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Hornbuckle v. State

Supreme Court of Georgia

February 27, 2017


          Boggs, Justice.

         Appellant Carol Sue Hornbuckle was convicted of murder in connection with a domestic dispute that ended in the stabbing death of Charles Keith Raburn.[1] The trial court denied Hornbuckle's amended motion for new trial, and she appeals, asserting error in denying her motion for immunity under OCGA § 16-3-24.2, errors in the trial court's charge to the jury, and ineffective assistance of trial counsel. For the reasons that follow, we affirm.

         Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed that Hornbuckle moved in with the victim shortly after they met. The relationship became violent, with many incidents of physical confrontations fueled by alcohol. In two of those incidents, Hornbuckle was the aggressor. On July 7, 2007, a verbal argument turned physical when Hornbuckle struck the victim in the face with a glass, causing visible injuries. She gave conflicting stories to the police and had no visible injuries despite her claim that the victim hit her. Deputies arrested her on a charge of family violence battery. According to an officer, she was drunk and "irate and angry." She was released on bond with the conditions that she "[s]tay away, absolutely, directly or indirectly, by person, mail, telephone or third person, from the person, home and work place of [the victim], " and that she "do no harm or threat of violence to [the victim] or any member of his family."

         During the week before the victim's death, he received two telephone calls at work in the presence of his supervisor. At the time of the first call, the supervisor could not make out the words but could hear that the caller was speaking in an "aggressive-type tone." When the victim hung up the phone he turned to his supervisor and said, "She threatened to kill me." A few days later, on a Thursday, the victim received another call, and the supervisor testified that he overheard and could tell that the victim "was trying to calm the situation down." The victim remarked to the supervisor that he "can't put up with this anymore, he's tired of the threats and stuff like that." Asked on cross-examination how he knew it was Hornbuckle and not one of the victim's ex-wives, the supervisor stated that the victim told him that he was going to take out "a restraining order . . . against Carol." The supervisor testified that he and the victim "had kind of opened up" despite his practice of not talking about personal affairs at work, and they had "extensive" conversations regarding their personal situations and family problems.

         The following Saturday, Hornbuckle went to the victim's home, in violation of her bond conditions. An argument developed during the evening and continued after she woke the victim up to ask him to come to bed. Hornbuckle testified that the victim began hitting her and told her to "get in [her] truck and leave." She testified that she went into the bathroom, and he followed her, knocking her off the toilet with a blow to the head. When she went into the living room and attempted to leave, he blocked the door, and when she sat down on a chaise lounge, he hit her and knocked her to the floor. At that point, Hornbuckle crawled into the kitchen and grabbed a large knife; the victim did not follow her, but remained in the living room. She testified that she wanted to leave the house, but instead of leaving from the kitchen via the back door she returned to the living room. While she implied that she could not leave through the back door because the back yard had a tall fence and a locked gate, police found the gate open and in fact escorted Hornbuckle from the residence through the gate. A deputy who responded to the incident in July observed that the gate also was open at that time.

         Hornbuckle testified that when she returned to the living room, the victim attacked her, and there was "a struggle" and they were "spinning or turning" between the chaise lounge, a cabinet, and the front door. However, the furniture was not in disarray, and small objects on the cabinet were not disturbed. Hornbuckle testified that the next thing she remembered was falling to the ground with the victim on top of her, and then she noticed that he was bleeding "a stream of blood." The knife had passed completely through the victim's heart and into one lung, killing him. Hornbuckle insisted that she did not intend to stab the victim and held the knife at her side throughout the encounter, but the medical examiner testified that the victim had an abrasion on his neck, a defensive wound on his wrist, and two relatively superficial puncture wounds on his chest in addition to the fatal wound. And while Hornbuckle testified that the victim fell on top of her, a deputy and a paramedic testified that the victim was lying in an "enormous amount of blood" but Hornbuckle had only blood "spatter" on the side and back of her shirt. Despite testifying that she had been struck in the head and face, Hornbuckle had no injuries except bruises on her right arm, which she acknowledged could have been a "possible" injury from a victim attempting to block a knife, although she added that was "not what happened."

         In the recording of Hornbuckle's call to 911, which was stipulated to by the parties and played for the jury, Hornbuckle told the dispatcher, "I'm tired of him smacking me, I'm fed up with it, and I've hurt him, okay?" and "I can't let him keep on smacking me around." She added, "I did stab him."

