NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: August 21, 2023
S23A0613. WHITTAKER v. THE STATE.
PINSON, Justice.
Appellant Steven Whittaker was convicted of malice murder
and related crimes in connection with the stabbing death of LeBron
Hankins. 1 On appeal, Whittaker contends that (1) the evidence was
insufficient to sustain his convictions for malice and felony murder;
(2) the trial court committed plain error by failing to instruct the
1 Thecrimes occurred on August 17, 2018. On September 4, 2018, a
Walker County grand jury indicted Whittaker for malice murder (Count 1),
felony murder (Count 2), aggravated assault (Count 3), and possession of a
knife during the commission of a felony (Count 4). Whittaker was tried by a
jury from May 24 to 25, 2021. The jury found him guilty of all counts.
Whittaker was sentenced to serve life in prison without the possibility of parole
on Count 1 and five years on Count 4 to be served consecutively to Count 1.
The remaining counts were purportedly merged into Count 1. Whittaker filed
a motion for new trial on June 1, 2021, which he amended twice through new
counsel. Following a hearing, the court denied the motion for new trial on
November 22, 2022. Whittaker filed a timely notice of appeal. The case was
docketed to the April 2023 term of this Court and submitted for a decision on
the briefs.
jury that Whittaker had no duty to retreat; (3) trial counsel gave
constitutionally ineffective assistance in a number of ways; and (4)
the trial court erred by failing to enter an order vacating the
sentence for felony murder. But the evidence was sufficient to
support his malice-murder conviction, and his sufficiency challenge
as to his felony-murder conviction is moot because he was not
sentenced on that count. The trial court did not err by failing to
instruct the jury that Whittaker had no duty to retreat because
retreat was not placed at issue. Whittaker’s counsel did not perform
deficiently in any of the ways Whittaker asserts. And although the
felony-murder count should have been vacated by operation of law,
there is no sentencing error to correct because the error will have no
actual effect on Whittaker’s sentence. So we affirm Whittaker’s
convictions and sentence.
1. Whittaker and Hankins had been friends for decades. But as
one of their neighbors put it, “they weren’t good for each other when
they were drinking.” When they were drinking liquor, “[t]hey’d just
get drunk and want to argue.” While they did not often fight
2
physically, Whittaker would often “verbal[ly] abuse” Hankins when
drunk. Another neighbor noted that Hankins “was scared of
[Whittaker] when they were drunk.” A third neighbor said that
Whittaker was “[b]ad, he’s like Dr. Jekyll and Mr. Hyde” when he
drinks liquor and he was often “bossy” to Hankins. That neighbor
also testified that she had seen Whittaker “slap[] [Hankins] upside
the head” before and that Hankins “was very passive.”
On the evening of August 17, 2018, Whittaker and Hankins
were drinking beer and liquor at Whittaker’s house. Later in the
night, Whittaker called 911 to ask for an ambulance: he told the
operator that Hankins “stabbed me seven times in the d**n gut” and
“I killed him.” He said Hankins had been dead for about an hour.
When Walker County Sherriff’s Deputy Charles Barrett
walked into the house in response to the call, he heard Whittaker
laughing in the kitchen and holding his side, and he saw Hankins
lying on the ground in “an extremely, extremely large pool of blood.”
He noted the blood had coagulated, “[s]o some time had passed
before the 911 call was made.” Deputy Barrett said Whittaker then
3
“fell backwards due to [] being intoxicated.” As he applied pressure
to Whittaker’s wound, Whittaker began laughing again. He told
Deputy Barrett that he and Hankins had been drinking liquor, they
had an argument, and then Hankins stabbed Whittaker in the
stomach. Whittaker said he then blacked out “and when he came to
he disarmed Mr. Hankins and then defended himself.” Whittaker
claimed to have stabbed Hankins two to three times in his upper
body. Whittaker had two stab wounds: one around his navel and
another shallow wound to the left of his rib cage. Once EMS arrived,
Whittaker was taken by ambulance to the hospital for treatment.
