SEARS, Chief Justice.
A Fulton County jury convicted Michael Hayes of felony murder, aggravated assault, and possession of a firearm in the commission of a felony in connection with the shooting death of Dejuan McCrary.
On appeal, Hayes contends that the trial court failed to properly instruct the jury regarding the relationship between felony murder and voluntary manslaughter, in accordance with this Court’s decision in
Edge v. State.
Because the trial court’s instructions to the jury were not improper, we affirm.
1. The evidence presented at trial showed that Hayes and Dejuan McCrary, the victim, had a history of violent altercations. Two months prior to the shooting, for example, McCrary allegedly beat Hayes with a pistol, requiring Hayes to obtain numerous stitches above his right eye. Witnesses testified that Hayes had vowed to get revenge against McCrary for the attack.
In the late night hours of August 22, 2002, Hayes saw McCrary on the street while Hayes was driving near the Grady Homes housing project. Hayes got out of the car, approached McCrary, and shot him. Witnesses testified that after Hayes returned to his car, he ran back toward the victim and shot him again. When Hayes got back to his car to flee the area, he told his companions that he “should have killed [McCrary].” McCrary died later in the hospital.
Hayes claimed at trial that on the night in question, McCrary had threatened him because Hayes was considering reporting Mc-Crary to the police for a separate robbery. Although Hayes testified that McCrary was armed and fired his gun at Hayes, other witnesses testified that only Hayes was armed, and that only one gun was fired.
After reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that there was sufficient evidence for a rational trier of fact to find Hayes guilty beyond a reasonable doubt of the crimes for which he was convicted.
2. Hayes claims that the trial court failed to properly instruct the jury that they could not convict him of felony murder if they found sufficient provocation or passion to justify a conviction for voluntary manslaughter. In Edge,
this Court recognized that a felony murder conviction would be improper where the jury found sufficient provocation or passion with respect to the act that caused the killing to
support a conviction for voluntary manslaughter. Therefore, where there is evidence that would support a voluntary manslaughter conviction, the jury should be instructed to consider that evidence before it makes its decision regarding felony murder. It is inappropriate in such cases to give the jury “a sequential charge requiring [it] to consider voluntary manslaughter
only
if [it has] considered and found the defendant not guilty of malice murder and felony murder.”
The intent of
Edge
was to prevent trial courts from authorizing juries to “find defendants guilty of felony murder without consideration of evidence of provocation or passion which might authorize a verdict of voluntary manslaughter.”
But the trial court in this case did not authorize the jury to convict Hayes of felony murder before considering voluntary manslaughter, as proscribed in
Edge.
Rather, the trial court did just the opposite, telling the jury that “before you would be authorized to return a verdict of guilty of malice or felony murder, you must first determine whether mitigating evidence, if any, would cause the offense to be reduced to voluntary manslaughter.” In the next instruction, the court defined voluntary manslaughter for the jury and admonished it to consider evidence of passion and provocation.
Hayes argues that under this Court’s decision in
Russell v. State,
his conviction must be reversed because the trial court never directly stated that a finding of voluntary manslaughter precluded a conviction for felony murder. To the extent that
Russell
sets forth such a rule, however, it has been modified by more recent cases.
This Court does “not require the trial courts to follow an exact formula in instructing juries so long as the charge as a whole ensures that the jury will consider whether evidence of provocation and passion might authorize a verdict of voluntary manslaughter.”
As a whole, the
instruction in this case did not prevent the jury “from fully considering voluntary manslaughter,”
and was adequate to inform the jury that before they could convict of malice or felony murder, they must first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter.
3. Hayes also contends that his trial attorney rendered ineffective assistance by failing to object during closing argument when the State put Hayes’s character in issue and wrongfully accused him of an unrelated crime by stating that Hayes had defrauded the government by collecting supplemental security income assistance for a mental disability. In order to prevail on a claim of ineffective assistance of counsel, Hayes must show that the actions of his attorney were deficient and that there is a reasonable probability that but for the deficient performance, the outcome of the trial would have been different.
In this case, he must show that no reasonable attorney would have failed to object to the State’s closing argument, and that had his attorney properly objected, Hayes would have been entitled to a mistrial or would not have been convicted.
Hayes raised these claims in his motion for a new trial, but did not subpoena his trial counsel to testify about the reasons, if any, for failing to object. The trial court denied the claim because Hayes failed to show that trial counsel’s decision not to object was unreasonable or that it adversely affected the outcome of the trial. The trial court’s findings regarding ineffective assistance of counsel will be upheld unless they are clearly erroneous.
We find that the trial court’s conclusions are not clearly erroneous.
Hayes has failed to overcome the strong presumption that his counsel’s conduct fell within the broad range of reasonable professional conduct.
He “made no affirmative showing that the purported . . . deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.”
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SEARS, Chief Justice.
A Fulton County jury convicted Michael Hayes of felony murder, aggravated assault, and possession of a firearm in the commission of a felony in connection with the shooting death of Dejuan McCrary.
On appeal, Hayes contends that the trial court failed to properly instruct the jury regarding the relationship between felony murder and voluntary manslaughter, in accordance with this Court’s decision in
Edge v. State.
Because the trial court’s instructions to the jury were not improper, we affirm.
