308 Ga. 438 FINAL COPY
S20A0202. HATNEY v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, Cornelius Hatney was convicted of
felony murder predicated on aggravated assault in connection with
the beating death of Etate Essang. Hatney appeals, contending that
the trial court erred in refusing to give a requested jury instruction
on voluntary manslaughter as a lesser offense of the charges of
malice murder and felony murder. For the reasons set forth below,
we affirm Hatney’s conviction.1
1 The crimes occurred on October 10, 2008. On May 1, 2009, a Lowndes
County grand jury returned an indictment charging Hatney with malice murder, felony murder (predicated on aggravated assault), and aggravated assault. Following a jury trial ending on August 3, 2010, Hatney was found not guilty of malice murder and guilty of felony murder and aggravated assault. The trial court sentenced Hatney to life imprisonment for felony murder. The sentencing order indicated that aggravated assault merged with the felony murder conviction. On August 31, 2010, Hatney filed a timely motion for a new trial, which he amended on February 25, 2016. Following a hearing on September 16, 2016, the trial court denied Hatney’s motion for a new trial on July 21, 2017, and Hatney filed a timely notice of appeal. The case was docketed in this Court for the term beginning in December 2019 and orally argued on January 16, 2020. Viewed in the light most favorable to the verdict,2 the evidence
presented at trial showed the following. On October 10, 2008, an
inmate who was in the day room at Valdosta State Prison saw
Hatney — who was known as “Little Swoll” because of his size and
build — Essang, and a few other inmates go into a cell on the lower
level of the split-level dormitory. The inmate heard sounds of a
scuffle emanating from the cell. After a few minutes, it got quiet.
Then Hatney dragged Essang out of the cell by his feet; Essang was
wrapped in a sheet. Hatney dragged Essang up the steps to the day
room, laid him down and, while wearing boots, jumped on his head.
Hatney repeatedly kicked Essang in the head and hit him in the
head several times with a garbage can lid. Throughout this attack,
according to several inmates, Hatney screamed, “he was jacking on
me.” At trial, an inmate explained that the term “jacking” means
masturbating.
After hearing a loud noise, a correctional officer went to
2 See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979). investigate. When he entered the dormitory, he saw Hatney kicking
Essang, who was lying face down on the floor, motionless. Hatney
yelled to the officer, “he was jacking on me.” The officer ordered
Hatney to stop kicking Essang, and he put himself between the two
inmates. The officer called for backup and medical assistance. When
other officers arrived, Hatney submitted to being handcuffed.
One of the officers responding to the call for backup brought a
video camera and recorded the events as a nurse checked on
Essang’s condition. Essang’s feet were tied with a piece of towel, and
his hands were tied with strips of a sheet. When the staff rolled
Essang’s body over, his face “looked like hamburger,” as described
by one officer. The shift supervisor noticed that Essang’s eyes were
out of alignment, suggesting that he had sustained serious head
trauma, so the supervisor called for an ambulance and directed staff
members to take Essang to the infirmary. Medical staff found that
Essang had several deep vertical cuts on his back and buttocks.
Three officers escorted Hatney to the segregation unit. One of
the officers walked behind Hatney and used the video camera to record Hatney’s behavior en route. The video-recording was played
at trial, and all three officers testified regarding Hatney’s
statements. The video-recording shows that Hatney spontaneously
told the officers that he “did it” because Essang was “trying to jack
his d*ck off me.” Hatney said that the incident began when he
caught Essang spying on him in the shower. Hatney stated that he
pulled back the shower curtain and demanded to know what Essang
was doing. According to Hatney, Essang responded, “You know what
I’m doing. . . . I’m going to try you on some gay sh*t.” Hatney stated
that he told Essang to “stay right there,” put on his boots,3 knocked
Essang out with one punch, tied him up, and dragged him “up and
down” the steps. An officer asked how Essang got the cuts on his
back side, and Hatney said the cuts probably came from him
dragging Essang across the sharp edge of the steps and over railings.
Hatney volunteered repeatedly that he beat Essang because Essang
was “jacking” on him, and Hatney was not “about [any] homosexual
3 Hatney did not specify when he got dressed after showering, but the
video recording shows that he was dressed when the first correctional officer intervened. stuff.” He likened Essang’s conduct to an attempted sexual assault.
