298 Ga. 314
FINAL COPY


                       S15A1365. SIMPSON v. THE STATE.


       BLACKWELL, Justice.

       Joshua Samuel Simpson was tried by a Walker County jury and convicted

of murder and aggravated assault, both in connection with the killing of Michael

Wyscaver. Simpson appeals, contending that the evidence is legally insufficient

to sustain his convictions, that the trial court erred both when it admitted certain

photographs of the victim and when it charged the jury, and that he was denied

the effective assistance of counsel. Upon our review of the record and the briefs,

we conclude that the aggravated assault should have merged with the murder,

and so, we vacate the separate conviction and sentence as to aggravated assault.

We see no other error, however, and we otherwise affirm the judgment of the

trial court.1

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        Wyscaver was killed in August 2008. Simpson was indicted on November 3, 2008
and charged with malice murder, felony murder, and aggravated assault. His trial commenced
on December 8, 2009, and the jury returned its verdict three days later, finding him not guilty
of malice murder and guilty on both of the other counts. Simpson was sentenced to
imprisonment for life for felony murder and a concurrent term of imprisonment for twenty
years for aggravated assault. Simpson timely filed a motion for new trial on December 11,
2009, and he amended it on August 3, 2011, again on August 15, 2012, again on December
12, 2012, again on February 4, 2013, again on April 15, 2013, and yet again on June 12,
       1. Viewed in the light most favorable to the verdict, the evidence shows

that Wyscaver’s decomposing body was found in an abandoned house on

August 29, 2008. Prior to the discovery of his body, his conservator had not

seen or heard from Wyscaver for a couple of weeks. A forensic examination

indicated that Wyscaver had died of blunt force trauma to his head. A computer

monitor, a computer tower, and some two-by-four pieces of wood were lying on

the floor next to his body.

       Soon after the discovery of the body, police officers interviewed Simpson,

who was an acquaintance of Wyscaver. Simpson admitted that about two weeks

earlier, Wyscaver had suggested that they look in the abandoned house for items

they could sell. When Simpson bent over to pick something up, Wyscaver

approached him from behind, placed one hand on his shoulder and one hand on

his lower stomach, and said that they could “do something to have fun together.”

Simpson said that he “freaked out” as a result of these advances, punched

Wyscaver in the face, grabbed a two-by-four, and began hitting Wyscaver in the



2013. The trial court denied his motion on January 20, 2015. Simpson timely filed a notice
of appeal to the Court of Appeals on January 28, 2015, and the case was transferred to this
Court on March 25, 2015, where it was docketed for the September 2015 term and submitted
for decision on the briefs.

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head with it. When the wood broke, Simpson picked up a computer tower and

struck Wyscaver in the head with it. Simpson claimed that Wyscaver then tried

to get back up, so Simpson hit Wyscaver in the head with the computer monitor

and fled the scene. In the days following the attack, Simpson did not return to

the abandoned home, fearing that he would find Wyscaver dead. Simpson

confided in his uncle that he had been in a fight with Wyscaver at the abandoned

house and had hit him with a computer.

       Simpson claims that the evidence is not sufficient to prove beyond a

reasonable doubt that he was the person who committed any of the crimes

charged. But his statement was corroborated by police investigators, the medical

examiner, and Simpson’s uncle. See Wise v. State, 292 Ga. 447, 449 (1) (738

SE2d 580) (2013). Viewing the evidence in the light most favorable to the

verdict, as we must, we conclude that the evidence was more than sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt that Simpson

was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443

U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).2

       2
         Simpson also argues that the trial court should have exercised its discretion to grant
a new trial, and this Court should now do so, because the verdict of the jury is “contrary to
. . . the principles of justice and equity,” OCGA § 5-5-20, and because the verdict is

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       2. Simpson contends that the trial court erred when it admitted certain

photographs of the victim as evidence because their probative value was

outweighed by their prejudicial effect. Some of the photographs to which

Simpson objects show Wyscaver’s body at the scene of the crime, and others

show the body just before the autopsy. Those crime-scene and pre-autopsy

photographs were properly admitted into evidence “to show the nature and

extent of the wounds and the location of physical evidence at the scene, as well

as to assist the testimony of the medical examiner.” Leslie v. State, 292 Ga. 368,

372 (5) (738 SE2d 42) (2013). See also Wilcher v. State, 291 Ga. 613, 614 (2)

(732 SE2d 81) (2012).