1. The evidence presented at trial showed that Hayes and Dejuan McCrary, the victim, had a history of violent altercations. Two months prior to the shooting, for example, McCrary allegedly beat Hayes with a pistol, requiring Hayes to obtain numerous stitches above his right eye. Witnesses testified that Hayes had vowed to get revenge against McCrary for the attack.
In the late night hours of August 22, 2002, Hayes saw McCrary on the street while Hayes was driving near the Grady Homes housing project. Hayes got out of the car, approached McCrary, and shot him. Witnesses testified that after Hayes returned to his car, he ran back toward the victim and shot him again. When Hayes got back to his car to flee the area, he told his companions that he “should have killed [McCrary].” McCrary died later in the hospital.
Hayes claimed at trial that on the night in question, McCrary had threatened him because Hayes was considering reporting Mc-Crary to the police for a separate robbery. Although Hayes testified that McCrary was armed and fired his gun at Hayes, other witnesses testified that only Hayes was armed, and that only one gun was fired.
After reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that there was sufficient evidence for a rational trier of fact to find Hayes guilty beyond a reasonable doubt of the crimes for which he was convicted.
2. Hayes claims that the trial court failed to properly instruct the jury that they could not convict him of felony murder if they found sufficient provocation or passion to justify a conviction for voluntary manslaughter. In Edge,
this Court recognized that a felony murder conviction would be improper where the jury found sufficient provocation or passion with respect to the act that caused the killing to
support a conviction for voluntary manslaughter. Therefore, where there is evidence that would support a voluntary manslaughter conviction, the jury should be instructed to consider that evidence before it makes its decision regarding felony murder. It is inappropriate in such cases to give the jury “a sequential charge requiring [it] to consider voluntary manslaughter
only
if [it has] considered and found the defendant not guilty of malice murder and felony murder.”
The intent of
Edge
was to prevent trial courts from authorizing juries to “find defendants guilty of felony murder without consideration of evidence of provocation or passion which might authorize a verdict of voluntary manslaughter.”
But the trial court in this case did not authorize the jury to convict Hayes of felony murder before considering voluntary manslaughter, as proscribed in
Edge.
Rather, the trial court did just the opposite, telling the jury that “before you would be authorized to return a verdict of guilty of malice or felony murder, you must first determine whether mitigating evidence, if any, would cause the offense to be reduced to voluntary manslaughter.” In the next instruction, the court defined voluntary manslaughter for the jury and admonished it to consider evidence of passion and provocation.
Hayes argues that under this Court’s decision in
Russell v. State,
his conviction must be reversed because the trial court never directly stated that a finding of voluntary manslaughter precluded a conviction for felony murder. To the extent that
Russell
sets forth such a rule, however, it has been modified by more recent cases.
This Court does “not require the trial courts to follow an exact formula in instructing juries so long as the charge as a whole ensures that the jury will consider whether evidence of provocation and passion might authorize a verdict of voluntary manslaughter.”
As a whole, the
instruction in this case did not prevent the jury “from fully considering voluntary manslaughter,”
and was adequate to inform the jury that before they could convict of malice or felony murder, they must first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter.
3. Hayes also contends that his trial attorney rendered ineffective assistance by failing to object during closing argument when the State put Hayes’s character in issue and wrongfully accused him of an unrelated crime by stating that Hayes had defrauded the government by collecting supplemental security income assistance for a mental disability. In order to prevail on a claim of ineffective assistance of counsel, Hayes must show that the actions of his attorney were deficient and that there is a reasonable probability that but for the deficient performance, the outcome of the trial would have been different.
In this case, he must show that no reasonable attorney would have failed to object to the State’s closing argument, and that had his attorney properly objected, Hayes would have been entitled to a mistrial or would not have been convicted.
Hayes raised these claims in his motion for a new trial, but did not subpoena his trial counsel to testify about the reasons, if any, for failing to object. The trial court denied the claim because Hayes failed to show that trial counsel’s decision not to object was unreasonable or that it adversely affected the outcome of the trial. The trial court’s findings regarding ineffective assistance of counsel will be upheld unless they are clearly erroneous.
We find that the trial court’s conclusions are not clearly erroneous.
Hayes has failed to overcome the strong presumption that his counsel’s conduct fell within the broad range of reasonable professional conduct.
He “made no affirmative showing that the purported . . . deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.”
Counsel may have strategically chosen not to object to avoid highlighting the comments made by the State.
Further, because the fact that Hayes collected disability had been introduced at trial, there is no reason to believe Hayes would have
been deserving of a mistrial had his attorney objected after that evidence was mentioned again by the State during closing argument.
Decided September 19, 2005.
Eric J. Taylor, Kenneth D. Kondritzer, Stephen R. Scarborough,
for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anne E. Green, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Jason C. Fisher, Assistant Attorney General,
for appellee.
4. Finally, Hayes claims that the trial court committed reversible error by failing to charge the jury not to consider Hayes’s general character or prior conduct when deliberating his guilt or innocence in this case. He argues that the State’s comments regarding his receipt of governmental benefits were “so inflammatory as to guarantee his conviction.” “In a criminal case, it is incumbent upon the trial judge, with or without request, to give the appropriate instructions as to the law on each substantive point or issue involved in the case, but the trial court is not required to charge without written request as to any collateral matter.”
Because trial counsel did not request an instruction regarding Hayes’s character or prior conduct, the trial court had no duty to give one.
Judgment affirmed.
All the Justices concur.