In the Supreme Court of Georgia



                                            Decided: October 20, 2014


                    S14P0819. HULETT v. THE STATE.


      HUNSTEIN, Justice.

      A jury convicted Donnie Allen Hulett of two counts of malice murder and

numerous related crimes, and Hulett waived his right to a jury trial as to

sentencing for the murders. At the conclusion of a bench trial on sentencing, the

trial court found the existence of multiple statutory aggravating circumstances

and sentenced Hulett to death for each of the murders. See OCGA §§ 17-10-30

(b), 17-10-31 (a). Hulett’s motion for new trial was denied, and he appeals his
convictions and sentences.1 For the reasons set forth below, we affirm in part

and vacate in part.

                                Sufficiency of the Evidence

       1. The evidence presented at trial showed the following. On July 22,

2002, between 8:30 and 9:30 a.m., the assistant director of the Mountain Top

Boys Home in LaFayette saw brothers Larry and Arvine Phelps drive onto the

home’s property in Larry Phelps’ red Ford F-150 pickup truck. Both brothers

were retired educators, and they had volunteered to cut trees and clear an area

for a new building for the home. At approximately 10:30 a.m., the assistant


       1
          The crimes occurred on July 22, 2002. Hulett was indicted by a Walker County grand jury
on November 5, 2002, on two counts of malice murder, six counts of felony murder, two counts each
of armed robbery and aggravated assault, four counts of possession of a firearm during the
commission of a crime, and one count of possession of a firearm by a convicted felon. He was re-
indicted on the same counts on March 2, 2004. The State filed written notices of its intent to seek
the death penalty on November 22, 2002, and on March 12, 2004. Jury selection began on April 12,
2004. On April 22, 2004, the jury returned a verdict of guilty on all counts of the indictment. Hulett
waived his right to a jury trial on sentencing for the murders, and a bench trial was conducted on
April 28 and 29, 2004. On April 29, 2004, the trial court sentenced Hulett to death for each of the
malice murder convictions, and the felony murder convictions were vacated by operation of law.
See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993); OCGA § 16-1-7 (a). As
to the counts for firearm possession during a crime, the trial court merged the counts involving each
victim and sentenced Hulett to two five-year sentences to be served consecutive to one another and
to the death sentences. As further discussed in Division 2, infra, the trial court determined that the
remaining counts merged into other counts for sentencing purposes. Hulett filed a motion for new
trial on May 28, 2004, which he amended on December 26, 2012, and which the trial court denied
on February 12, 2013. Hulett filed a notice of appeal on March 4, 2013. After the appeal was
docketed in this Court, it was stricken, and the record was returned to the trial court for completion
of the record. The instant appeal was docketed for the April 2014 term of this Court and was orally
argued on May 19, 2014.

                                                  2
director and boys from the home were headed to the post office in the home’s

van when they noticed a white Chevrolet Cavalier that was parked on the side

of the road a few hundred yards past the home’s driveway. They saw a white

male near the automobile. Two boys in the van had also separately seen the

Cavalier in the same spot the evening before, and one of the boys had noticed

steam coming from the Cavalier and a white male standing at the automobile’s

open hood, indicating that the Cavalier had broken down.

      When returning from the post office approximately a half hour later, the

home’s van met Larry Phelps’ truck exiting the driveway, and the assistant

director and several of the boys noticed that the truck’s driver was not either of

the Phelps brothers. Later in the day, one of the home’s employees and a boy

residing at the home visited the construction site, where they discovered the

Phelps brothers’ bodies. Law enforcement personnel called to the scene

investigated the Cavalier parked nearby. The officers learned that it had been

reported stolen the previous evening when its owners returned from out of town

and discovered that the vehicle and their daughter’s new acquaintance, Donnie

“D. J.” Hulett, had disappeared from their home in the late night hours of July

20 or the early morning hours of July 21. The couple reported that several other

                                        3
items, including a Smith and Wesson 30.06 rifle, a shotgun, and ammunition,

were also missing. Later analysis by a technician at the Georgia Bureau of

Investigation (“GBI”) Crime Lab showed that two fingerprints lifted from the

hood of the Cavalier matched Hulett’s fingerprints.

      The evidence at the murder scene indicated that the Phelps brothers were

approximately 20 yards apart and were cutting trees when Hulett, standing 65

to 70 yards away on a hill above them, fired at Arvine Phelps multiple times

with a high-powered rifle. Apparently not realizing the source of his brother’s

injury, Larry Phelps put down his chainsaw where he was working and ran to

his brother’s aid. Blood on the knees of his jeans indicated that he kneeled

beside his brother to assist him, using his own shirt as a makeshift bandage to

control Arvine’s bleeding. Meanwhile, Hulett proceeded down the hillside

toward the brothers. At some point, Larry Phelps saw Hulett and ran toward his

truck for safety, but Hulett shot him from above. Hulett then approached the

victims, beat both of them about the head, and took their wallets before leaving

in Larry Phelps’ truck. According to the medical examiner, Arvine Phelps was

shot with a high-powered rifle in his left upper back, left arm, and left thigh.

The medical examiner opined that, after Arvine Phelps was shot but while still

                                       4
alive, he suffered severe blunt force trauma to the front of his head while lying

on a flat surface, causing “two complete fractures through the brain and the

dura” and fractures to the back of the head on the occipital bone. She testified

that the attack left Arvine Phelps’ brain exposed and “pulpified, meaning it was

just smashed, [and] no longer held the contours [of] what a brain should look

like.” The medical examiner testified that the single projectile that struck Larry

Phelps entered the right side of his neck above the collar bone, fractured his ribs,

traversed his lung, fractured his spinal cord, and exited his back. She also

opined that Larry Phelps received a blunt force injury to the left side of his head

after having been shot but prior to his death, and she explained that the blunt

force injuries suffered by both of the victims were consistent with the victims’

having been struck by a rifle butt or a sledge hammer.

      Later during the day of the murders, several of Hulett’s acquaintances saw

him at various locations in middle Georgia driving a truck bearing the license

plate issued for Larry Phelps’ truck and matching its description and in

possession of a Smith and Wesson 30.06 rifle and a large amount of cash. The

GBI subsequently learned from one of Hulett’s acquaintances that he had fled

to Arizona. On August 2, 2002, authorities apprehended Hulett in a grocery

                                         5
store parking lot near Phoenix. At the time of his apprehension, Hulett was

sitting in Larry Phelps’ truck, which displayed a stolen Georgia license plate.

