Barry Mullins v. State

• Court: Court of Appeals of Georgia
• Decided: June 8, 2022
• Docket: A22A0439
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 8, 2022

In the Court of Appeals of Georgia A22A0439. MULLINS v. THE STATE.

PHIPPS, Senior Appellate Judge.

A jury found Barry Mullins guilty of aggravated assault. Mullins appeals from

his conviction and the denial of his motion for new trial, asserting that his trial

counsel provided ineffective assistance. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the defendant no longer enjoys a presumption of

innocence. Echols v. State, 361 Ga. App. 864, 865 (865 SE2d 839) (2021). So

viewed, the evidence shows that Mullins and the victim, who was or had been his

girlfriend, began arguing at the victim’s home. Mullins lunged at the victim with a

knife and stabbed her multiple times. The victim’s minor daughter witnessed the stabbing, and the victim provided statements to law enforcement officers about

Mullins’s attack.1

Mullins was indicted on one count of aggravated assault (Count 1), one count

of family violence battery (Count 2), and one count of cruelty to children in the third

degree (Count 3). Count 1 alleged that Mullins assaulted the victim with a knife.

Count 2 alleged that Mullins committed family violence battery against the victim’s

daughter. A nolle prosequi was entered on the cruelty to children charge before trial.

At trial, the victim’s daughter testified that she saw Mullins stab the victim. A

deputy sheriff testified that the victim told the deputy that Mullins (a) “lunged at her

and began stabbing her” and (b) said, “I told you I was going to kill you, bitch.”

According to a sheriff’s investigator, the victim “stated that she did not feel the stab

wounds, but she recalled” “seeing him on top of her coming with a downward motion

like she was being stabbed.” The victim told the investigator that she realized

afterward that she had been stabbed. A video recording of the victim’s interview with

the investigator was played for the jury. Despite her statements to the law

enforcement officers, at trial the victim claimed that she picked up a knife from under

1 Mullins does not raise any hearsay challenges to any out-of-court statements on appeal.

2 a bed, Mullins tried to get it out of her hand, and they ended up struggling over the

knife. The victim testified, “I can’t come here and say I was actually stabbed because

I do not — I mean, I don’t have — I don’t have that information in my head that I was

actually stabbed.”

Mullins told the investigator that he “awoke to being stabbed.” The investigator

testified, however, that Mullins had “[n]o stab wounds and no knife wounds.”

A nurse testified that the victim came into the hospital with multiple stab

wounds. A trauma surgeon who treated the victim testified that one of the stab

wounds caused the victim’s lung to collapse. According to the surgeon, this stab

wound was at least two inches deep and penetrated the victim’s chest cavity. The

surgeon was asked whether, in his training and experience, “that [would] take an

amount of force to penetrate?” The surgeon answered, “Yes.” In addition, the

sheriff’s investigator testified that cuts on the victim’s arm and hand were “classic

defensive wounds.”

The jury found Mullins guilty of aggravated assault and not guilty of family

violence battery. Mullins filed a motion for a new trial, which he amended twice.

3 After a hearing, the trial court denied Mullins’s motion for a new trial. This appeal

followed.

On appeal, Mullins contends that he received ineffective assistance of trial

counsel because trial counsel failed to (a) request a jury charge on accident and (b)

object and move for a mistrial in response to what Mullins asserts was improper

closing argument from the prosecutor.

To prevail on a claim of ineffective assistance of counsel under Strickland v.

Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Mullins

must show both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Sullivan v. State, 308 Ga. 508, 510 (2) (842

SE2d 5) (2020). To establish deficient performance, Mullins must “demonstrate that

his attorney performed at trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.” Id. (citation and

punctuation omitted). To show prejudice, Mullins must establish a reasonable

probability that, but for his counsel’s deficient performance, the result of the

proceeding would have been different. Id. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. (citation and punctuation

4 omitted). If an appellant fails to satisfy either prong of the Strickland test, it is not

incumbent upon this Court to examine the other prong. Id.