Hatney said he “straighten[ed] him out,” and “did it for all the young
folks” that might come into the prison so that, if Essang, who was
over six feet tall, lived, he would never again “try [anybody who was]
weak” or “short” with any “gay sh*t,” because he would know that
they “might do how Little Swoll did.” Hatney claimed that he was
also showing the rest of the inmates that they should not disrespect
him like Essang had done. After being advised of his Miranda4
rights, Hatney agreed to answer questions; he continued to insist
that “he did it because the dude was jacking on him.”
After a month in the hospital, Essang succumbed to his injuries
and died from complications of blunt force trauma to the head.
Hatney was charged with committing malice murder, felony
murder, and aggravated assault by striking Essang with a trash can
lid and kicking Essang with his feet, “objects which when used
offensively against a person, in the manner then and there used,
4 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). [are] likely to result in serious bodily injury[.]”5
1. Hatney does not challenge the sufficiency of the evidence.
Nevertheless, as is our customary practice in murder cases, we have
independently reviewed the record and conclude that the evidence
presented at trial was legally sufficient to authorize a rational trier
of fact to find beyond a reasonable doubt that he was guilty of felony
murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979).
2. Hatney contends that the trial court erred when it refused
to give a requested pattern jury instruction on voluntary
manslaughter as a lesser offense of both malice murder and felony
murder predicated on aggravated assault. Voluntary manslaughter
is the killing of another person under circumstances that would
otherwise be murder when the killer
acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person;
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308 Ga. 438 FINAL COPY
S20A0202. HATNEY v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, Cornelius Hatney was convicted of
felony murder predicated on aggravated assault in connection with
the beating death of Etate Essang. Hatney appeals, contending that
the trial court erred in refusing to give a requested jury instruction
on voluntary manslaughter as a lesser offense of the charges of
malice murder and felony murder. For the reasons set forth below,
we affirm Hatney’s conviction.1
1 The crimes occurred on October 10, 2008. On May 1, 2009, a Lowndes
County grand jury returned an indictment charging Hatney with malice murder, felony murder (predicated on aggravated assault), and aggravated assault. Following a jury trial ending on August 3, 2010, Hatney was found not guilty of malice murder and guilty of felony murder and aggravated assault. The trial court sentenced Hatney to life imprisonment for felony murder. The sentencing order indicated that aggravated assault merged with the felony murder conviction. On August 31, 2010, Hatney filed a timely motion for a new trial, which he amended on February 25, 2016. Following a hearing on September 16, 2016, the trial court denied Hatney’s motion for a new trial on July 21, 2017, and Hatney filed a timely notice of appeal. The case was docketed in this Court for the term beginning in December 2019 and orally argued on January 16, 2020. Viewed in the light most favorable to the verdict,2 the evidence
presented at trial showed the following. On October 10, 2008, an
inmate who was in the day room at Valdosta State Prison saw
Hatney — who was known as “Little Swoll” because of his size and
build — Essang, and a few other inmates go into a cell on the lower
level of the split-level dormitory. The inmate heard sounds of a
scuffle emanating from the cell. After a few minutes, it got quiet.
Then Hatney dragged Essang out of the cell by his feet; Essang was
wrapped in a sheet. Hatney dragged Essang up the steps to the day
room, laid him down and, while wearing boots, jumped on his head.
Hatney repeatedly kicked Essang in the head and hit him in the
head several times with a garbage can lid. Throughout this attack,
according to several inmates, Hatney screamed, “he was jacking on
me.” At trial, an inmate explained that the term “jacking” means
masturbating.
After hearing a loud noise, a correctional officer went to
2 See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979). investigate. When he entered the dormitory, he saw Hatney kicking
Essang, who was lying face down on the floor, motionless. Hatney
yelled to the officer, “he was jacking on me.” The officer ordered
Hatney to stop kicking Essang, and he put himself between the two
inmates. The officer called for backup and medical assistance. When
other officers arrived, Hatney submitted to being handcuffed.
One of the officers responding to the call for backup brought a
video camera and recorded the events as a nurse checked on
Essang’s condition. Essang’s feet were tied with a piece of towel, and
his hands were tied with strips of a sheet. When the staff rolled
Essang’s body over, his face “looked like hamburger,” as described
by one officer. The shift supervisor noticed that Essang’s eyes were
out of alignment, suggesting that he had sustained serious head
trauma, so the supervisor called for an ambulance and directed staff
members to take Essang to the infirmary. Medical staff found that
Essang had several deep vertical cuts on his back and buttocks.