         1. Hornbuckle has not raised the sufficiency of the evidence. Nevertheless, we have independently reviewed the record with an eye toward the legal sufficiency of the evidence. We conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Hornbuckle was guilty of malice murder. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Hornbuckle asserts that the trial court erred in denying her motion for immunity under OCGA § 16-3-24.2, because she was reasonably defending herself against the victim. To avoid trial based on a justification defense presented at an immunity hearing, "a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence." Bunn v. State, 284 Ga. 410, 413 (3) (667 S.E.2d 605) (2008). "In reviewing the denial of a motion for pretrial immunity, we must view the evidence in the light most favorable to the trial court's ruling and accept the trial court's findings of fact and credibility determinations if there is any evidence to support them." Sifuentes v. State, 293 Ga. 441, 444 (2) (746 S.E.2d 127) (2013).

         At the hearing on her motion for immunity, Hornbuckle testified similarly to her testimony at trial. She testified to numerous prior altercations, claiming that the victim was the aggressor, but she did not seek medical attention and had no proof of any injuries from these conflicts. She acknowledged that she went to the victim's house on the night of the incident in violation of a court order. She testified that she and the victim argued, and he hit her in the bedroom, the bathroom, and the living room, then prevented her from leaving the house. She had no visible injuries from these blows, however. After the victim hit her again, she went to the kitchen and got a knife, then returned to the living room, where the victim grabbed her and "slung [her] around." They ended up on the floor, she saw that he was bleeding, and she called 911. Hornbuckle acknowledged that she did not know why she did not leave through the back door instead of returning to the living room, even though the gate was open; "[i]t didn't even enter [her] mind." And she acknowledged that she had her cell phone with her at all times but did not call for help until after the victim was stabbed. In addition, the 911 recording was heard by the trial court.

         This evidence was sufficient to support the trial court's denial of Hornbuckle's motion for immunity. Hornbuckle's testimony that the victim attacked her, that she had no means of escape, and that she had reason to believe he would harm or kill her was not uncontroverted, as the physical evidence and Hornbuckle's statements in the 911 call and on cross-examination provided some evidence that the encounter did not occur in the manner she described, that the victim did not attack her as she claimed, that she did not attempt to escape or call for help but instead precipitated the fatal encounter, and that the victim did not fall on the knife but was stabbed repeatedly while trying to defend himself. This evidence authorized the trial court to conclude that Hornbuckle's actions were motivated by aggression or anger rather than self-defense. See, e.g., Sifuentes, supra, 293 Ga. at 444-445 (2).

         Hornbuckle also contends that the trial court erred as a matter of law because it ruled that defenses of self-defense and accident were mutually exclusive. But the trial court did not make such a ruling; it simply denied the motion for immunity without further comment. The State's assertion that Hornbuckle was raising a legal defense of accident was vigorously contested by Hornbuckle's counsel. And, in the subsequent hearing on third party acts of violence, the trial court definitively rejected the State's argument that Hornbuckle's testimony foreclosed a defense on justification as "mutually exclusive defenses." In the absence of any explicit ruling by the trial court we cannot assume that it improperly applied the law in the manner posited by Hornbuckle. "The appellant bears the burden of proving error by the appellate record." King v. State, ___ Ga. ___ (794 S.E.2d 110) (2) (2016).

         3. Hornbuckle complains that the trial court erred in instructing the jury on revenge, contending that it was not an accurate statement of the law as set out in Rector v. State, 285 Ga. 714 (681 S.E.2d 157) (2009), and that it was not adjusted to the evidence. The trial court gave almost verbatim the relevant pattern charge from the Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.16.30, Revenge for Prior Wrong, [2] and the pattern instruction is an accurate statement of the law. See Rector, supra, citing Hill v. State, 250 Ga.App. 9, 11-12 (1) (550 S.E.2d 422) (2001). Hornbuckle contends that "no evidence was introduced to prove Hornbuckle 'deliberately sought out Raburn to avenge a past wrong, '" but "[t]o authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge." Hicks v. State, 287 Ga. 260, 262 (695 S.E.2d 195) (2010). Here, as noted above, some evidence was presented that Hornbuckle acted out of anger or vengefulness at past wrongs rather than from a reasonable apprehension of harm from the victim. See Teems v. State, 256 Ga. 675, 676-677 (3) (352 S.E.2d 779) (1987) (evidence that murder victim beat and pistol-whipped appellant on previous occasion authorized charge on revenge).

         4. Hornbuckle next asserts that the trial court erred in failing to give definitions and elements of the underlying crimes relevant to her claim of justification and a definition of the term "forcible felony." But because she neither requested the instruction nor objected to its omission, we review this enumeration solely for plain error under OCGA § 17-8-58 (b). Sanders v. ...

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