Tarpley v. State

In the Supreme Court of Georgia
Decided: February 8, 2016
S15A1457. TARPLEY v. THE STATE.
HUNSTEIN, Justice.
Appellant Hoke Smith Tarpley was convicted of malice murder in
connection with the shooting death of his uncle, Earnest Claude Estes, and
sentenced to life imprisonment. Tarpley now appeals, challenging the
admissibility of certain evidence, the trial court’s jury instructions, and the
manner in which the trial court handled certain reciprocal discovery violations.
Finding no error, we affirm.1
Viewed in a light most favorable to the jury’s verdicts, the evidence
adduced at trial established as follows. In the early-morning hours of February
1
In June 2006, a Laurens County grand jury returned an indictment charging
Tarpley with malice murder and felony murder. A trial was held June 17-20, 2008,
and a jury found Tarpley guilty of both offenses; he was sentenced to life
imprisonment for malice murder. Tarpley, through trial counsel, filed a motion for
new trial on July 8, 2008, which was later amended on August 22, 2011, and April
21, 2014. Following an August 2014 hearing, the trial court denied the amended
motion on October 21, 2014, and Tarpley filed his notice of appeal on October 31,
2014. This appeal was docketed to the September 2015 term of this Court and was
thereafter submitted for decision on the briefs.
9, 2006, deputies from the Laurens County Sheriff’s Department responded to
a report of a shooting in Caldwell, Georgia. Upon arrival, deputies discovered
Estes slumped over on a couch, dead from gunshot wounds. Family members
led the deputies to Tarpley – whose residence was situated on an adjacent lot –
who provided a statement to the officers. Tarpley advised the deputies that he
and Estes had been at Estes’ residence watching television and drinking alcohol
when Estes “snapped” and physically assaulted him. Tarpley reported that Estes
choked him and placed a cocked gun against his head; he explained that, once
he was able to leave Estes’ residence, he retreated to his own home where he
retrieved a 12-gauge shotgun, and he returned to Estes’ property where he shot
Estes twice through the front-yard window. The jury heard evidence, however,
that Estes’ revolver was found unloaded and holstered on a coffee table and that,
although Tarpley appeared to have some type of facial injury, there was no sign
of a struggle at Estes’ residence; likewise, the jury also learned that, despite
Tarpley’s contention that Estes saw and threatened Tarpley through the window,
the poor lighting outside of Estes’ residence would have hindered Estes from
seeing Tarpley in the front yard.
1. Though Tarpley has not enumerated the general grounds, we have
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concluded that the evidence as summarized above was sufficient to enable a
rational trier of fact to conclude beyond a reasonable doubt that he was guilty
of malice murder. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
LE2d 560) (1979).
2. Tarpley first argues that the trial court erred in refusing to allow the
introduction of evidence of prior specific acts of violence by the victim.
Generally, the character of a victim is neither relevant nor admissible in a
murder trial. See Austin v. State, 268 Ga. 602 (2) (492 SE2d 212) (1997).
However, this court in Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991),2
concluded that such evidence may be admissible when a defendant claims
justification. To permit the admission of such evidence, Tarpley was, at a
minimum, required to (1) follow the procedural requirements for introducing the
evidence, (2) establish the existence of prior violent acts by competent evidence,
and (3) make a prima facie showing of justification. See Laster v. State, 268 Ga.
172 (2) (486 SE2d 153) (1997). See also Uniform Superior Court Rule 31.6
2
This Court has previously noted that Chandler was superseded by the
new evidence code. See Hendrix v. State, 298 Ga. 60, 62, n.2 (779 SE2d 322)
(2015). Tarpley’s trial, however, was conducted years before the effective date
of the new evidence code.
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(B). “To make this prima facie showing, the defendant must show that the
victim was the aggressor, the victim assaulted the defendant, and the defendant
was honestly trying to defend himself.” Laster, 268 Ga. at 174. Here, the trial
court concluded that Tarpley failed to make a prima facie case of justification;
we review that decision for abuse of discretion. See Smith v. State, 292 Ga. 316(2) (737 SE2d 677) (2013).
Even viewing the evidence in a light most favorable to Tarpley, he left
Estes’ residence, walked to his own residence – covering approximately 132
yards – and then made the return trip with a shotgun, after which he shot Estes
through a window. Though Tarpley testified that he was pursued and shot at by
Estes after he left Estes’ residence, Tarpley acknowledges that, after he returned
to his own residence to retrieve the shotgun, he was unsure of Estes’ location
and sought him out. While Tarpley contends that “his home was not a place of
safety” because he believed that he was still in danger when he arrived home,
his argument is premised on Chapman v. State, 258 Ga. 214 (367 SE2d 541)
(1988), a “battered woman’s syndrome” case which is clearly inapposite here.