       The remaining photographs in question show Wyscaver’s skull after all

the soft tissue had been removed. “As we have explained, a photograph that


“decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. This Court,
however, does not have the authority and discretion to grant a new trial on these grounds,
commonly known as the “general grounds.” Slaton v. State, 296 Ga. 122, 125 (2) (765 SE2d
332) (2014) (citation omitted). As an appellate court, we cannot consider whether the verdict
is consistent with the weight of the evidence or the principles of justice and equity, and our
review is limited instead to the legal sufficiency of the evidence. See Cotton v. State, 297 Ga.
257, 258 (1) (773 SE2d 242) (2015). Furthermore, even when asked “to review a trial court’s
refusal to grant a new trial on the general grounds, this Court must review the case under the
standard set forth in Jackson v. Virginia, supra.” Allen v. State, 296 Ga. 738, 741 (2) (770
SE2d 625) (2015) (punctuation omitted). And as already explained, the evidence in this case
meets that standard.

                                               4
depicts the victim after autopsy incisions is admissible when necessary to show

some material fact which becomes apparent only because of the autopsy.”

McKibbins v. State, 293 Ga. 843, 852 (5) (750 SE2d 314) (2013) (citation and

punctuation omitted). In this case, the record includes eighteen post-autopsy

photographs of Wyscaver’s skull, but only six of them — which Simpson

conceded were not duplicative — were admitted into evidence and presented to

the jury. See Stewart v. State, 286 Ga. 669, 670 (3) (690 SE2d 811) (2010). And

the forensic anthropologist who assisted the medical examiner testified that

these photographs showed different injuries that were identified only upon

examining the exposed skull. Moreover, this evidence corroborated Simpson’s

statements that he repeatedly struck Wyscaver in the head. Consequently, the

trial court did not abuse its discretion when it admitted the post-autopsy

photographs. See McKibbins, 293 Ga. at 852-853 (5); Carr v. State, 265 Ga. 477

(1) (457 SE2d 559) (1995) (photograph of the victim’s skull demonstrated

material facts concerning the cause of death, blunt head trauma, and was

admissible to assist the pathologist in describing the cause of death). See also

Spears v. State, 296 Ga. 598, 612 (10) (769 SE2d 337) (2015); Bunnell v. State,

292 Ga. 253, 258 (5) (735 SE2d 281) (2013).

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      3. Simpson next claims that three of the trial court’s jury charges were

improper under the evidence. But he objected to one of those charges only at the

charge conference. See OCGA § 17-8-58 (a). See also Merritt v. State, 292 Ga.

327, 330 (2) (737 SE2d 673) (2013). And Simpson failed to object to another

charge on the specific ground that he now raises on appeal. See OCGA § 17-8-

58 (a). See also Woodard v. State, 296 Ga. 803, 806 (2) (771 SE2d 362) (2015);

Colzie v. State, 289 Ga. 120, 124-125 (4) (710 SE2d 115) (2011). Accordingly,

appellate review of each of these two charges is available only to the extent that

the giving of the charge constituted plain error affecting the substantial rights

of the parties. See Woodard, 296 Ga. at 806 (2); Merritt, 292 Ga. at 330 (2). Yet

Simpson has not explained how either charge lacks evidentiary support, much

less how it satisfies the “plain error” standard. See State v. Kelly, 290 Ga. 29,

32 (1), n. 2 (718 SE2d 232) (2011) (“parties should be advised that the hurdle

to establishing plain error is high . . . , and therefore that the failure to

specifically articulate how the alleged error satisfies this high standard increases

the likelihood that their claims in this regard will be rejected”).

      Nevertheless, we have reviewed the charges in light of the record, and we

conclude that the evidence supported both of the charges that are subject to

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“plain error” review. One of these charges is the pattern instruction on causation

in a homicide case and has been approved by this Court. See Suggested Pattern

Jury Instructions, Vol. II: Criminal Cases, § 2.10.60 (4th ed. 2007, updated

through July 2015); Milford v. State, 291 Ga. 347, 350 (3) (d) (729 SE2d 352)

(2012); Green v. State, 266 Ga. 758, 759-760 (2) (b) (470 SE2d 884) (1996).