Whether a trial attorney renders constitutionally ineffective assistance is a

mixed question of law and fact. Sullivan, 308 Ga. at 510 (2). Appellate courts affirm

a trial court’s factual findings unless clearly erroneous, but we independently apply

the legal principles to those facts. Id. at 510-511 (2). After reviewing Mullins’s claims

in accordance with the above standards, we conclude that Mullins has not met his

burden of demonstrating that his trial counsel was ineffective.

(a) Mullins first argues that his trial counsel was ineffective for failing to

request a jury charge on accident. “[T]o authorize a jury instruction[,] there only need

be produced at trial slight evidence supporting the theory of the charge.” State v.

Newman, 305 Ga. 792, 796-797 (2) (a) (827 SE2d 678) (2019) (citation and

punctuation omitted).”Whether the evidence presented is sufficient to authorize the

giving of a charge is a question of law.” McClure v. State, 306 Ga. 856, 863 (1) (834

SE2d 96) (2019) (citation and punctuation omitted). “When a claim of ineffective

assistance is based on the failure to request a jury charge, the relevant inquiry is

whether the charge, if it had been requested, was warranted by the evidence, and if

it had been given, whether there is a reasonable probability that it would have

5 changed the outcome of the trial.” Bradley v. State, 322 Ga. App. 541, 545 (3) (a)

(745 SE2d 763) (2013) (citation and punctuation omitted).

Although the trial court gave a jury instruction on self-defense, Mullins’s trial

counsel did not request a jury instruction on accident. “Generally, either accident or

self defense will be involved in a case, but not both.” Turner v. State, 262 Ga. 359,

360 (2) (b) (418 SE2d 52) (1992). “This is because they are for the most part mutually

exclusive, in that self-defense involves an intentional act and accident does not.”

Kilpatrick v. State, 252 Ga. App. 900, 903 (2) (557 SE2d 460) (2001). However,

“Georgia’s appellate courts have recognized that the evidence will support a charge

on both [self defense] and accident in a case where the evidence supports an inference

that the defendant was armed with a weapon while defending himself or herself from

another party and that other party was accidentally wounded or killed by that

weapon.” Hill v. State, 300 Ga. App. 210, 212 (1) (684 SE2d 356) (2009). “In such

a case, the defendant is not required to elect between the two defenses but is entitled

to have the jury, under proper instruction, . . . determine which, if either, of the

defenses is applicable.” Id. at 212-213 (1).

Mullins argues that there was evidence presented during his trial that supported

a jury charge on accident. Specifically, he contends that the victim “testified at trial

6 that she grabbed a knife from under the bed and that [Mullins] tried to take it away

from her. She testified that during the struggle over the knife the defendant fell on top

of her.” Mullins also points to the following testimony by the victim: “Well, we were

struggling over the knife. I can’t come here and say I was actually stabbed because

I do not — I mean, I don’t have — I don’t have that information in my head that I was

actually stabbed. But I know that we were struggling with the knife.”

Assuming, without deciding, that this evidence was sufficient to authorize a

jury charge on accident, Mullins has failed to show prejudice. The evidence of

accident cited by Mullins was, at best, slight. The State, on the other hand, presented

compelling evidence that Mullins acted intentionally, including eyewitness testimony

from the victim’s daughter that Mullins stabbed the victim, testimony from a law

enforcement officer that the victim’s wounds on her arm and hand were defensive,

testimony from the trauma surgeon that the stab wound that penetrated the victims’s

chest cavity causing her lung to collapse was at least two inches deep and would have

taken “an amount of force,” and the victim’s statements to law enforcement officers

that Mullins stabbed her.

Furthermore, although the jury was not instructed on accident, it was instructed

on the presumption of innocence and the State’s burden of proof. The jury charge

7 explicitly instructed the jury that the State was required to prove the element of intent

beyond a reasonable doubt. Because the element of intent is incompatible with

Mullins’s theory of accident, when the jury found Mullins guilty of aggravated

assault, which requires a showing of intent, “it necessarily must have discredited” the

theory that Mullins’s actions were accidental. McClain v. State, 303 Ga. 6, 10 (2)

(810 SE2d 77) (2018). See also Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d

524) (1991) (aggravated assault committed by means of a deadly or offensive weapon

requires general criminal intent).