The trial court’s conclusion that Tarpley had failed to establish a prima facie
case of justification is supported by the record, and the trial court did not abuse
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its discretion here. See Shackelford v. State, 270 Ga. App. 12, 14-15 (1) (606
SE2d 22) (2004) (trial court did not abuse its discretion in excluding evidence
of prior violent acts by the victim where the evidence showed that, while the
victim was the initial aggressor, the defendant escaped from the altercation,
proceeded to the garage to retrieve a board, and then bludgeoned the victim to
death with that board).
3. Tarpley next challenges the trial court’s refusal to charge on voluntary
manslaughter, the trial court’s decision to use the word “imminent” in its no-
duty-to-retreat charge, and the trial court’s failure to give a missing-evidence
charge. Tarpley’s arguments are without merit.
(a) Tarpley argues that, in denying his request for a jury instruction on
voluntary manslaughter, the trial court relied only on the “obvious”
interpretations of voluntary manslaughter. See OCGA § 16-5-2. According to
Tarpley, the trial court failed to recognize that “[f]ear of some danger can be
sufficient provocation to excite the passion necessary for voluntary
manslaughter.” Miller v. State, 223 Ga. App. 311, 311 (477 SE2d 430) (1996).
As this Court has explained before, however,
[w]hile jury charges on self-defense and voluntary manslaughter are
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not mutually exclusive, the provocation necessary to support a
charge of voluntary manslaughter is different from that which will
support a claim of self-defense. The distinguishing characteristic
between the two claims is whether the accused was so influenced
and excited that he reacted passionately rather than simply in an
attempt to defend himself. Only where this is shown will a charge
on voluntary manslaughter be warranted.
Browning v. State, 283 Ga. 528, 529-530 (2) (a) (661 SE2d 552) (2008). “A
charge on voluntary manslaughter is not available to a defendant whose own
statement unequivocally shows that he was not angered or impassioned when
a killing occurred, and when the other evidence does not show otherwise.”
(Footnote omitted.) Worthem v. State, 270 Ga. 469, 471(2) (509 SE2d 922)
(1999). Tarpley’s statements to police and trial testimony do not indicate that
he killed Estes out of some irresistible passion – whatever the source of that
passion – but, instead, that the killing occurred because Tarpley was “very
afraid” of Estes that night; further, there is no other evidence indicating that the
shooting here arose out of passion rather than fear. The trial court correctly
concluded that there was no evidence to support a charge of voluntary
manslaughter. See Jackson v. State, 282 Ga. 494, 498 (4) (651 SE2d 702)
(2007) (holding that no voluntary manslaughter charge was warranted where
“‘at best, [the] evidence shows that [Appellant] was attempting to repel an
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attack, not that he was so angered that he reacted passionately’” (citation
omitted)).
(b) Tarpley next argues that the trial court erred in adding the word
“imminent” to the no-duty-to-retreat jury instruction. Tarpley contends that the
word “imminent” is not found in the pattern jury instructions and that, by adding
the word imminent to the instruction, the trial court narrowed the scope of
justification law “beyond anything established by precedent.” He also argues
that the word “imminent” makes the instruction vague and could cause
confusion. We disagree. “A trial court’s refusal to give a jury charge in the
exact language requested by a defendant is not error if the charge given by the
trial court substantially covers the applicable principles of law.” Keita v. State,
285 Ga. 767, 771 (4) (684 SE2d 233) (2009). As Tarpley acknowledges, the no-
duty-to-retreat instruction used by the trial court here was from the Pattern Jury
Instructions prepared by the Council of Superior Court Judges; while Tarpley
would have apparently preferred that the instruction not include the word
“imminent,” the instruction accurately stated the legal principle at issue and was
unlikely to cause confusion. There was no error.
(c) Finally, Tarpley asserts that a “missing evidence charge was warranted
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in this case, as the investigation in this case ignored and failed to produce
numerous pieces of evidence.” However, aside from specifying what evidence
and investigative avenues Tarpley contends that law enforcement missed, he
fails to support this jury-instruction claim with argument or citation of authority.
“We will not consider such bare bones claims,” and this argument is deemed
abandoned. See Zamora v. State, 291 Ga. 512, 516 (6) (731 SE2d 658) (2012).