After Hulett’s arrest, detectives discovered a handwritten note in a mileage log

located in the glove compartment of Larry Phelps’ truck. The note began, “I,

Donnie Hulett did do the murders at Mountain Top Boys Home,” and it was

signed, “Donnie Hulett, aka, D. J.” A GBI handwriting examiner concluded that

the note was written by Hulett.        The handwriting on the note was also

authenticated at trial as being that of Hulett by Hulett’s maternal grandparents

and half-sister.   Several witnesses from the Mountain Top Boys’ Home

identified Hulett from a photographic line-up as being the person that they saw

near the Cavalier and driving Larry Phelps’ truck. The Smith and Wesson 30.06

rifle was never located, but a GBI firearms examiner testified that a spent shell

casing found at the murder scene was fired from the same rifle as seven spent

shell casings received from the rifle’s owner, who testified that the spent shell

casings had been fired from the Smith and Wesson 30.06 rifle before it was

stolen. The State also introduced Hulett’s prior felony conviction.

      After reviewing the evidence in the light most favorable to the jury’s

verdicts, we conclude that it was sufficient to authorize a rational trier of fact to

                                         6
find Hulett guilty of the crimes charged beyond a reasonable doubt. See

Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SCt 2781, 61 LE2d

560) (1979); UAP IV (B) (2) (providing that, in all death penalty cases, this

Court will determine whether the verdicts are supported by the evidence).

      2. While the evidence was sufficient to support the jury’s guilty verdicts,

we have noted an error with respect to the merger of certain counts for judgment

and sentencing. The jury returned guilty verdicts on all 17 counts of the

indictment. The counts relevant to our discussion here are as follows:

      Count 1:  Malice murder of Arvine Phelps.
      Count 2:  Malice murder of Larry Phelps.
      Count 3:  Felony murder of Arvine Phelps (aggravated assault as
                the underlying felony).
      Count 4: Felony murder of Larry Phelps (aggravated assault as
                the underlying felony).
      Count 5: Aggravated assault (assault with a deadly weapon) of
                Arvine Phelps.
      Count 6: Aggravated assault (assault with a deadly weapon) of
                Larry Phelps.
      Count 7: Felony murder of Arvine Phelps (possession of a
                firearm by a convicted felon as the underlying felony).
      Count 8: Felony murder of Larry Phelps (possession of a firearm
                by a convicted felon as the underlying felony).
      Count 9: Possession of a firearm by a convicted felon.
      Count 10: Felony Murder of Arvine Phelps (armed robbery as the
                underlying felony).
      Count 11: Felony Murder of Larry Phelps (armed robbery as the
                underlying felony).

                                       7
      Count 12: Armed robbery of Arvine Phelps.
      Count 13: Armed robbery of Larry Phelps.

      For sentencing purposes, the trial court “merged” Counts 1, 3, 5, 7, 9, 10,

and 12 and separately “merged” Counts 2, 4, 6, 8, 9,2 11, and 13. According to

the trial transcript, the trial court, at the State’s urging, determined that the

felony murder counts, along with his convictions for the underlying felonies,

“merged” with his malice murder counts as to each respective victim. However,

the trial court was incorrect.

      First, the trial court erred with respect to the relationship between the

malice murder and felony murder counts regarding each of the victims. As this

Court has explained, the State may seek guilty verdicts on alternative theories

of malice murder and felony murder, and, “[w]hen the elements of malice and

an underlying felony both exist in a murder case, the law does not preclude

verdicts of guilty of both malice and felony murder.” Smith v. State, 258 Ga.

181, 183 (2) (366 SE2d 763) (1988). See Lumpkins v. State, 264 Ga. 255, 256

(3) (443 SE2d 619) (1994) (explaining that the State may indict on alternative

counts “for a single crime which may have been committed in more than one


      2
          The trial court inexplicably “merged” Count 9 twice.

                                                8
way”). However, when a valid guilty verdict is returned on both malice murder

and felony murder of the same victim, the defendant should be sentenced for the

malice murder, and the alternative felony murder count stands vacated by

operation of law as “‘simply surplusage.’” (Citation omitted.) Malcolm v. State,

263 Ga. 369, 372 (4) (434 SE2d 479) (1993). See Mills v. State, 287 Ga. 828,

828 n. 1 (700 SE2d 544) (2010) (noting that “the felony murder conviction was

properly vacated by operation of law rather than ‘merged’ into the malice

murder conviction” (emphasis supplied) (citing Malcolm, 263 Ga. at 372).

      Because the trial court failed to recognize that the felony murder counts

were vacated as surplusage rather than “merged” into the malice murder counts,

it also failed to recognize that “there [were] no felony murder count[s] into

which the underlying felon[ies] c[ould] merge.” Malcolm, 263 Ga. at 373. As

a result, the trial court improperly determined that certain of the non-murder

counts “merged” as a matter of law into the felony murder counts when, instead,

the trial court should have “treat[ed] the felony murder count[s] as merely

surplusage and then . . . proceed[ed] to determine whether the underlying

felon[ies] did or did not merge, as a matter of fact, into the malice murder

count[s].” (Emphasis supplied.) Id.

                                       9
       As demonstrated by the discussion below, as a result of the trial court’s

error, “[Hulett] has yet to be sentenced for [three] of the crimes” of which he

was validly convicted. State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d

547) (1989) (vacating the trial court’s erroneous judgment merging eight of

twelve armed robbery counts into four counts and remanding for resentencing

on the eight remaining counts). Therefore, that portion of the trial court’s

judgment is illegal and void. See Williams v. State, 271 Ga. 686, 688 n. 7 (1)

(523 SE2d 857) (1999) (noting that an illegal sentence may benefit a criminal

defendant but that a judgment imposing a sentence that the law does not allow

is still void and that the trial court may resentence the defendant at any time,

citing Hartman v. State, 266 Ga. 613 (5) (469 SE2d 163) (1996) (holding that

the trial court’s judgment imposing a concurrent rather than a consecutive

sentence as required by the governing statute was void and could be amended

to conform to the law at any time)). The State, had it chosen to do so, could

have “appeal[ed] directly the failure of the trial court to legally impose sentences

for those [three] crimes.”3 Smith, 193 Ga. App. at 832. See OCGA § 5-7-1 (a)


       3
          To the extent that Gibbins v. State, 229 Ga. App. 896, 901-902 (8) (495 SE2d 46) (1997),
holds to the contrary, it is overruled.