Walker County Sherriff’s Office Investigator Eddie Hill
testified that when he arrived, Hankins was lying on his back in a
large pool of blood, and there was so much blood that his face was
unrecognizable. A “massive amount of coagulated blood” had pooled
around Hankins, including “a large amount of blood in the straddletype area” of Hankins’s shorts, which Hill determined was from
Whittaker having sat on Hankins’s stomach. He also saw a “large
gaping hole” in Hankins’s torso, likely a postmortem wound based
4
on the lack of bleeding in that area. And he found a knife with a
black handle and a 3.5-inch partially serrated blade, which had
Hankins’s blood on it.
The next day, Investigator Hill interviewed Whittaker at the
hospital. He testified that Whittaker was not in custody or under
arrest at that point, so he did not read Whittaker his rights under
Miranda. 2 Whittaker told Hill that he and Hankins had been
drinking beer since noon and later had a “stiff drink.” Whittaker
said he had no memories from after the time he spoke with a
neighbor around 7:00 p.m. until he woke up on the kitchen floor and
saw Hankins lying there, at which point he called 911. He then
remembered that Hankins “stabbed me, and I came unglued.” He
did not remember if he and Hankins argued that night. He said
Hankins “claimed he’s a fighter” and “in martial arts,” but that “I
don’t think the man can fight his way out of a paper bag” and that
“[a]nytime I ever scolded him . . . he ducked his head.” Two days
later, Whittaker was arrested.
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
5
A GBI forensic toxicologist testified that Hankins’s bloodalcohol content (BAC) was 0.261. He explained that for an average
social drinker, a person with a 0.261 BAC would have a “rough time”
trying to speak clearly or stand up, but a more experienced drinker
“can appear perfectly sober until you start asking them to do
multiple things, divided attention.” He testified that a “more
experienced drinker” would be someone who drinks daily over the
course of several years.
Dr. Keith Lehman performed Hankins’s autopsy. He testified
that Hankins suffered from 50 stab wounds, most of which were to
the face, neck, and scalp. The stab wounds penetrated all the way to
the bone, one punctured Hankins’s vocal box, one cut his heart, and
one cut his right lung. Patterned wounds on Hankins’s chin
suggested the use of a serrated blade. There were also blunt-force
injuries to the side of Hankins’s face, a fracture of his cervical spine
likely caused by a blow to the head, and evidence of strangulation.
Dr. Lehman determined the manner of death was homicide caused
by a combination of the strangulation, blunt-force injuries, and stab
6
wounds. He explained that Hankins had “a number of injuries . . .
that have a significant lethal potential.”
2. Whittaker contends that the evidence to support his malicemurder conviction was insufficient. 3 In his view, the evidence at
most supported voluntary manslaughter because, according to
Whittaker, Hankins started the fight when he “told Whittaker that
Hankins could fight” while they were both drunk; Hankins
“introduced the knife into the fight by stabbing Whittaker first”; and
“Hankins’ excessive injuries further support that Hankins was
killed during a sudden heat of passion.” See OCGA § 16-5-2 (a) (“A
person commits the offense of voluntary manslaughter when he
causes the death of another human being under circumstances
which would otherwise be murder and if he acts solely as the result
of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable
3 Whittaker also challenges the sufficiency of the evidence to support his
felony-murder conviction. But this challenge is moot because his felony-murder
conviction was vacated by operation of law. See Mills v. State, 287 Ga. 828, 830
(2) (700 SE2d 544) (2010). See Division 5, below.
7
person.”).
When reviewing the sufficiency of the evidence, we view the
evidence presented in the light most favorable to the verdicts to
determine whether a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979). We do not “weigh the evidence on appeal or resolve conflicts
in trial testimony.” Byers v. State, 311 Ga. 259, 266 (2) (857 SE2d
447) (2021) (citation and punctuation omitted). Instead, we defer “to
the jury’s assessment of the weight and credibility of the evidence.”
Jones v. State, 314 Ga. 692, 695 (878 SE2d 502) (2022) (citation and
punctuation omitted). And “[w]hether or not a provocation, if any, is
such a serious provocation as would be sufficient to excite a sudden,
violent, and irresistible passion in a reasonable person, reducing the
offense from murder to manslaughter, is generally a question for the
jury.” Id. (citation and punctuation omitted).