4. Tarpley next contends that the trial court abused its discretion by
refusing to exclude the medical examiner as a witness when the State violated
the reciprocal discovery requirements by failing to include the medical
examiner’s name on a witness list and by failing to provide the defense with a
copy of the autopsy report. See OCGA § 17-16-4. Tarpley asserts that the
untimely disclosure of the medical examiner as a witness prevented him from
learning that the medical examiner “had pending forgery charges and had been
disciplined for inappropriate conduct by the [Georgia Bureau of Investigation]”
and using that information to impeach the medical examiner. He also asserts
that, because he did not receive a timely copy of the autopsy report, he did not
learn until halfway through trial that swabbings from Estes hands had not been
tested for gunshot residue.
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“When the State fails to comply with reciprocal discovery requirements,
the trial court may, pursuant to OCGA § 17-16-6, ‘order the state to permit the
discovery or inspection, ... grant a continuance, or, upon a showing of prejudice
and bad faith, prohibit the state from introducing the evidence not disclosed.’”
Brown v. State, 281 Ga. App. 557, 559 (636 SE2d 717) (2006). Exclusion of
evidence “is a particularly harsh sanction and should be imposed only where
there is a showing of prejudice to the defense and bad faith by the State.”
(Citations omitted.) Higuera–Hernandez v. State, 289 Ga. 553, 557-558 (3)
(714 SE2d 236) (2011). We review the trial court’s decision here for abuse of
discretion. See Bryant v. State, 288 Ga. 876 (9) (b) (708 SE2d 362) (2011).
The trial court here remedied the discovery violation in the following
ways: Tarpley was allowed to interview the medical examiner; the trial court
continued the trial to allow the gunshot residue test to be completed; once it was
determined that there was gunshot residue on Estes’ hands, Tarpley was
permitted to interview the individual who performed the gunshot-residue test
and call him as a witness; and the parties were permitted to conduct an
additional voir dire of the jury to address the two new witnesses. While Tarpley
contends on appeal that the trial court should have excluded the testimony of the
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medical examiner, Tarpley has failed to establish prejudice sufficient to warrant
such a harsh sanction; notably, Tarpley acknowledged that he killed Estes, and
he has failed to demonstrate that his inability to impeach the medical examiner
hindered his defense. Likewise, Tarpley takes issue with the fact that the
gunshot-residue expert testified that the residue on Estes’ hands could have
come from the shots that killed Estes; while Tarpley contends that, with
additional time, he could have found an alternative expert to counter this
“preposterous notion,” he points to no evidence supporting such a contention.
In light of the lack of prejudice resulting from the discovery violations, the trial
court exercised sound discretion here. See Norris v. State, 289 Ga. 154, 156 (2)
(709 SE2d 792) (2011) (recognizing that remedies for discovery violations may
include affording the defense the opportunity to interview the witness and
granting a continuance).
5. Finally, Tarpley asserts that the trial court abused its discretion when
it refused to re-open the evidence to allow the defense to adduce photos, that
had not been previously provided to the State, showing the lighting conditions
outside of Estes’ residence. Tarpley also argues that trial counsel was
ineffective for failing to ensure that the photos were produced to the State and
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adduced at trial.
“Whether to reopen the evidence is a matter which rests within the sound
discretion of the trial court,” and this Court considers the totality of the
circumstances in evaluating the exercise of that discretion. Carruth v. State, 267
Ga. 221, 221 (476 SE2d 739) (1996). The photographs here were not taken
until sometime during trial, they were not provided to the State, and Tarpley
sought to adduce the photos only after the jury had been informed that the
evidence had been closed. In light of these facts, we cannot say that the trial
court abused its discretion here.3
With respect to his claim that trial counsel was ineffective, Tarpley must
show both that counsel’s performance was deficient and that the deficient
performance was prejudicial. See Terry v. State, 284 Ga. 119, 120 (2) (663
SE2d 704) (2008). “If an appellant fails to meet his or her burden of proving
either prong . . . the reviewing court does not have to examine the other prong.”
Rector v. State, 285 Ga. 714, 716 (6) (681 SE2d 157) (2009). The photos here
were merely cumulative of other witnesses’ descriptions of the property and
3
The record does not support Tarpley’s assertion that the exclusion of the
photographs was a sanction for some discovery violation.
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Tarpley’s own testimony that Estes could see him through the front window.
Further, while Tarpley asserts that the photos would have bolstered his defense,
the photos at issue would have had the equal force of reiterating the undisputed
fact that Tarpley sought out Estes and ended up in his yard with a shotgun.
Accordingly, there is no prejudice, and this claim is meritless.
Judgment affirmed. All the Justices concur.
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