                                               10
(6) (authorizing the State to appeal “[f]rom an order, decision, or judgment of

a court where the court does not have jurisdiction or the order is otherwise void

under the Constitution or laws of this state”); State v. Sumlin, 281 Ga. 183, 184

(2) (637 SE2d 36) (2006) (holding that the State is entitled to directly appeal a

“legally void” order); State v. Jones, 265 Ga. App. 493, 493 (1), 494 (2) (594

SE2d 706) (2004) (noting that “[t]he law is clear that the state is authorized to

appeal a void sentence,” holding that the probated portion of the defendant’s

sentence was contrary to the applicable statute and thus was void, and

remanding for resentencing); State v. Dixon, 194 Ga. App. 146, 146 (1) (390

SE2d 600) (1990) (vacating the trial court’s judgment erroneously merging the

defendant’s armed robbery counts and remanding for resentencing on each of

the counts). However, neither party has appealed these sentencing errors.4

       Where neither party properly raises and argues a merger issue, this Court

has no duty “to scour the record searching for merger issues.” Nazario v. State,

293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013). However, if we notice a



       4
         Obviously, Hulett has no reason to complain about these sentencing errors on appeal, as
they do no harm to him. The record clearly shows that the State induced the error, which may
explain the State’s failure to appeal; however, “[i]nduced error cannot serve to render a void
judgment valid.” Jackson v. State, 276 Ga. 408, 410 n. 2 (2) (577 SE2d 570) (2003).

                                              11
merger issue in a direct appeal, as we have here, we regularly resolve that issue,

“even where [it] was not raised in the trial court and is not enumerated as error

on appeal.” Id. at 486 (2) (b) (explaining that a judgment of sentence is void

where it imposes an illegal sentence, i.e., a sentence that the law does not allow,

and that the illegality of such a judgment is not a waivable issue). The merger

issues that this Court decides sua sponte typically result in vacated convictions

and sentences and thus are favorable to the defendant. See id. (listing cases).

Nevertheless, we agree with the Court of Appeals that “an accused who has been

convicted of a crime has neither a vested right to nor a reasonable expectation

of finality as to a pronounced sentence which is null and void.” Bryant v. State,

229 Ga. App. 534, 535 (1) (494 SE2d 353) (1997). See OCGA § 17-9-4 (“The

judgment of a court having no jurisdiction of the person or subject matter, or

void for any other cause, is a mere nullity and may be so held in any court when

it becomes material to the interest of the parties to consider it.”).

      Accordingly, having noticed the trial court’s error, we vacate that portion

of the trial court’s sentencing order in which it “merged” Counts 1, 3, 5, 7, 9, 10,

and 12 with one another and “merged” Counts 2, 4, 6, 8, 9, 11, and 13 with one



                                        12
another.5 As discussed in Division 1, there was sufficient evidence to convict

Hulett of the malice murders of Arvine Phelps and Larry Phelps. Therefore, the

trial court properly sentenced him on Counts 1 and 2, and Counts 3, 4, 7, 8, 10,

and 11, which are the felony murder counts, are vacated by operation of law.

See Malcolm, 263 Ga. at 371-372. We now proceed to determine whether

Counts 5, 6, 9, 12, and 13 merge as a matter of fact into the valid malice murder

convictions.

               (a) We begin with Counts 5 and 6, which charged Hulett with

committing aggravated assault “with a deadly weapon, a rifle, by pointing said

firearm at said victim. . . .” There was no evidence presented that authorized the

jury to find that Hulett’s aggravated assault of either victim by pointing the gun

at them was not “followed almost immediately” by the fatal shooting of the

victims or that there existed “a deliberate interval” between the two events.

Solomon v. State, 293 Ga. 605, 606 (1) (748 SE2d 865) (2013). Therefore, the

aggravated assaults merge as a matter of fact into the malice murder. See id.




       5
          In so doing, we disapprove the dicta in Wright v. State, 243 Ga. App. 167, 169, n.2 (532
SE2d 724) (2000) indicating that an appellate court should decline to review a void sentence where
the State has failed to appeal it.

                                               13
            (b) Count 9 charged Hulett with the offense of possession of a

firearm by a convicted felon. “[P]ossession of a firearm by a convicted felon

does not merge into a conviction for malice murder.” Chester v. State, 284 Ga.

162, 162 (1) (664 SE2d 220) (2008), overruled on other grounds by Williams

v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010), and Harper v. State, 286 Ga.

216, 218 (1) (686 SE2d 786) (2009). Therefore, as no merger occurred, Hulett

should have been sentenced on this count.

            (c) Count 12 charged Hulett with the offense of armed robbery in

that he did, “with the intent to commit theft, take a 2000 Ford F-150 XLT

pickup, from the immediate presence of Arvine Phelps by the use of a 30.06

Smith and Wesson rifle, an offensive weapon. . . .” Count 13 charged Hulett

with committing armed robbery in the same manner with respect to Larry

Phelps. These counts do not merge into the malice murder counts “because

malice murder has an element that must be proven (death of the victim) that

armed robbery does not, and armed robbery has an element (taking of property)

that malice murder does not.” Culpepper v. State, 289 Ga. 736, 739 (2) (b) (715

SE2d 155) (2011). Furthermore, the evidence was sufficient to show that both

Phelps brothers were subjected to Hulett’s exercise of actual force by the use of

                                       14
an offensive weapon so as to induce the relinquishment of another’s property.

See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery

when, with intent to commit theft, he or she takes property of another from the

person or the immediate presence of another by use of an offensive weapon”).

Where two victims are robbed, the defendant may be charged with, convicted

of, and sentenced for the robbery of each victim. See Favors v. State, 265 Ga.

433, 433 (1) (457 SE2d 565) (1995) (finding the evidence sufficient to support

convictions and sentences for murder and two armed robbery counts where the

defendant and his co-defendant followed the murder victim’s vehicle to steal it

and where, when the victim stopped, the defendant pointed a gun at the victim’s

passenger, ordered him to the ground, entered the passenger side, ordered the

victim out of the vehicle, and then shot and killed the victim and drove off).