That charge finds an evidentiary basis in Simpson’s own statement admitting

that he used multiple weapons to inflict head injuries on Wyscaver, as well as

the evidence that blunt head trauma consistent with use of those weapons caused

his death. See Brady v. State, 159 Ga. App. 389, 390 (2) (283 SE2d 617) (1981).

The other charge that we review for plain error is the pattern instruction on the

use of excessive or unlawful force while acting in self-defense and also has been

approved by this Court. See Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases, § 3.16.20 (4th ed. 2007, updated through July 2015); Welbon v.

State, 278 Ga. 312, 313 (3) (602 SE2d 610) (2004). This charge was supported

by the assertion of a justification defense at trial, as well as the evidence that

Simpson severely beat Wyscaver in the head with a variety of weapons in

response to a single inappropriate nonviolent touching and suggestive remark.

Accordingly, neither of these jury charges amounts to plain error.

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      Simpson did preserve his objection to the portion of the charge on

voluntary manslaughter that reads as follows: “If there should have been an

interval between the provocation and the killing sufficient for the voice of

reason and humanity to be heard, which the jury in all cases shall decide, the

killing may be attributed to revenge and be punished as for murder.” This charge

is an optional part of the pattern instruction on voluntary manslaughter and has

been approved by this Court. See Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases, § 3.10.41 (4th ed. 2007, updated through July 2015); Barron v.

State, 261 Ga. 814, 815-816 (3) (411 SE2d 494) (1992). Although Simpson does

not explain on appeal how this charge lacks evidentiary support, he specifically

asserted in the trial court that the State presented no evidence of an interval

between the provocation and killing. The trial court indicated that the interval

could be short and was a jury question in light of the evidence that Simpson kept

changing weapons when Wyscaver was already on the ground and Simpson had

the option to stop. Regardless, the language of this pattern instruction is an

integral part of our voluntary manslaughter statute, OCGA § 16-5-2 (a), and its

inclusion in the voluntary manslaughter charge is no cause for a new trial in the

face of a contention that there was insufficient evidence of an interval between

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the alleged provocation and the homicide. Anderson v. State, 196 Ga. 468 (4)

(26 SE2d 755) (1943).

      4. Finally, Simpson contends that he was denied the effective assistance

of counsel because his trial lawyer failed to preserve and use a peremptory strike

on a juror who was employed by the sheriff of a neighboring county. To prevail

on his claim of ineffective assistance, Simpson must prove both that the

performance of his lawyer was deficient and that he was prejudiced by this

deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer

was deficient, Simpson must show that the lawyer performed his duties at trial

in an objectively unreasonable way, considering all the circumstances, and in the

light of prevailing professional norms. Id. at 687-688 (III) (A). See also

Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d

305) (1986). And to prove that he was prejudiced by the performance of his

lawyer, Simpson must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor,

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529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389) (2000). This burden is

a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C). See also Muse v. State,

293 Ga. 647, 650 (2) (748 SE2d 904) (2013). We conclude that Simpson has

failed to carry his burden.

      “Which, and how many, prospective jurors to strike is a quintessential

strategic decision.” Shields v. State, 307 Ga. App. 830, 832 (1) (a) (706 SE2d

187) (2011). The juror who Simpson claims should have been stricken was the

thirtieth prospective juror in the jury array. He was a detention officer with the

Catoosa County Sheriff’s Office but was not subject to a strike for cause. See

Prince v. State, 277 Ga. 230, 235 (3) (587 SE2d 637) (2003). At the hearing on

the motion for new trial, Simpson’s trial lawyer testified that he should have

reserved a strike for that juror because, “in retrospect looking back,” the

“negatives” of the prospective jurors whom he did strike were not as negative

as permitting this detention officer to serve on the jury. But “hindsight has no

place in an assessment of the performance of trial counsel, and a lawyer second-

guessing his own performance with the benefit of hindsight has no significance

for an ineffective assistance of counsel claim.” Shaw v. State, 292 Ga. 871, 876

(3) (a) (742 SE2d 707) (2013). See also Strickland, 466 U. S. at 689 (II).