Viewed in the light most favorable to the verdict, the evidence
at trial was sufficient to support Whittaker’s malice-murder
8
conviction.
A person commits the offense of murder when he
unlawfully and with malice aforethought . . . causes the
death of another human being. The State, of course, must
prove malice beyond a reasonable doubt to convict
someone of malice murder, as malice incorporates the
intent to kill. Express malice is that deliberate intention
unlawfully to take the life of another human being which
is manifested by external circumstances capable of proof
. . . . The malice necessary to establish malice murder may
be formed in an instant, as long as it is present at the time
of the killing. It is for the jury to determine from all the
facts and circumstances whether a killing is intentional
and malicious.
Benton v. State, 305 Ga. 242, 244 (1) (a) (824 SE2d 322) (2019)
(citations and punctuation omitted). See also OCGA § 16-5-1 (a).
The evidence authorized the jury to find that Whittaker formed
the intent and malice necessary to convict him of malice murder.
Whittaker and Hankins were drinking alcohol at Whittaker’s home
and got into an argument; according to Whittaker, Hankins stabbed
Whittaker twice 4; and Whittaker stabbed Hankins 50 times,
strangled him, and broke his neck. Evidence of Whittaker’s brutal
4 The State does not argue or suggest that Whittaker caused these stab
wounds himself.
9
and excessive actions in connection with his argument with Hankins
supports the jury’s finding of the requisite malice and intent to
support his malice-murder conviction. See Rose v. State, 287 Ga.
238, 239 (1) (695 SE2d 261) (2010) (holding the evidence was
sufficient to support a malice-murder conviction when, after a
“trivial” argument, defendant stabbed victim 26 times); Campbell v.
State, 278 Ga. 839, 840 (1) (607 SE2d 565) (2005) (holding that the
evidence showing that the defendant initiated the fight, “tackled the
much smaller man as he attempted to flee[,] and repeatedly stabbed
his unarmed victim amply authorized the jury to find malice”);
Frezghi v. State, 273 Ga. 871, 871 (1) (548 SE2d 296) (2001) (holding
that the evidence was sufficient to support a malice-murder
conviction based on “the numerous stab wounds and the cruel and
deliberate nature of the final wound”).
The evidence was also sufficient to authorize the jury to
conclude that the State disproved his affirmative defense of selfdefense beyond a reasonable doubt. See Pritchett v. State, 314 Ga.
767, 770 (1) (879 SE2d 436) (2022). “The use of excessive or unlawful
10
force while acting in self-defense is not justifiable.” Willerson v.
State, 312 Ga. 369, 372 (1) (863 SE2d 50) (2021) (citation and
punctuation omitted). As an initial matter, the jury was authorized
to reject Whittaker’s claim that Hankins was the initial aggressor
given the evidence about their relationship and his bullying of
Hankins. And in any event, the jury was authorized to find that
Whittaker was not acting in self-defense when he killed Hankins
given the “brutality of the attack” and the “extent of the victim’s
injuries” in comparison to Whittaker’s relatively minor injuries. Id.
at 373 (1) (holding that the evidence was sufficient to support the
malice-murder conviction over the defendant’s claim of self-defense
“[g]iven the brutality of the attack against the victim, the extent of
the victim’s injuries, and the fact that [the defendant] suffered no
injuries in the altercation”); Jimmerson v. State, 289 Ga. 364, 367
(1) (711 SE2d 660) (2011) (holding that the evidence was sufficient
to overcome the defendant’s justification defense when the
defendant disarmed one victim, then shot both unarmed victims and
continued shooting them after they had fallen to the ground); Clark
11
v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999) (jury was properly
instructed that “[t]he use of excessive force or unlawful force while
acting in self-defense is not justifiable”).
