellant told her daughter that "she was going to get their gun and shoot" Randall and also threatened to kill the daughter. Eventually Randall told Appellant that he was tired of listening to her, and he went inside to lie down in their bedroom. Appellant later went inside to the bedroom and began arguing with Randall again. The three guests tried to leave at that point, and Appellant tried to prevent them from leaving by pulling wires out of her daughter’s car, which the niece and her husband then helped the daughter fix. The three of them then left.

Later that evening, Appellant went to her brother-in-law’s neighboring residence and asked to use his phone to call 911. He agreed, and Appellant called 911 at approximately 11:30 p.m. and reported that she "may have shot her husband." Appellant left a gun with her brother-in-law and proceeded to go to another neighbor’s residence and ask for a beer. Appellant soon heard sirens and told the neighbor that they were coming for her because she had shot her husband.

The responding officers found Randall in the couple’s home lying face down on the floor between the kitchen and the living room, with a trail of blood leading back to the bedroom. There was also a bloodstain on the bed. As the officers interviewed neighbors who had gathered outside, Appellant walked up. She was intoxicated, upset, and belligerent. Appellant, who had no visible signs of injury, said that she had been in an argument with her husband and believed that she had shot him. An officer retrieved the gun that Appellant left at her brother-in-law’s home. There were no signs of a struggle inside the home, and the physical evidence indicated that Randall had been lying in bed smoking a cigarette and tried to roll away from Appellant to avoid being shot. An autopsy showed that he died from blood loss due to a gunshot wound

in his back.

Appellant testified at trial, claiming that on the day of the shooting, beginning around 10:30 a.m., Randall cursed at her about the breakfast she had cooked; shoved her; followed her around the home cursing at her as she tried to clean up; slapped her and put a gun to her head, saying, "Bit*h, I’ll blow your godda*n brains out"; threatened that he would "beat [her] brains out" if she left the home; and cut her arm with a box cutter. Appellant said that they then had a cookout, and after those guests left, she went into the bedroom and asked Randall to extinguish the charcoal on the grill. According to Appellant, he got on top of her and started slapping and choking her, so she grabbed for something to hit him with to knock him off her and heard a gun fire. Appellant said that she did not know at the time that she had shot him. Appellant also recounted a long history of domestic violence by Randall, and the defense called an expert witness who testified about battered person syndrome.

The trial court instructed the jury on the three charges in the indictment and, at Appellant’s request, on voluntary manslaughter as a lesser offense of both malice murder and felony murder and on self-defense, including justification based on battered person syndrome. The jury then found Appellant guilty of voluntary manslaughter, felony murder, and possession of a firearm during the commission of a crime.

2. Appellant contends—and the State concedes—that in light of the jury’s finding that she was guilty of voluntary manslaughter, the trial court should have vacated the jury’s guilty verdict on the felony murder charge. The parties are correct. In Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), this Court held that "where the jury renders a verdict for voluntary manslaughter, it cannot also find felony murder based on the same underlying aggravated assault." Id. at 865, 414 S.E.2d 463. See also Sanders v. State, 281 Ga. 36, 37, 635 S.E.2d 772 (2006) (explaining that the modified merger rule adopted in Edge applies "if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part, of the killing"); Sinkfield v. State, 262 Ga. 555, 556, 422 S.E.2d 851 (1992) (reversing a felony murder conviction because the trial court improperly merged a voluntary manslaughter verdict into it). Accordingly, we vacate Appellant’s conviction and sentence for felony murder and remand this case to the trial court to promptly resentence her for voluntary manslaughter instead of felony murder.

3. Appellant’s only other contention is that her trial counsel provided ineffective assistance. To prevail on this claim, Appellant must prove both that her counsel’s performance was professionally deficient and that this deficiency resulted in prejudice to her case. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 LE2d 674 (1984). To establish deficient performance, Appellant must show that her counsel’s acts or omissions were objectively unreasonable, considering all of the circumstances at the time and in the light of prevailing professional norms. See id. at 687–690, 104 S.Ct. 2052. In particular, "decisions as to what witnesses and other evidence to present are matters of trial strategy and are ineffective only if unreasonable [decisions] that no competent attorney would make." Walker v. State, 301 Ga. 482, 491, 801 S.E.2d 804 (2017). To establish prejudice, Appellant must show "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "In all, the burden of proving a denial of effective assistance of counsel is a heavy one." Wells v. State, 295 Ga. 161, 164, 758 S.E.2d 598 (2014). Appellant has failed to carry that burden.

Appellant asserts that her trial counsel was ineffective in failing to call four witnesses to testify about her husband’s violence toward her over the years and in failing to offer into evidence photographs from Appellant’s hospital visits showing the injuries Randall caused when he beat her. She contends that these witnesses and pictures would have proved her defense of justification based on battered person syndrome. At the motion for new trial hearing, trial counsel explained that she made a tactical decision at trial not to call the four witnesses and present the pictures, given the other evidence that the defense presented.

In support of the self-defense claim at trial, Appellant’s counsel elicited testimony from several witnesses detailing Randall’s abuse of Appellant. For example, Appellant’s daughter testified that on occasions prior to the shooting, Randall hit Appellant, knocked her teeth out, shoved...