            (d) In sum, in addition to the sentences actually imposed by the trial

court, Hulett also should have been sentenced for the possession of a firearm by

a convicted felon count as provided in OCGA § 16-11-131 and for both counts

of armed robbery as provided in OCGA § 16-8-41. Accordingly, we remand the

case for resentencing on Counts 9, 12, and 13.



                                       15
                 Issues Regarding Representation by Counsel

      3. On September 5, 2002, the trial court appointed Steve Moore as lead

counsel and Larry Hill as co-counsel to represent Hulett. Hulett contends that

the trial court committed reversible error by denying his request at an ex parte

hearing on July 22, 2003, to remove Hill and replace him with new counsel. An

indigent defendant in Georgia does not have an absolute right to the attorney of

his own choosing; rather, the choice of appointed counsel is a matter of the trial

court’s discretion. See Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991).

A trial court abuses its discretion in denying a defendant’s request to appoint his

preferred counsel only when the defendant’s choice “is supported by objective

considerations favoring the appointment of the preferred counsel, and there are

no countervailing considerations of comparable weight.” Id.

      In support of his request for Hill’s dismissal and the appointment of new

counsel, Hulett told the trial court that he had seen Hill “a total of four times,”

felt that Hill “[wa]s not doing his job,” was concerned about what Hill would

“do for [him] in court,” and could not trust Hill, as Hill had told him “several

lies.” However, Hulett was unable to provide the trial court with a single

specific instance in which Hill had been untruthful. Instead, Hulett generally

                                        16
accused Hill of failing “to come see [him]” and failing “to talk[]” with Moore.

Hill, in turn, explained to the trial court that, while there had been times when

he was prevented from attending a scheduled meeting with Hulett due to last-

minute issues at his office, he had never intentionally lied to Hulett. Hill also

explained that he and Moore had agreed to temporarily suspend their weekly

meetings regarding Hulett’s case due to their vacation schedules and the fact that

Moore was involved in a trial at the time.

      In weighing the considerations that Hulett provided in support of his

request, the trial court explained to him that the court considered both of his

attorneys “excellent” lawyers, pointing out that they were trained and

experienced in death penalty litigation and that Hulett did not “necessarily have

to like [Hill]” or be “friends” with him in order to be effectively represented by

him. The trial court also inquired as to whether Hulett had any complaints about

lead counsel Moore, and Hulett indicated that he was pleased with Moore. After

reviewing the time sheets that trial counsel had submitted for payment of

attorney’s fees, the trial court also told Hulett that both Moore and Hill were

“very actively representing [him] along with [his] investigator” and that, while

the court was willing to schedule a hearing to hear any further complaints, there

                                       17
was no basis upon which to grant his request at that time and, therefore, it was

denied.6

       The trial court appropriately weighed the considerations favoring Hulett’s

request and properly concluded that they did not outweigh the countervailing

considerations that Hill had completed a significant amount of work on the case

and that removing him would delay the trial while a new death-qualified

attorney was procured and allowed time to become familiar with the case. See

Morris v. Slappy, 461 U. S. 1, 14 (IV) (103 SCt 1610, 75 LE2d 610) (1983)

(rejecting “the novel idea that the Sixth Amendment guarantees an accused a

‘meaningful attorney-client relationship’”); Smith v. State, 273 Ga. 356, 357 (2)

(541 SE2d 362) (2001) (stating that the Sixth Amendment “guarantee[s]

effective assistance of counsel, not . . . preferred counsel or counsel with whom

a ‘meaningful relationship’ can be established” (citation and punctuation

omitted)); Chapel v. State, 264 Ga. 267, 269-270 (3) (c) (443 SE2d 271) (1994)


       6
          Although the trial court encouraged Hulett to bring any other complaints about Hill before
the court, informed him that he could talk to Moore regarding an appeal of the court’s denial of his
request, and gave him an opportunity to express his dissatisfaction with counsel at every hearing and
repeatedly during trial, the record shows that Hulett never again complained about Hill to the trial
court until the motion for new trial. Nor did Hulett include the trial court’s denial of his request to
dismiss Hill and replace him with new co-counsel among the issues that he requested the trial court
to certify for interim review by this Court. See OCGA § 17-10-35.1.

                                                  18
(“The amount of time and effort expended by an attorney on behalf of a criminal

defendant are weighty considerations in determining whether that attorney

should be appointed to represent the defendant.”); Amadeo v. State, 259 Ga.

469, 470 (1) (384 SE2d 181) (1989) (stating that an appointing trial court must

“consider the prior experience of the available lawyers when choosing counsel

in a death penalty case”). Moreover, the denial of Hulett’s request did not leave

him without trusted counsel, as Moore remained on the case throughout trial.

See Grant v. State, 278 Ga. 817, 817 (1) (607 SE2d 586) (2005) (noting “the

strong interest of the defendant and of the court system in sustaining an existing,

close relationship between a death penalty defendant and his counsel”). Thus,

because Hulett’s personal preference as to co-counsel was not supported by

objective considerations that outweighed countervailing considerations, the trial

court did not abuse its discretion in denying Hulett’s request. See Amadeo, 259

Ga. at 470 (holding that an indigent defendant’s preference for a particular

attorney is a consideration but “not a determinative factor requiring the

appointment of that attorney”).

      4. One year after new lead counsel and new co-counsel were appointed

to represent Hulett in his post-conviction proceedings and had filed Hulett’s

                                        19
motion for new trial, Hulett filed a motion requesting the trial court to reappoint

trial counsel Moore to represent him. He contends in this appeal that the trial

court erred in denying his motion because he trusted Moore and had a good

working relationship with him, which were the grounds for his motion in the

trial court. However, Hulett also contends in this appeal that the trial court erred

in denying his motion because Moore was familiar with the case, was in a better

position to detect and argue the trial court’s errors than new counsel, and had

already conducted the relevant research, which would have allowed the case to

proceed more quickly. However, an appellant is “limited on appeal to the

grounds which he properly presented in the trial court.” Lundy v. State, 119 Ga.

App. 585, 587 (1) (168 SE2d 199) (1969). In any event, we do not find

compelling any of the factors that Hulett now alleges favored the reappointment

of trial counsel to represent him in his motion for new trial.