Whittaker argues that the evidence supported only a conviction
for voluntary manslaughter, on which the jury had been instructed,
and not malice murder. But the evidence here authorized the jury to
reject his claim that he acted “solely as the result of a sudden,
violent, and irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a) (voluntary manslaughter). The evidence authorized the jury
to reject Whittaker’s claim that Hankins was the initial aggressor,
and it in any event showed that Whittaker’s response to Hankins’s
statement about being a fighter and alleged initial stabbing of
Whittaker was disproportionate and brutal: he stabbed Hankins
more than 50 times (possibly sitting on Hankins while stabbing
him), strangled him, broke his neck, and laughed when police
officers responded. The evidence was not sufficient as a matter of
law to support a finding of serious provocation that would excite
12
such passion in a reasonable person. See Merritt v. State, 292 Ga.
327, 331 (2) (737 SE2d 673) (2013) (“[W]ords alone generally are not
sufficient provocation to excite the passion necessary to give rise to
voluntary manslaughter.” (citation and punctuation omitted)). And
the jurors also could have disbelieved Whittaker’s assertion that he
“came unglued” after he was stabbed, such that he contends he met
the legal requirements for voluntary manslaughter. See Moore v.
State, 314 Ga. 351, 354-355 (877 SE2d 174) (2022) (jury authorized
to discredit the defendant’s testimony). Moreover, Whittaker’s
contention that Hankins stated he was a fighter and stabbed
Whittaker first would support Whittaker’s justification defense
(which there was sufficient evidence to disprove) and not that he
reacted passionately. See Dugger v. State, 297 Ga. 120, 124 (7) (772
SE2d 695) (2015) (“The distinguishing characteristic between
[voluntary manslaughter and self-defense] is whether the accused
was so influenced and excited that he reacted passionately rather
than simply in an attempt to defend himself.” (citation and
punctuation omitted)). Thus, this claim fails.
13
3. Whittaker contends that the trial court erred by failing to
instruct the jury that he had no duty to retreat before using deadly
force in self-defense. See OCGA § 16-3-23.1.5 Because he did not
object to the trial court’s failure to give this instruction, he must
show that the omission amounted to plain error. See OCGA § 17-8-58 (b). To show plain error, Whittaker must establish that “(1) the
alleged error was not affirmatively waived, (2) it was obvious beyond
reasonable dispute, and (3) it affected the appellant’s substantial
rights, which ordinarily means showing that it affected the outcome
of the trial.” Moore v. State, 315 Ga. 263, 272-273 (4) (882 SE2d 227)
(2022). If a defendant makes that showing, the appellate court has
the discretion to remedy the error only if the error “seriously affected
the fairness, integrity, or public reputation of judicial proceedings.”
Id. at 273 (4) (citation and punctuation omitted).
5 The instruction at issue provided:
One who is not the aggressor is not required to retreat before being
justified in using such force as is necessary for personal defense or
in using force that is likely to cause death or great bodily harm if
one reasonably believes such force is necessary to prevent death or
great bodily injury to oneself or a third person or to prevent the
commission of a forcible felony.
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2020) § 3.10.13.
14
Whittaker has failed to show an obvious error here. The noduty-to-retreat instruction is required only when “the issue of
retreat is raised by the evidence or placed in issue.” See White v.
State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) (“Where self-defense is
the sole defense, and the issue of retreat is raised by the evidence or
placed in issue, the defense is entitled to a charge on the principles
of retreat.” (cleaned up)); Higginbotham v. State, 287 Ga. 187, 189-190 (4) (695 SE2d 210) (2010) (holding that the no-duty-to-retreat
instruction was not warranted when the issue of retreat was not
raised by the evidence). But the State never argued that Whittaker
should have retreated. Whittaker argues that the State “introduced
the ‘retreat’ concept” by presenting the evidence of his “bullying” of
and prior difficulties with Hankins, but he does not explain how this
evidence amounted to an argument—or even asked the jury to
infer—that Whittaker should have retreated. And that evidence had
a much more obvious purpose: it was relevant to show that
Whittaker bullied Hankins when the two were drinking, which
tended to undermine Whittaker’s theory of self-defense. In any
15
event, nothing in the record suggests the State used this evidence to
argue that Whittaker should have retreated. Absent any indication
in the record that the duty to retreat was placed at issue, the trial
court did not commit any obvious error by not giving a no-duty-toretreat instruction. See Hoffler v. State, 292 Ga. 537, 542 (4) (739
SE2d 362) (2013) (“Without evidence to warrant the [no-duty-toretreat instruction], it cannot be said that the failure to give it was
error.”); White, 291 Ga. at 9 (2) (issue of retreat “not raised by the
evidence so as to support the giving of a charge on the subject” where
“the defendant testified and was not questioned as to why he did not
leave the scene”).