Considering the record as a whole, Mullins has not shown that the outcome of

his trial would have been different if the jury had been charged on accident. See

Gaston v. State, 307 Ga. 634, 639 (2) (a) (837 SE2d 808) (2020) (defendant failed to

show a reasonable probability that the outcome of his trial would have been different

had trial counsel requested a self-defense instruction because evidence supporting a

justification theory was weak). “Consequently, [Mullins] has failed to show that he

was prejudiced by trial counsel’s alleged deficient performance.” Id.

(b) Mullins next argues that his trial counsel rendered ineffective assistance by

failing to object and move for a mistrial in response to improper closing argument by

the State. Mullins contends that the following statements by the prosecutor misstated

8 the law: “But also because you all get to determine what happens in your community.

You all do. You’re the jury. You’re the conscience of this community. You’re the 12

people who get to decide what you will and will not allow here in Baldwin County,

Georgia. You can make a statement with your verdict.” Mullins argues that the jury’s

function is not to “determine what they will or will not allow in Baldwin County” but

rather is to “determine whether the State has proven beyond a reasonable doubt that

the defendant broke the law as defined by the [l]egislature.” According to Mullins,

the prosecutor’s argument “allows the jury to believe that they, the jury, can decide

what is lawful and that they can make the law.”

Mullins’s trial counsel explained at the motion for new trial hearing that he was

not sure why he did not object to these statements by the prosecutor. He speculated

that he may have “just felt to overlook it because the [j]udge [would] very soon direct

the jury that neither what [trial counsel] nor the [p]rosecutor said was to be

considered as evidence.” Trial counsel also testified that he might have been

discussing something with Mullins at the time, and that he “would have had to have

paid attention to [his] client if [Mullins had] asked [him] a question.” According to

trial counsel, it was not trial strategy, but he “[did not] know honestly” why he did not

object to the statements.

9 The prosecutor’s statements complained of here are similar to statements that

have been held to be within the bounds of permissible argument. See, e.g., Faust v.

State, 302 Ga. 211, 220 (4) (c) (805 SE2d 826) (2017) (finding statement that “you

all have to have the courage to speak up and talk for a community that’s too scared

to talk for itself” appropriate) (punctuation omitted); Gibson v. State, 283 Ga. 377,

381 (8) (659 SE2d 372) (2008) (finding it permissible for prosecutors to tell jury that

it had an “opportunity to define what is acceptable in the community” and to urge the

jury to speak on the community’s behalf and rid it of robbers and murderers)

(punctuation omitted); Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993)

(holding that it is not improper for a prosecutor to urge the jury to convict for the

safety of the community). Consequently, an objection or motion for mistrial in

response to the statements would have been unsuccessful. The failure to make a

meritless objection or motion will not support a finding of deficient performance in

an ineffectiveness claim. Cox v. State, 306 Ga. 736, 741 (2) (b) (832 SE2d 354)

(2019); Fleming v. State, 306 Ga. 240, 250 (5) (c) (830 SE2d 129) (2019); Crump v.

State, 301 Ga. 871, 873 (2) (804 SE2d 364) (2017). Thus, trial counsel was not

ineffective for failing to object and move for a mistrial during closing argument. See

10 Gibson, 283 Ga. at 381 (8) (trial counsel not ineffective for failing to object and move

for a mistrial during appropriate closing argument).

(c) Finally, Mullins suggests that the cumulative effect of his trial counsel’s

alleged errors affected the outcome of his trial. But here, we have assumed deficiency

with respect to only one alleged instance of ineffective assistance of trial counsel and

concluded that Mullins was not prejudiced as a result. Consequently, there are not

multiple errors from which to assess any cumulative prejudice. See Cox, 306 Ga. at

743 (2) (e) (appellate courts “evaluate only the effects of matters determined to be

error, not the cumulative effect of non-errors.”) (citation and punctuation omitted).

Judgment affirmed. Doyle, P. J., and Reese, J., concur.