February 16, 2015
Murder. Atkinson Superior Court. Before Judge McClain.
Larry M. Johnson, for appellant.
Richard L. Perryman III, District Attorney, Patrick Warren, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur, except Hunstein, J., who concurs in judgment only as to Division 2.
Hines, Presiding Justice.
John Thurston Hites appeals the denial of his motion for new trial, as amended, and his conviction for felony murder while in the commission of aggravated assault in connection
with the fatal stabbing of Che Mitchem. He challenges the introduction of evidence of his prior conviction, the refusal to allow him to testify about certain alleged statements of the victim, and the effectiveness of his trial counsel. Finding the challenges to be unavailing, we affirm.
The evidence construed in favor of the verdicts showed the following. At the time of the murder, Che Mitchem was living with his wife, Linda Mitchem Schultz, in Atkinson County. Schultz had previously been married to Hites, and Hites was then dating Schultz's sister, Lisa Hamlin. The day before the murder, on August 21, 2010, Hamlin became upset with Schultz, regarding some remarks Schultz had made concerning Hamlin and Hites's relationship. Hamlin and Hites walked to Schultz and Mitchem's home; before going, Hamlin said that she was " going to beat [Schultz's] ass," and Hites stated that he was accompanying Hamlin and " didn't want to have to kill somebody for hurting [Hamlin]." Hamlin knocked on her sister's front door, and Schultz opened it and came out onto the porch; the two sisters immediately began to fight. Schultz fell to the ground, and [296 Ga. 529] Hamlin got on top of her. Mitchem emerged from the house and pulled Hamlin off of Schultz. Hites then " came over" and began to fight with Mitchem. Hites pulled out a knife and stabbed Mitchem repeatedly. Mitchem fell to the ground, bleeding profusely. Schultz called 911. Hites fled.
Mitchem died as the result of multiple sharp force injuries. At the time of the fatal stabbing, neither Mitchem nor the two women were wielding a knife or other weapon. Agents with the Georgia Bureau of Investigation (" GBI" ) arrived at the scene and found a folding knife soaked with Mitchem's blood and located in the grass in the direction in which Hites had fled. That evening, Hites texted former in-laws that he had stabbed Mitchem " because [Mitchem] grabbed a hold of [Hamlin]," and that he was not sure how many times he had stabbed Mitchem, " but several." Hites asked for help getting clean clothes, but then warned them not to come to get him or they would be an " accessory to."
1. The evidence was sufficient to enable a rational trier of fact to find Hites guilty beyond a reasonable doubt of the felony murder of Mitchem while in the commission of aggravated assault. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Hites contends that the trial court erred in allowing the State, over objection, to introduce into evidence a certified copy of his 1994 federal conviction for mail fraud, without the State providing " proper notice" to him as required by former OCGA § 24-9-84.1 (b), that is, that the State introduced
the conviction without any notice or testimony as to its age. However, when the State asked Hites on cross-examination to " tell" about his conviction in federal court, Hites did not object to any lack of notice; therefore, the alleged error with regard to notice is deemed waived. See Young v. State, 290 Ga. 392, 400 (9) [296 Ga. 530] (721 S.E.2d 855) (2012) (alleged error of deficient notice that prior convictions would be entered into evidence during presentence hearing deemed waived when no objection made at hearing). Waiver in the circumstance in this case comports with the basic tenet that,
[i]n order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.
Hall v. State, 292 Ga. 701, 702 (2) (743 S.E.2d 6) (2013) (Citation and punctuation omitted.)
3. Hites next contends that the trial court erred when it refused to allow him to testify as to " what Mitchem had said at the time he was stabbed as it was part of the res gestae."
It appears that Hites is complaining about the trial court sustaining an objection by the State to Hites testifying about what he heard Mitchem uttering before Mitchem emerged from the house and just prior to the fatal encounter. The res gestae exception to hearsay, [296 Ga. 531] at the time of Hites's trial, was codified in former OCGA § 24-3-3, and provided that " [d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible
in evidence as part of the res gestae."  In general, whether the res gestae exception should apply is dependent on several factors including the timing of the statement, whether the declarant was able to deliberate about the statement, and whether the declarant was influenced by others prior to making the statement; there must also be some evidence that the declarant had personal knowledge regarding the facts in the statement and that the declarant was not merely relaying information from another person. Thomas v. State, 284 Ga. 540, 544 (2) (668 S.E.2d 711) (2008). There is little question that the testimony sought by Hites was self-serving hearsay, and therefore, hardly free from " suspicion of device or afterthought." Former OCGA § 24-3-3. But, in the situation in which the alleged statements by the victim are so directly connected to the incident involving the killing of the victim, such statements are admissible as a part of the res gestae and to explain the conduct of the deceased victim a few minutes before the fatal attack by the defendant. Rector v. State, 285 Ga. 714, 715 (3) (681 S.E.2d 157) (2009). Thus, it was error to refuse to allow Hites to give such testimony.