Moreover, Whittaker has not shown that the failure to include
that charge affected his substantial rights, particularly where the
trial court thoroughly instructed the jury on the general principles
of self-defense. See Shaw v. State, 292 Ga. 871, 873-874 (2) (742
SE2d 707) (2013) (holding that, in light of the court’s extensive
instructions on self-defense, including circumstances in which force
is justified, the reasonableness of a belief that force is necessary, and
16
threats or menaces that may lead to such a reasonable belief, the
defendant failed to show that the failure to charge on duty to retreat
probably affected the outcome of the trial); Edmonds v. State, 275
Ga. 450, 453 (4) (569 SE2d 530) (2002) (“[E]ven assuming that
retreat was in issue and [defendant’s] sole defense was self-defense,
the failure to charge on the lack of duty to retreat would not require
reversal because [defendant’s] defense of self-defense was fairly
presented to the jury,” and the trial court fully instructed the jury
on the law of justification and self-defense.). So this claim fails.
4. Whittaker argues that his counsel provided ineffective
assistance in a number of ways. To prevail on a claim of ineffective
assistance, a defendant must show that his counsel’s performance
was deficient and that he suffered prejudice as a result. See
Strickland v. Washington, 466 U.S. 668, 687-694 (III) (A)-(B) (104
SCt 2052, 80 LE2d 674) (1984). A claim of ineffective assistance fails
if the defendant does not establish either deficient performance or
prejudice. See Lee v. State, 314 Ga. 724, 727 (1) (879 SE2d 416)
(2022).
17
To establish that counsel’s performance was deficient, a
defendant “must demonstrate that the lawyer performed his duties
in an objectively unreasonable way, considering all the
circumstances and in the light of prevailing professional norms.”
Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
(citation and punctuation omitted). There is a “strong presumption
that counsel performed reasonably,” and to overcome that
presumption, a defendant must show “that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Id. (citation and punctuation omitted). In
particular, “[d]ecisions regarding trial tactics and strategy may form
the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such
a course.” Id. (citation and punctuation omitted).
To establish prejudice, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Evans v. State, 315 Ga.
607, 611 (2) (b) (884 SE2d 334) (2023) (citation and punctuation
18
omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Lee, 314 Ga. at 727 (1)
(citation and punctuation omitted).
(a) Whittaker contends that his counsel provided ineffective
assistance by failing to pursue a motion to suppress the statement
he gave at the hospital on the grounds that he was in custody and
should have been advised of his rights under Miranda. 6
Trial counsel did not render deficient performance by not
pursuing suppression of Whittaker’s hospital statement because the
motion would have failed. See Williams v. State, 315 Ga. 797, 806
(2) (884 SE2d 877) (2023) (“[F]ailing to file a meritless motion is not
deficient performance.”). “Miranda warnings are required only
when a person is interviewed by law enforcement while in custody.”
Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation
and punctuation omitted). And a person is only “in custody” for
6 Before trial, defense counsel moved to exclude any “confessions,
admissions or statements” made by Whittaker. But the record does not show
an order granting or denying this motion, and the transcripts do not show a
Jackson-Denno hearing. See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12
LE2d 908) (1964).
19
Miranda purposes “if he has been formally arrested or his freedom
of movement has been restrained to the degree associated with a
formal arrest.” Id. (citation and punctuation omitted). But the record
shows that when Whittaker was at the hospital, he was being
treated for his injuries, there was no evidence that he was restrained
in any way, the investigator asked questions about the incident
without isolating him, and there is no indication from the record that
he was either told he had to answer those questions or that he could
not leave. And Whittaker does not argue that he was restrained or
unable to leave. These circumstances do not amount to the degree of
restraint associated with a formal arrest. See, e.g., Jennings v. State,
282 Ga. 679, 681 (3) (653 SE2d 17) (2007) (concluding that the
defendant was not in custody when he “was in a medical, rather than
an investigative, setting” and when he was questioned by police
officers in the hospital while unable to leave for medical reasons but
not isolated by the police).