      Although Moore would have researched trial issues in his capacity as trial

counsel, several issues raised in Hulett’s motion for new trial and direct appeal

concern post-conviction matters, and there is nothing in the record to indicate

that Moore ever conducted any research specifically relevant to the motion for

new trial, as he never represented Hulett in that proceeding. Hulett has also

                                        20
failed to show how Moore’s reappointment to his case would have resulted in

a more expeditious motion for new trial proceeding. In fact, at the November

3, 2011, hearing, which was scheduled by the trial court to hear Hulett’s motion

and to determine the status of the case, Hulett’s post-conviction counsel told the

court that she had read the transcript and was ready to proceed on the motion for

new trial. However, she explained that the difficulty in finding a time to

conduct the hearing on Hulett’s motion to reappoint Moore that would

accommodate the schedules of all the attorneys involved had actually delayed

the new trial hearing. As to Hulett’s contentions regarding his good relationship

with Moore and Moore’s familiarity with his case, it is true that, under certain

circumstances, this Court has found similar considerations significant enough

to outweigh countervailing considerations in cases involving the denial of a

defendant’s request to retain trial counsel. See Davis, 261 Ga. at 222 (finding

preferred counsel’s familiarity with the case and long-standing relationship with

the defendant “weighty considerations” where the case was “legally and

factually complex” and where a contention was made that the defendant was “in

a fragile state of mind”). However, we do not find such considerations as



                                       21
persuasive in post-conviction proceedings where the bulk of counsel’s work is

with the record under review.

      Moreover, in denying Hulett’s motion, the trial court found that Hulett’s

current counsel had announced their intention to raise issues of ineffective

assistance of trial counsel in the motion for new trial. Hulett disputes this

finding, but it is not clearly erroneous, as his post-conviction counsel stated that,

if Moore were not reappointed, they would be litigating trial counsel’s

ineffectiveness in the motion for new trial.

      As this Court has previously observed,

      “[i]t is a requisite of a sound system of criminal justice, serving
      alike the proper ends of defendants and the public, that any
      contention concerning the violation of the constitutional right of
      counsel should be made at the earliest practicable moment.” [Cit.]
      Over the years, this Court has developed a policy of affording initial
      review by the trial court of a claim of ineffective assistance of
      counsel . . . in the belief “the claim can be promptly resolved by the
      judge who presided over the trial as opposed to having it resolved
      by a habeas court somewhere down the road.” [Cit.]

Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007). See Massaro v. United

States, 538 U. S. 500, 506 (123 SCt 1690, 155 LE2d 714) (2003) (noting that

a judge hearing claims of ineffective assistance of counsel who also presided at

trial “should have an advantageous perspective for determining the effectiveness

                                         22
of counsel’s conduct and whether any deficiencies were prejudicial”).

Therefore, we cannot say that the trial court abused its discretion in denying

Hulett’s request in order that the issues of ineffective assistance of counsel could

be raised at the “‘earliest practicable moment.’” Garland v. State, 283 Ga. 201,

202 (657 SE2d 842) (2008) (“By ‘earliest practicable moment,’ we mean that

the ineffectiveness claim must ‘be raised before appeal if the opportunity to do

so is available.’” (citation omitted)). Compare Grant, 278 Ga. at 818 (finding

an abuse of discretion where the trial court removed a death penalty defendant’s

existing trial counsel in order to ensure the participation of local counsel).

      5. Hulett contends that, in denying the motion for new trial, the trial court

erred by rejecting his claim that his trial counsel rendered ineffective assistance

in the sentencing phase in several respects. In order to prevail on this claim,

Hulett must show that counsel’s performance was deficient and that actual

prejudice to his defense resulted. See Strickland v. Washington, 466 U. S. 668,

687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782,

783 (1) (325 SE2d 362) (1985). “Unless a defendant makes both showings, it

cannot be said that the conviction or death sentence resulted from a breakdown

in the adversary process that renders the result unreliable.”           (Emphasis

                                        23
supplied.) Strickland, 466 U. S. at 687 (III). Therefore, in reviewing an

ineffective assistance of counsel claim, “this Court need not analyze the

deficient performance prong if the Court determines the prejudice prong has not

been satisfied.” Fortson v. State, 280 Ga. 435, 436 (2) (a) (629 SE2d 798)

(2006). Finally, “[a]n ineffective assistance of counsel claim is a mixed

question of law and fact; we accept the trial court’s factual findings unless

clearly erroneous, but we independently apply the legal principles to the facts.”

Barrett v. State, 292 Ga. 160, 167 (3) (733 SE2d 304) (2012).

            (a) Hulett’s Defense Team. The trial court described Moore and

Hill, who were appointed to represent Hulett approximately a month after his

arrest, as being “excellent” attorneys in possession of more knowledge in the

area of death penalty litigation “than any other set of attorneys in th[e] circuit.”

Both attorneys had been practicing law for approximately ten years and were

highly experienced in criminal defense at the time of their representation of

Hulett. Early in the case, trial counsel sought and obtained funds to retain the

investigative services of Roy Cooper, a former law enforcement officer, because

they were impressed with his investigative work in another death penalty case

in which they had been involved.

                                        24
            (b) Trial Counsel’s Presentation of Mitigating Evidence. Trial

counsel testified at the new trial hearing that Hulett directed them to focus on

obtaining an acquittal and had no interest in aiding them in preparing mitigating

evidence to be presented in a sentencing phase if he were convicted. In fact,

Moore testified that, at the time of trial, Hulett “was adamant about, if he was

not going home he wanted to die and not spend the rest of his life, being at that

time 20-something years old, in prison,” and Hill testified similarly. Trial

counsel testified that Hulett considered a bench trial “his best bet” to secure a

death sentence, and that, although counsel explained the risks involved in

waiving the right to a jury trial on sentencing to Hulett and “strongly advise[d]”

him against it, they were unable to dissuade him from making that choice.

