HINES, Presiding Justice.
John Thurston Hites appeals the denial of his motion for new trial, as amended, and his conviction for felony murder while in the commission of aggravated assault in connection
The evidence construed in favor of the verdicts showed the following. At the time of the murder, Che Mitchem was living with his wife, Linda Mitchem Schultz, in Atkinson County. Schultz had previously been married to Hites, and Hites was then dating Schultz's sister, Lisa Hamlin. The day before the murder, on August 21, 2010, Hamlin became upset with Schultz, regarding some remarks Schultz had made concerning Hamlin and Hites's relationship. Hamlin and Hites walked to Schultz and Mitchem's home; before going, Hamlin said that she was "going to beat [Schultz's] ass," and Hites stated that he was accompanying Hamlin and "didn't want to have to kill somebody for hurting [Hamlin]." Hamlin knocked on her sister's front door, and Schultz opened it and came out onto the porch; the two sisters immediately began to fight. Schultz fell to the ground, and Hamlin got on top of her. Mitchem emerged from the house and pulled Hamlin off of Shultz. Hites then "came over" and began to fight with Mitchem. Hites pulled out a knife and stabbed Mitchem repeatedly. Mitchem fell to the ground, bleeding profusely. Shultz called 911. Hites fled.
Mitchem died as the result of multiple sharp force injuries. At the time of the fatal stabbing, neither Mitchem nor the two women were wielding a knife or other weapon. Agents with the Georgia Bureau of Investigation ("GBI") arrived at the scene and found a folding knife soaked with Mitchem's blood and located in the grass in the direction in which Hites had fled. That evening, Hites texted former in-laws that he had stabbed Mitchem "because [Mitchem] grabbed a hold of [Hamlin]," and that he was not sure how many times he had stabbed Mitchem, "but several." Hites asked for help getting clean clothes, but then warned them not to come to get him or they would be an "accessory to."
1. The evidence was sufficient to enable a rational trier of fact to find Hites guilty beyond a reasonable doubt of the felony murder of Mitchem while in the commission of aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Hites contends that the trial court erred in allowing the State, over objection, to introduce into evidence a certified copy of his 1994 federal conviction for mail fraud,
Hall v. State, 292 Ga. 701, 702(2), 743 S.E.2d 6 (2013) (Citation and quotation marks omitted.)
3. Hites next contends that the trial court erred when it refused to allow him to testify as to "what Mitchem had said at the time he was stabbed as it was part of the res gestae."
It appears that Hites is complaining about the trial court sustaining an objection by the State to Hites testifying about what he heard Mitchem uttering before Mitchem emerged from the house and just prior to the fatal encounter.
However, that is not the end of the inquiry because a trial court's ruling with regard to the admissibility of evidence as part of the res gestae is subject to a harmless error analysis. Johnson v. State, 292 Ga. 785, 789(4), 741 S.E.2d 627 (2013). Applying such analysis, the error must be deemed harmless in this case. Hites gives no hint as to what statements by the victim he was unable to recount. But, it is plain from the trial colloquy and the hearing on the motion for new trial that Hites was attempting to buttress his claim of self-defense by showing that the victim was dangerously enraged just prior to the fatal stabbing. And, Hites was permitted to give ample testimony to that effect.
4. Lastly, Hites contends that his trial counsel was ineffective for failing to sufficiently raise his claim of self-defense and to subpoena "material" phone records. In order for Hites to prevail on his claim that his trial counsel was ineffective, he has to show, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that his counsel's performance was deficient and that, but for the deficiency, there was a reasonable probability of an outcome at trial that was more favorable to him. Allen v. State, 293 Ga. 626, 627(2), 748 S.E.2d 881 (2013). To satisfy the showing of deficiency under Strickland, Hites has to overcome the strong presumption that his trial counsel's performance was within the broad range of reasonable professional conduct, the reasonableness of which is judged from counsel's perspective at the time of trial and under the particular circumstances then existing in the case. Id. The second showing of prejudice requires that he demonstrate the reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. Hites does not make these showings.
Hites states that his "chief concern" is that his trial counsel "never followed-up," on his claim of self-defense by offering testimony at trial from his sister, Littrell, and/or by subpoenaing phone records regarding evidence that Hites acted in self-defense, notably evidence that Littrell had been sent texts from Hites's former sister-in-law, Register, to the effect that Hites had acted in self-defense. Hites urges that with this documentation of the texts, the jury would have had the opportunity to see that Schultz's and Hamlin's
To begin with, contrary to what Hites now asserts, at the motion-for-new-trial hearing Littrell testified that the text or texts at issue were from Hamlin, not from Register.
Insofar as Hites asserts that trial counsel's alleged errors, considered collectively, show that the representation was so deficient as to constitute ineffective assistance, such assertion has no merit because Hites has not demonstrated the ineffectiveness of trial counsel in any of the ways claimed. Hoffler v. State, 292 Ga. 537, 543(5), 739 S.E.2d 362 (2013).
Judgments affirmed.
All the Justices concur, except HUNSTEIN, J., who concurs in judgment only as to Division 2.