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Although the lawyer at one point in his testimony rejected a characterization of

his use of peremptory strikes as strategic, an examination of his entire testimony

shows that his decisions about which prospective jurors to accept (and which to

strike) were, in fact, strategic. See Shields, 307 Ga. App. at 832 (1) (a); Stephens

v. State, 224 Ga. App. 184, 186 (3) (480 SE2d 235) (1997). He described his

decision not to save a strike as a “judgment call” and not the “better choice,” and

he testified that this was the first time that he could recall actually reaching the

thirtieth prospective juror before filling the jury. Furthermore, Simpson’s trial

lawyer admitted that he had valid reasons for the nine strikes that he did make.

We cannot say under the circumstances of this case that no competent attorney

would have struck the jury as this lawyer did. See Barmore v. State, 323 Ga.

App. 377, 381 (2) (746 SE2d 289) (2013). Consequently, Simpson has not

demonstrated deficient performance with respect to the selection of a jury.

      Moreover, Simpson has failed to demonstrate a reasonable probability that

the allegedly deficient performance of his trial lawyer changed the outcome of

the trial. Simpson has not raised even the slightest possibility that the juror at

issue was not qualified, and Simpson has made no showing that the juror

harbored any prejudice toward Simpson or was disinclined to acquit him based

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on reasons other than the arguments and evidence presented at trial. See Eason

v. State, 331 Ga. App. 59, 67 (4) (c) (769 SE2d 772) (2015). And there is no

indication that any of the prospective jurors who were stricken by Simpson’s

lawyer were more favorably inclined toward his case than the juror at issue who

actually was selected. See Shields, 307 Ga. App. at 837 (1) (b). Accordingly,

even assuming deficient performance, reversal is not required because Simpson

has not affirmatively shown that he was prejudiced by his lawyer’s failure to

reserve a peremptory strike and use it on the juror at issue. See Eason, 331 Ga.

App. at 67 (4) (c); Shields, 307 Ga. App. at 837 (1) (b).

      5. As noted in footnote 1, the trial court sentenced Simpson both for

felony murder and for aggravated assault. The indictment charged Simpson with

felony murder by causing the death of Wyscaver “while in the commission of

aggravated assault . . . by striking him about the head with a board, a computer

tower and a computer monitor, deadly weapons in the way and manner used.”

The aggravated assault count charged Simpson with assaulting Wyscaver “with

a board, a computer tower and a computer monitor, deadly weapons in the way

and manner used, by striking him about the head with these weapons.”



                                      12
      “When the only murder conviction is for felony murder and a defendant

is convicted of both felony murder and the predicate felony of the felony murder

charge, the conviction for the predicate felony merges into the felony murder

conviction.” Culpepper v. State, 289 Ga. 736, 737 (2) (715 SE2d 155) (2011)

(citation omitted). See also OCGA § 16-1-7 (a) (1) (prohibiting conviction of

more than one crime if one crime is included in another); Jones v. State, 292 Ga.

593, 595 (1) (740 SE2d 147) (2013). Neither the indictment nor the trial court’s

charge to the jury specified that Simpson was being tried for two distinct

aggravated assaults, and so we cannot conclude that the jury found him guilty

of one aggravated assault to support the felony murder conviction and of a

separate aggravated assault to support the independent aggravated assault

conviction. See Sears v. State, 292 Ga. 64, 73 (6) (734 SE2d 345) (2012); Green

v. State, 283 Ga. 126, 130 (2) (657 SE2d 221) (2008). As a result, Simpson’s

conviction and sentence for aggravated assault must be vacated because it

merged with the conviction for felony murder. See Sears, 292 Ga. at 73-74 (6);

Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (“if we notice a merger

issue in a direct appeal, as we have here, we regularly resolve that issue, even



                                       13
where it was not raised in the trial court and is not enumerated as error on

appeal”) (citation and punctuation omitted).

      Judgment affirmed in part and vacated in part. All the Justices concur.



                          Decided January 19, 2016.

      Murder. Walker Superior Court. Before Judge Van Pelt.

      Kenneth W. Sheppard, for appellant.

      Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant

District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Michael A. Oldham, Assistant Attorney General, for appellee.




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