Even if a motion to suppress Whittaker’s statement could have
succeeded, trial counsel had a reasonable strategic basis for not
20
seeking to suppress the statement. Counsel testified that he believed
that Whittaker’s statement at the hospital that “[Hankins] stabbed
me and I came unglued” supported his voluntary manslaughter
defense, and that “manslaughter was the only shot we had.” Opting
not to pursue a motion to suppress, even if it had merit, to ensure
that key evidence in support of his defense would be available was a
reasonable trial strategy that does not amount to deficient
performance. See Thomas v. State, 311 Ga. 280, 286 (2) (857 SE2d
223) (2021).
(b) Whittaker contends that his counsel should have requested
a jury instruction on mutual combat. “Mutual combat occurs when
there is combat between two persons as a result of a sudden quarrel
or such circumstances as indicate a purpose, willingness, and intent
on the part of both to engage mutually in a fight.” Ramirez v. State,
307 Ga. 550, 552 (2) (837 SE2d 328) (2019) (citation and punctuation
omitted). Whittaker contends that the mutual-combat instruction
should have been requested because it was part of his defense theory
and strategy to pursue the lesser-included offense of voluntary
21
manslaughter.
The decision to request—or not request—a jury instruction is
a strategic decision and will not constitute deficient performance
unless such decision was “so patently unreasonable that no
competent attorney would have chosen [it].” Ramirez, 307 Ga. at 553
(2). At the motion-for-new-trial hearing, trial counsel testified that
“we hoped to be able to show the jury that this was mutual combat,”
but he did not request the instruction “[b]ecause that defense eroded
very quickly once the trial started.” He also explained that a mutualcombat defense “would have hurt our ability at the time we did
closing argument because I would be making an argument to the
jury which was totally ridiculous.” This explanation finds support in
the record, which shows that Whittaker claimed that Hankins
attacked him first—not that the two agreed to fight—and that he
killed Hankins in self-defense. “Evidence that the victim attacked
the defendant, such that would give rise to justification based on
self-defense, is not a basis for an instruction on mutual combat.”
Moore v. State, 307 Ga. 290, 296 (4) (835 SE2d 610) (2019). And even
22
if the evidence might have supported an argument that the fight and
resulting death happened as the result of a “sudden quarrel,”
Ramirez, 307 Ga. at 552 (2), declining to advance a relatively weak
theory (or, as trial counsel put it, a “totally ridiculous” one) to
preserve credibility with the jury was a reasonable strategic
decision, and thus not deficient performance.
(c) Whittaker contends that his counsel should have objected to
the court’s instruction on alcoholism because no evidence supported
the charge, which he says generally prejudiced him.
At the request of the State, the trial court included in its charge
to the jury Georgia Pattern Jury Instructions § 3.60.10: Voluntary
Intoxication, No Excuse and § 3.60.30 Voluntary Intoxication:
Alcoholism, No Defense for Crime. Trial counsel did not object. As to
alcoholism, the court instructed:
Ladies and gentlemen, alcoholism is not involuntary and
it’s no defense to any criminal act. A person who knows
that he suffers from a chronic alcohol drinking problem or
knows that he or she suffers from alcoholism may not
intentionally and voluntarily induce or bring on a state of
intoxication and then be excused from the commission of
23
a criminal act during the voluntarily induced intoxicated
state.
Assuming without deciding that trial counsel performed
deficiently, Whittaker has failed to establish prejudice. He offers
nothing more than a conclusory argument that the instruction was
prejudicial, and in light of the strong evidence of Whittaker’s guilt,
omitting the instruction would not have given rise to a reasonable
probability of a different outcome. See Mangold, 253 Ga. App. at 372
(2) (explaining that “even assuming that the court improperly
charged the jury [on alcoholism], we find that this instruction was
not prejudicial to Mangold,” where undisputed evidence showed that
the defendant shot the victim after waving a gun around); Green v.