      At an ex parte hearing shortly before trial, Moore told the trial court that

Hulett remained “very adamant” that he wanted to waive his right to a jury trial

on sentencing if he were convicted, explaining that Hulett did not want a life or

a life without parole sentence if he were convicted and felt that a jury was less

likely than the trial court to give him a death sentence. Moore also explained

that he and Hill had had several lengthy conversations discussing “the process”

with Hulett, including “the role the jury has, the entire issue of mitigation, what

                                        25
mitigation is[,] . . . [and] how all that comes together.” Moore told the trial

court that Hulett had been found competent to stand trial by the defense’s

forensic psychiatrist, and he also expressed his own belief that Hulett was

intelligent and competent and that he understood the proceedings. Finally,

Moore stated that, although “[t]his was not the attorney’s idea,” they were

“representing [Hulett] in his case, [and] this [wa]s his choice.” See Head v.

Thomason, 276 Ga. 434, 439 (4) (578 SE2d 426) (2003) (“Whether to waive a

jury trial is a strategic decision to be made by an accused after consultation with

counsel.”) Hulett subsequently waived orally and in writing his right to a jury

trial on the issue of sentence.

      After the jury returned its verdict of guilty on all counts, the jurors were

dismissed. Six days later, the trial court conducted a bench trial on sentencing

for the murder convictions. At that time, trial counsel presented the testimony

of Hulett’s mother, his mother’s fiancé, his father, his stepmother, and Dr. Keith

Caruso, the forensic psychiatrist retained by the defense to examine Hulett. The

testimony of Hulett’s family members provided the trial court with an account

of Hulett’s background, and Dr. Caruso’s testimony explained how Hulett’s

background had impacted his mental health and how the circumstances of

                                        26
Hulett’s crimes were mitigated by certain factors in his life. Specifically, the

witnesses’ testimony showed the following.

       Hulett’s parents had been married less than a year when he was born. His

mother, who was only16 years old and had already given birth to another child

who did not live with her,7 used marijuana and smoked cigarettes while she was

pregnant with Hulett. When Hulett was a baby, his parents fought physically

and used marijuana in his presence, even allowing Hulett to “lick the paper to

roll the joint.” When he was between one and two years old, his mother left his

father, taking Hulett with her. They moved from place to place, and his mother

never had a steady job and often had no food to feed Hulett. Hulett’s father

finally located them and tried to see Hulett, but the two men that they were

living with “pointed a shotgun at [him]” and “ran [him] off.” When Hulett was

approximately two years old, his father was finally able to retrieve him after his

mother left him with a friend, took a job with the carnival, and left town.

Because of the living conditions Hulett had experienced while with his mother,

he was accustomed to fending for himself and preferred food “cold out of a can”


       7
         The testimony also showed that, after Hulett’s mother and father divorced, Hulett’s mother
gave birth to another child, who also did not live with her, further demonstrating her detachment
from and lack of involvement with her children.

                                                27
and was even able to open a can of food for himself. Hulett lived the remainder

of his childhood years with his paternal grandparents, where Hulett’s father also

sometimes lived, and he had almost no contact with his mother. Hulett’s father

continued to use drugs and drink alcohol around him. His grandparents,

particularly his alcoholic grandfather who sometimes “ended up in the V.A.

Hospital to dry out,” also drank in his presence.

      Hulett’s grandparents passed away when he was approximately 12 years

old, and he “[s]eemed to not care anymore” and began skipping school, getting

expelled, and running away from home for days at a time. Hulett’s father took

him to a psychiatrist “several times,” and he was admitted to a psychiatric

hospital at age 14 after attempting suicide by overdosing on his father’s

medication. Near that time, his father married a woman who had lived with his

father “most” of Hulett’s life. She considered Hulett’s grandparents too

permissive with Hulett, and she described Hulett as having “a love hate

relationship” with his mother and as “not [being] okay” with the fact that he did

not really know her. She also described her unsuccessful attempts to get help

for Hulett, who had begun to inhale gasoline after his suicide attempt, and noted

one counselor who showed Hulett how to “huff” gasoline “the right way.”

                                       28
Hulett committed various crimes and spent a great deal of time in the youth

detention center before eventually landing in prison. When he was released

from prison approximately a month before the murders, he moved in with his

mother and her fiancé in Tifton. He and his mother’s fiancé became “quick

friends,” and he worked in the fiancé’s floor covering business until shortly

before the crimes.

       Dr. Keith Caruso testified that he conducted a three and a half hour

interview of Hulett at the Walker County jail on October 14, 2003, after

reviewing Hulett’s Southwestern State Hospital records, Central State Hospital

records, Telfair County Hospital records, and Georgia Department of

Corrections medical records. Dr. Caruso testified that “some past psychiatric

histories” in those documents showed that Hulett had been hospitalized three

times in psychiatric hospitals and once in a substance abuse treatment program

and that he had attempted suicide “between four and six” times. Dr. Caruso

explained that Hulett suffered from a number of mental health issues.

      Specifically, Hulett had a history of attention deficit disorder as a child,

and attempts at treatment had been unsuccessful. He also had a possible

learning disability, and he had been placed in a school for behavioral problems.

                                       29
He was addicted to “various drugs,” including methamphetamine and marijuana,

and Dr. Caruso testified that, “by [Hulett’s] report[,] he was intoxicated on

methamphetamine at the time of the offenses.” He had a history of depression

as a teen and had also had depressive symptoms when Dr. Caruso examined

him. Dr. Caruso opined that, while depressive symptoms are sometimes caused

by drug and alcohol abuse, the fact that Hulett exhibited those symptoms in jail,

where he supposedly was not using drugs or alcohol, suggested that he suffered

from major depression. Hulett told Dr. Caruso that “he had been treated with

medications commonly used for bi-polar disorder, . . . including Zyprexa,

Zoloft and Depakote,” but Dr. Caruso testified that “[he] never got those records

so [he] c[ould]n’t say, for certain that [Hulett] ha[d] bi-polar disorder.”

Nevertheless, Dr. Caruso explained that it was “certainly [a] possibility and

[was] in his report and [that Hulett] certainly did look depressed at th[e] time

that [he] saw him.” He also testified that, “due in part to [his] dependency

problems leading to problems with the law and nonconforming behavior,”

Hulett “ha[d] an anti-social personality disorder.” Likening a personality




                                       30
disorder to “mental retardation”8 of the personality, Dr. Caruso explained that

persons who suffer from a personality disorder “cannot solve complex

interpersonal problems” and tend to be unstable in their relationships with

others, their emotional states, and their impulse control. Finally, Dr. Caruso

noted that he did not see evidence of any neurological impairment, despite

Hulett’s history of inhalant abuse and his possible learning disability.