Three officers escorted Hatney to the segregation unit. One of
the officers walked behind Hatney and used the video camera to record Hatney’s behavior en route. The video-recording was played
at trial, and all three officers testified regarding Hatney’s
statements. The video-recording shows that Hatney spontaneously
told the officers that he “did it” because Essang was “trying to jack
his d*ck off me.” Hatney said that the incident began when he
caught Essang spying on him in the shower. Hatney stated that he
pulled back the shower curtain and demanded to know what Essang
was doing. According to Hatney, Essang responded, “You know what
I’m doing. . . . I’m going to try you on some gay sh*t.” Hatney stated
that he told Essang to “stay right there,” put on his boots,3 knocked
Essang out with one punch, tied him up, and dragged him “up and
down” the steps. An officer asked how Essang got the cuts on his
back side, and Hatney said the cuts probably came from him
dragging Essang across the sharp edge of the steps and over railings.
Hatney volunteered repeatedly that he beat Essang because Essang
was “jacking” on him, and Hatney was not “about [any] homosexual
3 Hatney did not specify when he got dressed after showering, but the
video recording shows that he was dressed when the first correctional officer intervened. stuff.” He likened Essang’s conduct to an attempted sexual assault.
Hatney said he “straighten[ed] him out,” and “did it for all the young
folks” that might come into the prison so that, if Essang, who was
over six feet tall, lived, he would never again “try [anybody who was]
weak” or “short” with any “gay sh*t,” because he would know that
they “might do how Little Swoll did.” Hatney claimed that he was
also showing the rest of the inmates that they should not disrespect
him like Essang had done. After being advised of his Miranda4
rights, Hatney agreed to answer questions; he continued to insist
that “he did it because the dude was jacking on him.”
After a month in the hospital, Essang succumbed to his injuries
and died from complications of blunt force trauma to the head.
Hatney was charged with committing malice murder, felony
murder, and aggravated assault by striking Essang with a trash can
lid and kicking Essang with his feet, “objects which when used
offensively against a person, in the manner then and there used,
4 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). [are] likely to result in serious bodily injury[.]”5
1. Hatney does not challenge the sufficiency of the evidence.
Nevertheless, as is our customary practice in murder cases, we have
independently reviewed the record and conclude that the evidence
presented at trial was legally sufficient to authorize a rational trier
of fact to find beyond a reasonable doubt that he was guilty of felony
murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979).
2. Hatney contends that the trial court erred when it refused
to give a requested pattern jury instruction on voluntary
manslaughter as a lesser offense of both malice murder and felony
murder predicated on aggravated assault. Voluntary manslaughter
is the killing of another person under circumstances that would
otherwise be murder when the killer
acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person;
5 See OCGA § 16-5-21 (a) (2) (A person commits the offense of aggravated
assault when he or she assaults “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”). however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
OCGA § 16-5-2 (a). A trial court is required to give a requested
charge on voluntary manslaughter if there is slight evidence of the
elements of OCGA § 16-5-2 (a). See Keita v. State, 285 Ga. 767, 770
(2) (684 SE2d 233) (2009).