State, 190 Ga. App. 130, 130 (2) (378 SE2d 178) (1989) (holding that
the alcoholism and voluntary intoxication instructions “were not
prejudicial to defendant” in light of the trial court’s full charge to the
jury).
(d) Whittaker contends that his counsel performed deficiently
by failing to request a jury instruction that he had no duty to retreat.
24
As discussed in Division 3 above, the no-duty-to-retreat instruction
was not warranted because retreat was not raised by the evidence
or put in issue. See White, 291 Ga. at 8-9 (2); Higginbotham, 287 Ga.
at 189-190 (4). Because the instruction was not supported by the
evidence, the failure to request the instruction was not deficient
performance. See Morton v. State, 306 Ga. 492, 499 (4) (c) (831 SE2d
740) (2019); Higginbotham, 287 Ga. at 192 (5) (e) (“Since it was not
error to fail to give a charge on no duty to retreat . . . trial counsel’s
failure to object to the lack of such a charge was not deficient
performance.”).
(e) Whittaker contends that counsel should have objected to the
verdict form. The verdict form was printed with the counts of the
indictment and blanks where the jury could write “guilty” or “not
guilty.” To the right of Counts 1 and 2 for malice murder and felony
murder, the trial court handwrote “voluntary manslaughter”
followed by a blank. Whittaker contends that the handwritten lines
for voluntary manslaughter to the right of the indicted counts
violated Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992),
25
by requiring the jury to improperly reach a verdict on the murder
count before considering voluntary manslaughter. He argues that no
Georgia precedent says that a handwritten blank for a lesserincluded offense for consideration only after the jury has reached a
verdict on the murder count is appropriate.
Trial counsel was not deficient for failing to object to the verdict
form because the verdict form was not improper. “In deciding
whether a verdict form accurately presented the law and properly
guided the jury, this Court reviews the language of the form along
with the trial court’s instructions to the jury.” Atkins v. State, 310
Ga. 246, 252 (3) (850 SE2d 103) (2020). So long as the trial court
properly instructs the jury on the lesser offenses and how to fill in
the verdict form, there is no error merely because the verdict form
does not expressly list the lesser offenses. See id. at 252-253 (3);
Jones v. State, 303 Ga. 496, 503-504 (V) (813 SE2d 360) (2018). Here,
the trial court properly instructed the jury on how to read and fill
out the verdict form, including the handwritten portion. The court
explained, “[B]efore you would be authorized to return a verdict of
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guilty of malice murder or felony murder, you must first determine
whether mitigating circumstances, if any, would cause the offense
to be reduced to voluntary manslaughter.” The court also noted that,
when filling out the verdict form, the jury should “[take] into
consideration the lesser included offenses on Counts 1 and 2 for
voluntary manslaughter.” While Whittaker is right that we have not
specifically addressed a verdict form with handwritten lines for
lesser offenses to the right of the charged counts, we have upheld
verdict forms that did not include any lines for lesser offenses when
the trial court properly instructed the jury on the lesser offenses and
how to complete the verdict form. See Jones, 303 Ga. at 503-504 (V);
Buttram v. State, 280 Ga. 595, 599 (13) (631 SE2d 642) (2006).
(f) Finally, Whittaker asks the Court to consider the
cumulative prejudicial effect of his counsel’s errors. But because
Whittaker has not established more than one instance of deficiency,
we need not address cumulative prejudice. See Scott v. State, 309
Ga. 764, 771 (3) (d) (848 SE2d 448) (2020) (“Assessing cumulative
prejudice is necessary only when multiple errors have been shown,
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and [the appellant] has not established even one instance in which
trial counsel was deficient.”).
5. Finally, Whittaker contends that the trial court erred by
failing to enter a separate order vacating his sentence for felony
murder after it orally granted his motion to modify the sentence. The
State correctly concedes that the felony-murder count should have
been recorded as vacated by operation of law rather than merged.
See Manner v. State, 302 Ga. 877, 890-891 (IV) (808 SE2d 681)
(2017). But the incorrect nomenclature does not affect Whittaker’s
sentence, so there is no sentencing error to correct. See Washington,
313 Ga. at 772-773 (2).
Judgment affirmed. All the Justices concur.
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