       In explaining the extent to which Hulett’s background and upbringing

contributed to his mental health issues, Dr. Caruso testified that Hulett likely

would have been prone to problems with substance abuse and impulsive

behavior as a result of his “genetic loading,” regardless of his childhood

environment and upbringing. However, he explained that Hulett’s being raised

in a very unstable environment, including being abandoned by his mother as a

toddler, having very little relationship with his father in his early years, and

being primarily raised by grandparents who abused alcohol and who died when

he was young, created a “recurrent pattern of loss [and] abandonment.”

According to Dr. Caruso, Hulett endured “problems with physical and emotional


       8
          On cross-examination, Dr. Caruso clarified that he was not testifying that Hulett was
mentally retarded. He testified that Hulett’s IQ score was 108, and he acknowledged that Hulett’s
score indicated that his intelligence level was “a little above average.”

                                               31
abuse in the home as well,” including his father’s physical abuse and his own

perception that his father was more loyal to his wife than he was to Hulett.

Therefore, Dr. Caruso did not find it surprising that Hulett began “getting into

trouble after his grandmother’s death” and “essentially was institutionalized at

that point forward,” spending a total of five years in psychiatric hospitals and

youth detention facilities “[with] very little time at home.” He also noted that

Hulett was arrested at age eighteen for auto theft, spent three years in prison, and

could not locate his father upon his release just weeks before the murders, which

again precipitated feelings of abandonment and stress in him.

      Finally, Dr. Caruso opined that Hulett “need[ed] therapy for a number [of

problems], including recurrent major depression and possibly bi-polar disorder,”

and that there were several mitigating factors in Hulett’s case, including the

following: Hulett’s youth and his self-reported intoxication at the time of the

crimes, which would have impaired his capacity to appreciate the wrongfulness

of his behavior; his depression “syndrome” and the fact that he was acting under

extreme emotional disturbance due to the reawakening of earlier abandonment

problems created by his parents’ repeated absence; his personality structure,

which made it difficult for him to cope with these issues; his history of physical

                                        32
abuse, which modeled violence as problem-solving; and his lack of normal

coping skills as a result of parental immaturity, neglect and substance abuse in

the home, and the instability of the home itself.

      On cross-examination, Dr. Caruso acknowledged that, “in some ways,” a

person with a personality disorder does not get better. However, he opined that

environment and treatment could have a positive effect. He explained that, if

Hulett received proper treatment for his depression and possible bi-polar

disorder, it would positively affect the impact of those conditions on his

underlying personality disorder, thereby also improving the chances for that

condition’s successful treatment. Nevertheless, Dr. Caruso opined that Hulett

“w[ould] always have problems with impulsive behavior” and would not be

“able to function in society again.” In his opinion, Hulett had “a better chance”

of conforming his behavior in a highly structured prison environment, and he

noted that Hulett’s behavior might improve significantly if he were placed on

Depakote and anti-psychotic medication, particularly given the possibility that

he suffered from bi-polar disorder.




                                       33
       Trial counsel tendered Hulett’s prison medical records, which included

copies of his records from other hospitals.9 In closing argument, trial counsel

summarized the evidence about Hulett’s background and mental health issues

and asked the trial court for mercy, as discussed in more detail in subdivision

(c) (iii) below.

               (c) Allegations of Ineffective Assistance. Hulett contends that trial

counsel rendered ineffective assistance in various ways.

                       (I) Failure to Hire a Mitigation Specialist. Hulett contends

that trial counsel were ineffective in failing to retain a mitigation specialist to

assist in the investigation, preparation, and presentation of a mitigation case in

the sentencing phase. In support of this claim, Hulett cites and relies on the

2003 ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases, which state in pertinent part, that “[t]he defense

team should consist of no fewer than two [qualified] attorneys . . ., an


       9
          By stipulation of the parties, this approximately 300-page exhibit was submitted to the trial
court at the end of the guilt/innocence phase six days earlier. Upon its admission into evidence at
the sentencing phase, the trial court informed the parties that the court “ha[d] already reviewed each
sheet of that.” Compare Turpin v. Lipham, 270 Ga. 208, 218-219 (3) (B) (4) (510 SE2d 32) (1998)
(finding ineffective assistance where trial counsel introduced approximately 2,500 pages of medical,
psychological, and social records into evidence, presented no expert to explain the records, and
exhorted the jury to read the documents during deliberations).

                                                  34
investigator, and a mitigation specialist.” ABA Guidelines for the Appointment

and Performance of Defense Counsel in Death Penalty Cases § 4.1 (A) (1) (rev.

ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 952 (2003).10

       The Supreme Court of the United States has employed the ABA

Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases as guides in determining the level of reasonable performance for counsel

in a capital case. See Wiggins v. Smith, 539 U. S. 510, 524 (II) (B) (1) (123 SCt

2527, 156 LE2d 471) (2003) (citing to the ABA’s 1989 Guidelines as evidence

of the professional standards that prevailed in Maryland in 1989); Strickland,

466 U.S. at 688 (III) (A) (stating that “[p]revailing norms of practice as reflected

in American Bar Association standards and the like . . . are guides to

determining what is reasonable”). See also Hall v. McPherson, 284 Ga. 219,


       10
          In his brief to this Court, Hulett also quotes subsection (2) of this guideline, which
provides that “[t]he defense team should contain at least one member qualified by training and
experience to screen individuals for the presence of mental or psychological disorders or
impairments.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases § 4.1 (A) (2). However, the guidelines recognize that this member may be one of the
team members named in Guideline 4.1 (A) (1) or an additional person. See id. at 10.4 (C) (2)
Commentary, reprinted in 31 Hofstra L. Rev. at 1003. Thus, to the extent Hulett contends that trial
counsel rendered ineffective assistance by not adhering to this guideline, we note that, as trial
counsel retained a well-credentialed forensic psychiatrist whose testimony at trial shows that he
conducted a comprehensive mental evaluation of Hulett, trial counsel complied with this guideline.



