Murder. Dodge Superior Court. Before Judge Wall.
Timothy L. Eidson, for appellant.
Timothy G. Vaughn, District Attorney, Lauren C. Shurling Finley, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
THOMPSON, Chief Justice. All the Justices concur.
Thompson, Chief Justice.
Appellant Michael McNair was convicted of malice murder in connection with the death of his wife, Peggy. He appeals, asserting that the evidence was insufficient to support the verdict and that his trial counsel provided ineffective assistance. Finding no error, we affirm.
The evidence construed in favor of the verdict shows that the McNairs had been married for 23 years, but appellant had only recently returned to the marital home in January 2009 after residing in another state for two years. Appellant claimed to have found [296 Ga. 182] evidence that the victim had become romantically involved with a man named Leroy Edwards while the couple was living apart.
On the morning of February 15, 2009, the victim was in her bedroom getting dressed when appellant approached her from behind and struck her numerous times in the head with a hammer. Appellant claimed that he believed the victim was getting dressed to go see Edwards and that he just " snapped." Leaving the victim on the floor of the bedroom, appellant placed the hammer in a box above the washer and dryer and drove to his mother's house in Cochran, Georgia. En route, appellant called 911 and, explaining to the operator that " the emergency is murder," confessed that he had attacked his wife with a hammer, striking her four or five times. Appellant subsequently admitted to the police officer responding to the 911 call, that he had hit his wife in the head with a hammer multiple times. Appellant also told the officer where the hammer could be found. Consequently, emergency personnel and deputies went to the marital residence where they found the victim bloodied, but alive, and transported her to the hospital where she later died. The cause of the victim's death was determined to be blunt force head trauma consistent with being struck with a claw hammer.
1. Appellant challenges the sufficiency of the evidence with respect to his conviction for malice murder, arguing that the evidence only supports a verdict of voluntary manslaughter. Whether the evidence supports a verdict of malice murder or voluntary manslaughter resulting from sufficient provocation is a question for the jury. See Jones v. State, 282 Ga. 47, 48 (644 S.E.2d 853) (2007). Here, the jury was authorized to conclude the provocation claimed by appellant was insufficient to incite passion in a reasonable person. See Lewandowski v. State, 267 Ga. 831, 832 (2) (483 S.E.2d 582) (1997). Moreover, the State was not required to show premeditation or a preconceived intention on appellant's part as malice aforethought can be formed instantly. See Wynn v. State, 272 Ga. 861 (535 S.E.2d 758) (2000). Construed most strongly in support of the verdict, we find the evidence in this case was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Appellant also contends that he received ineffective assistance of counsel at trial, asserting that his trial counsel's performance was deficient in a number of ways.
In order to prevail on these claims, appellant must show both that his counsel's performance was professionally deficient and that, but for counsel's unprofessional conduct, a reasonable probability exists that the outcome of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 688 [296 Ga. 183] (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (325 S.E.2d 362) (1985). Moreover, a tactical or strategic decision made by counsel cannot form a basis for ineffective assistance of counsel unless it was " 'so patently unreasonable ...