Hatney contends that he was entitled to a voluntary
manslaughter instruction because there was evidence that Essang
seriously provoked him and that he killed Essang solely as the result
of a sudden, violent, and irresistible passion excited by the
provocation. Hatney also argues that the failure to give the
instruction likely affected the outcome of his trial. The fact that the
jury found him not guilty of malice murder, he contends, shows that
the jury did not believe the killing was done with malice, and it is
therefore likely, he claims, that, if the jury had been instructed on
adequate provocation, the jury would have found him guilty of
voluntary manslaughter. Assuming without deciding that the evidence in this case
warranted a jury instruction on voluntary manslaughter, we
conclude that any error in failing to give the requested jury
instruction was harmless. The test for determining whether a
nonconstitutional instructional error was harmless is “whether it is
highly probable that the error did not contribute to the verdict. And
in determining whether such an error is harmless, we assess the
evidence from the viewpoint of reasonable jurors, not in the light
most favorable to the verdicts.” Henry v. State, 307 Ga. 140, 146 (2)
(c) (834 SE2d 861) (2019) (citations and punctuation omitted). Even
if the jury had found that Essang’s conduct in the shower area was
enough to provoke a sudden, violent, and irresistible passion in a
reasonable person under OCGA § 16-5-2 (a), the evidence presented
— including Hatney’s own statements immediately after he beat
Essang — also showed that a significant period of time elapsed
between the alleged provocation and Hatney’s extensive beating of
Essang in the day room. During that interval, Hatney prepared for
the attack by dressing and putting on his boots and by incapacitating Essang by knocking him out, tying his hands and
feet, and wrapping him in a sheet. During that interval, Hatney also
moved Essang to multiple locations: into the lower-level cell, out of
the cell, “up and down” the steps, and into the day room, where he
assaulted Essang by hitting him with a garbage can lid and
repeatedly kicking him. See Barron v. State, 297 Ga. 706, 708 (2)
(777 SE2d 435) (2015) (voluntary manslaughter instruction not
warranted where the evidence showed, inter alia, a substantial
amount of time between the alleged provocation by the victim, a
fellow prison inmate, and the attack, during which interval the
defendant went to his cell, had a conversation with his cellmate,
located a weapon, and went to find the victim); see also Stork v.
State, 303 Ga. 21, 22-23 (1) (b) (810 SE2d 81) (2018); Sears v. State,
298 Ga. 400, 404 (1) (b) (782 SE2d 259) (2016); Smith v. State, 296
Ga. 731, 737-738 (3) (770 SE2d 610) (2015). In addition, Hatney
described his motives for the attack to include commanding respect
from other inmates and protecting vulnerable inmates from
Essang’s predations, which are more demonstrative of deliberation than irresistible passion. Considering all of the evidence, and
weighing the evidence and defenses raised by Hatney at trial as we
believe reasonable jurors would, we conclude that, if the jury had
been instructed on voluntary manslaughter and had found the
serious provocation required to reduce murder to voluntary
manslaughter, it is highly probable that the jury would also have
found an intervening cooling-off period sufficient to preclude a
voluntary manslaughter verdict. Accordingly, any error was
harmless. See Noel v. State, 297 Ga. 698, 701 (3) (777 SE2d 449)
(2015).6
6 See also Hinton v. State, 304 Ga. 605, 607-608 (2) (820 SE2d 712) (2018)
(In reviewing a claim of ineffective assistance of counsel, where the evidence of the appellant’s guilt of felony murder predicated on aggravated assault was strong, and any evidence supporting a voluntary manslaughter theory was weak, at best, the appellant failed to establish a reasonable probability that the jury would have reached a different result, even if counsel had renewed his request and secured a jury instruction on voluntary manslaughter.); Blackwell v. State, 302 Ga. 820, 827 (3) (809 SE2d 727) (2018) (In reviewing a claim of ineffective assistance of counsel, where the evidence of the appellant’s guilt of malice murder was strong, any slight evidence supporting a voluntary manslaughter theory was insufficient to establish a reasonable probability that, if counsel had requested and secured a jury instruction on voluntary manslaughter, the jury would have returned a guilty verdict on voluntary manslaughter rather than murder.); Fuller v. State, 278 Ga. 812, 814 (2) (b) (607 SE2d 581) (2005) (In reviewing a claim of ineffective assistance of counsel, where the evidence of the appellant’s guilt of malice murder was strong, there 3. Hatney contends that the trial court failed to properly merge
the sentence for aggravated assault into the sentence for felony
murder. This argument lacks merit. The record shows that,
although the trial court verbally pronounced a sentence for
aggravated assault at the sentencing hearing, the trial court’s
written judgment correctly indicated that aggravated assault
merged with felony murder; no sentence was imposed for aggravated
assault.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Blackwell, Boggs, Peterson, Warren, and Bethel, JJ., concur.
DECIDED APRIL 6, 2020. Murder. Lowndes Superior Court. Before Judge Tunison. Ian Bucy, for appellant. Bradfield M Shealy, District Attorney, Michelle T. Harrison, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.
was not a reasonable probability that, if the jury had been charged on voluntary manslaughter, the jury would have returned a manslaughter verdict.).