Stansell v. State, S98A0975.

• Decision Date: 16 November 1998
• Docket Number: No. S98A0975.,S98A0975.
• Parties: STANSELL v. The STATE.
• Court: Georgia Supreme Court

510 S.E.2d 292

270 Ga. 147

STANSELL v. The STATE.

No. S98A0975.

Supreme Court of Georgia.

November 16, 1998.

Healy & Svoren, Timothy Healy, Nina M. Svoren, Toccoa, for appellant.

Robert W. Lavender, District Attorney, J. David Duffy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth L. Jaeger, Assistant Attorney General, for appellee.

BENHAM, Chief Justice.

This appeal is from Scotty Lee Stansell's conviction for malice murder arising from his fatal shooting of his wife Crystal.¹ The State put on evidence at trial which supported a finding of the following facts and events. The Stansells had been married for approximately two years and had a six-month-old child at the time of the shooting, but their marriage was troubled and they were considering divorce. On the Thursday before the shooting, which occurred in the early morning hours of a Sunday, Stansell threatened to beat his wife and told his wife's sister that if his wife did not shut up or leave with her sister, he "might just kill her." On Saturday, arguing with his wife and displeased about what she was going to wear to work, Stansell cut her shirt off with a knife. After she went to work that day, Stansell and Merritt, a friend with whom he planned to attend a concert, went to another friend's home and left the couple's child. Instead of going to the concert, Stansell and Merritt drove around drinking beer, stopping twice to speak with women. When Stansell went back to get his child, his wife was there. As they argued, he threatened to cut her clothes off her again. After the couple agreed to leave the child there overnight and went their separate ways, Stansell and Merritt continued to drive around some more, meeting and speaking to the victim briefly at a gas station. When Stansell and Merritt returned to Stansell's home, Crystal Stansell was already there. The three talked for a while and Stansell told his wife about the women he had seen that night. When Merritt said he didn't have a girlfriend, Crystal Stansell, who had previously dated Merritt, said she would be his girlfriend. Stansell then walked to a corner where a rifle was leaning against a wall and picked it up. Merritt saw him swinging the rifle back and forth between him and Crystal Stansell, looked down for a moment, then heard a shot. Stansell told Merritt he had shot his wife and sent Merritt for help. When Merritt returned, Stansell and a neighbor he had summoned were attempting to resuscitate the victim. Stansell asked Merritt to say that Stansell had not been drinking and that the shooting was an accident. Police officers at the scene noticed a smell of alcohol around Stansell. The bullet from the rifle entered Crystal Stansell's left arm and went through her heart and lungs, killing her.

1. Stansell asserts that the trial court erred in denying his motion for directed verdict of acquittal and his motion for new trial on the general grounds. Since the evidence summarized above was sufficient to authorize a rational trier of fact to find Stansell guilty beyond a reasonable doubt of malice murder (Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooks v. State, 253 Ga. 141(1), 317 S.E.2d 531 (1984)), there was no error in denying the motion for new trial, and since the same standard is applicable to the denial of a motion for directed verdict of acquittal (Humphrey v. State, 252 Ga. 525(1), 314 S.E.2d 436 (1984)), there was no error in denying that motion.

2. In two enumerations of error, Stansell argues that reversible error occurred when the trial court failed to charge the jury on the State's burden of disproving beyond a reasonable doubt the affirmative defense of accident, and contends that he received ineffective assistance of counsel when trial counsel withdrew a request to charge on that defense.

Based on Stansell's testimony that the rifle fired accidentally while he was ensuring that it was unloaded, Stansell was entitled upon request to have the jury instructed on the defense of accident, including instruction that the State had the burden of disproving the defense of accident. Griffin v. State, 267 Ga. 586(1), 481 S.E.2d 223 (1997). However, trial counsel specifically withdrew the request to charge on the state's burden of disproving accident. Thus, the issue of whether the trial court erred in failing to charge on the burden placed on the State to disprove accident is to be decided using the standard applicable to cases, unlike Griffin, supra, in which there was no request for a charge on the State's burden of disproving the defense of accident. Because the trial court charged "the jury on the elements of the defense of accident, the presumption of innocence, the burden of proof in general, criminal intent, and the burden to prove the elements of the crimes alleged in the indictment," the trial court did not err in failing to give an additional charge on the State's burden to disprove the defense of accident beyond a reasonable doubt. Ross v. State, 268 Ga. 122(7), 485 S.E.2d 780 (1997).

However, Stansell raised on motion for new trial and raises now on appeal the question of whether trial counsel's action in withdrawing the charge amounted to ineffective assistance of counsel. "In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense." Stephens v. State, 265 Ga. 120(2), 453 S.E.2d 443 (1995). "There is a strong presumption that the performance of trial counsel `falls within the wide range of reasonable professional assistance....' [Cit.]" Lowe v. State, 267 Ga. 410(5), 478 S.E.2d 762 (1996). "The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case." Berry v. State, 267 Ga. 476(4), 480 S.E.2d 32 (1997). "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland v. Washington, supra at 689, 104 S.Ct. 2052.

Trial counsel testified at the motion-for-new-trial hearing that he withdrew the charge request as a tactical matter, hoping to avoid causing the State to attack the accident defense too vigorously in closing argument. Counsel testified that he felt at the time that the defense had done a good job of establishing the defense of accident, but he did not want the prosecuting attorney to emphasize to the jury the degree to which the State's evidence negated the defense's evidence of accident. Instead, counsel preferred that the State put its effort into peripheral issues. Counsel defended his tactical choice by noting that the prosecuting attorney had not, in fact, belabored the extent to which the State had refuted Stansell's claim of...