However, that is not the end of the inquiry because a trial court's ruling with regard to the admissibility of evidence as part of the res gestae is subject to a harmless error analysis. Johnson v. State, 292 Ga. 785, 789 (4) (741 S.E.2d 627) (2013). Applying such analysis, the error must be deemed harmless in this case. Hites gives no hint as to what statements by the victim he was unable to recount. But, it is plain from the trial colloquy and the hearing on the motion for new trial that Hites was attempting to buttress his claim of self-defense by [296 Ga. 532] showing that the victim was dangerously enraged just prior to the fatal stabbing. And, Hites was permitted to give ample testimony to that effect. Thus, the error in the evidentiary ruling does not provide a basis for reversal.
4. Lastly, Hites contends that his trial counsel was ineffective for failing to sufficiently raise his claim of self-defense and to subpoena " material" phone records. In order for Hites to prevail on his claim that his trial counsel was ineffective, he has to show, under Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), that his counsel's performance was deficient and that, but for the deficiency, there was a reasonable probability of an outcome at trial that was more favorable to him. Allen v. State, 293 Ga. 626, 627 (2) (748 S.E.2d 881) (2013). To satisfy the showing of deficiency under Strickland, Hites has to overcome the strong presumption that his trial counsel's performance was within the broad range of reasonable professional conduct, the reasonableness of which is judged from counsel's perspective at the time of trial and under the particular circumstances then existing in the case. Id. The second showing of prejudice requires that he demonstrate the reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. Hites does not make these showings.
Hites states that his " chief concern" is that his trial counsel " never followed-up," on his claim of self-defense by offering testimony at trial from his sister, Littrell, and/or by subpoenaing phone records regarding evidence that Hites acted in self-defense, notably evidence that Littrell had been sent texts from Hites's former sister-in-law, Michelle Register, to the effect that Hites had acted in self-defense. Hites urges that with this documentation of the texts, the jury would have had the opportunity to see that Schultz's and Hamlin's
versions of events at the time of trial differed from what they said the night of the incident. Hites further complains that trial counsel did not directly question Schultz and Hamlin regarding Hites's self-defense claim.
To begin with, contrary to what Hites now asserts, at the motion-for-new-trial hearing Littrell testified that the text or texts at issue were from Hamlin, not from Register. But more significantly, at the [296 Ga. 533] hearing, Hites's trial counsel testified that Littrell was not called to testify at trial because she could not " add anything" to the events of that night inasmuch as she was not there and did not know what transpired among the participants; that Littrell wanted Hites's defense to be that either Schultz or Hamlin actually killed Mitchem and that it was discussed so many times with Hites that for a time Hites instructed counsel not to have any further communication with Littrell; that if a text had been sent by Hamlin to Littrell as contended, it would have been on Littrell's phone and she could have shown it to counsel, but Littrell did not do so; and that counsel developed a self-defense theory together with Hites. Also, the trial transcript reveals that defense counsel did indeed attempt to support such theory during the cross-examinations of both Hamlin and Schultz. The State's forensic pathologist was also cross-examined regarding the proximity of Hites and Mitchem during the fight and the nature of Mitchem's wounds in an attempt to further Hites's claim of self-defense. The decision of whether to call a witness to testify at trial is a matter of trial strategy and tactics, and such a strategic and tactical decision cannot be deemed deficient performance unless the decision is so unreasonable that no competent attorney would have made it under similar circumstances. Miller v. State, 296 Ga. 9, 12 (4) (a) (764 S.E.2d 823) (2014). The scope of cross-examination is likewise grounded in trial tactics and strategy, and consequently, will rarely support a claim of ineffective assistance of counsel. Walker v. State, 294 Ga. 752, 756 (2) (c) (755 S.E.2d 790) (2014). Hites simply fails to show that trial counsel's representation was outside the wide range of reasonable professional conduct, or that counsel's decisions were not made in the exercise of reasonable professional judgment. Id. at 757 (2) (c).
Insofar as Hites asserts that trial counsel's alleged errors, considered collectively, show that the representation was so deficient as to constitute ineffective assistance, such assertion has no merit because Hites has not demonstrated the ineffectiveness of trial counsel in any of the ways claimed. Hoffler v. State, 292 Ga. 537, 543 (5) (739 S.E.2d 362) (2013).
Judgments affirmed. All the Justices concur, except Hunstein, J., who concurs in judgment only as to Division 2.