                                                35
221 n. 6 (2) (663 SE2d 659) (2008) (recognizing the Supreme Court’s use of the

ABA Guidelines as “‘guides to determining what is reasonable’” when

measuring trial counsel’s mitigation investigation (citing Wiggins, 539 U. S. at

524 (II) (B) (1) (quoting Strickland, 466 U. S. at 688 (III) (A))); Franks v. State,

278 Ga. 246, 261 (2) (B) (7) (599 SE2d 134) (2004) (same). However, the ABA

Guidelines “‘are only guides’ in determining the reasonableness of counsel’s

performance, as no set of rules can adequately allow for ‘the variety of

circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant.’” Hall v. Lee, 286 Ga. 79,

81 n. 1 (II) (B) (2) (684 SE2d 868) (2009) (quoting Strickland, 466 U. S. at 688-

689 (III) (A), and supplying emphasis).

      Moreover, the Supreme Court recently reiterated that the ABA Guidelines

are “not [the] definition” of attorney reasonableness and should not be treated

by lower courts as “inexorable commands with which all capital defense counsel

‘must fully comply’” or as constitutionally mandated rules that must govern a

court’s Strickland analysis, as the Federal Constitution requires only that




                                        36
counsel make objectively reasonable choices.11 Bobby v. Van Hook, 558 U. S.

4, 8-9 (II) (A) (130 SCt 13, 175 LE2d 255) (2009).                            Invoking a rigid

requirement that trial counsel must employ a mitigation specialist in order to

effectively represent a defendant in a capital case would effectively revoke the

presumption that trial counsel’s actions based upon strategic decisions are

reasonable and would also “interfere with the ‘constitutionally protected

independence of counsel’ at the heart of Strickland.” (Citation omitted.)

Wiggins, 539 U. S. at 533 (emphasizing that Strickland does not require counsel

to investigate every conceivable line of mitigating evidence or to present

mitigating evidence in every case). Thus, we conclude, as several other courts

have, that the failure to hire a mitigation specialist does not necessarily demand

a finding of deficient performance. See, e.g., State v. Osie, No. 2010-1105,

2014 WL 3360616, at * 37 (Ohio July 10, 2014); Hoskins v. State, 75 S3d 250,

256 (II) (B) (Fla. 2011); Daniel v. State, 86 S3d 405, 437-438 (IV) (J) (Ala.

Crim. App. 2011).

       11
            The Supreme Court explained that the proper use of the guidelines in Strickland analysis
requires that they “reflect prevailing norms of practice, and standard practice, and [ ] not be so
detailed that they would interfere with the constitutionally protected independence of counsel and
restrict the wide latitude counsel must have in making tactical decisions.” (Citations and punctuation
omitted.) Van Hook, 558 U. S. at 8 n. 1. The Supreme Court expressly withheld its opinion as to
whether the 2003 ABA Guidelines meet those criteria. Id.

                                                 37
      Accordingly, to meet the first prong of Strickland, Hulett must show that

trial counsel’s decision not to retain a mitigation specialist was objectively

unreasonable under the circumstances facing counsel at the time. See Turpin v.

Lipham, 270 Ga. 208, 217 (3) (B) (4) (510 SE2d 32) (1998) (stating that the test

for determining deficient performance in the sentencing phase is whether “some

reasonable lawyer at the trial could have acted, in the circumstances, as defense

counsel acted at trial” (citation and punctuation omitted)). In making this

showing, Hulett “must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’” (Citation

omitted.) Strickland, 466 U. S. at 689.

      At the new trial hearing, trial counsel testified that they investigated the

case for potential mitigating evidence, despite Hulett’s desire to die if he were

convicted and his disinterest in having trial counsel conduct any investigation

into mitigating evidence. See Barrett, 292 Ga. at 185 (finding that, while the

wording of the relevant ABA Guideline had changed, this Court’s prior holding

that “‘reasonable attorney performance includes investigating mitigating

evidence to the extent feasible given the defendant’s willingness to cooperate

and then, if the defendant insists, following his instructions regarding the

                                       38
ultimate defense to pursue,’” was still applicable to the defendant’s case

(quoting Perkins v. Hall, 288 Ga. 810, 815 (II) (A) (708 SE2d 335) (2011)).

Trial counsel stated that they decided to assign the mitigation investigation to

Cooper, their experienced investigator. Moore explained that trial counsel chose

Cooper to conduct the mitigation investigation because they had previously had

“issues” with mitigation specialists they had retained “doing their jobs” in

another death penalty case. Moore also testified that he had found that the

“fancy title” of mitigation specialist often made people “reluctant to talk,”

particularly in areas outside Atlanta like those involved in Hulett’s case. Moore

testified that he considered Cooper capable of conducting the same investigation

as a mitigation specialist without the “fancy title,” and he explained that, in

another capital case in which he was involved, Cooper had located mitigating

documents that led the State to withdraw notice of its intent to seek the death

penalty.

      Trial counsel’s files were not admitted at the new trial hearing, and

Hulett’s post-conviction counsel did not ask trial counsel to list which potential

mitigation witnesses were interviewed. Furthermore, during their testimony at

the new trial hearing, both trial attorneys had difficulty recalling whether

                                       39
specific persons were interviewed as potential mitigation witnesses. However,

trial counsel testified that their investigator “spent several days” in the area

where Hulett grew up interviewing potential mitigation witnesses and that trial

counsel eventually decided that having Hulett’s parents testify would be the

most effective way to present the facts of Hulett’s background. See Whatley

v. Terry, 284 Ga. 555, 566 (V) (A) (668 SE2d 651) (2008) (stating that it was

“entirely reasonable” for trial counsel to delegate an investigation into potential

witness testimony to his investigator and to follow up when it appeared prudent

to do so). Moore explained that, in his view, having Hulett’s mother and father

testify “to all those [mitigating] things” regarding Hulett’s upbringing, including

that he “was constantly around drugs” and that his parents “did drugs in his

presence,” was much more effective than “second hand information from

someone [else].”

      The defense team also obtained Hulett’s medical records from

Southwestern State Hospital, Central State Hospital, Telfair County Hospital,

and the Georgia Department of Corrections. These records contained both

medical and psychiatric information pertaining to Hulett.           Trial counsel

reviewed Hulett’s juvenile court records, which they received from the State in

                                        40
discovery. Dr. Caruso’s testimony indicates that he had reviewed at least a

portion of Hulett’s school records, and, in the absence of evidence to the

contrary, it is reasonable to presume that trial counsel obtained those records and

provided them to Dr. Caruso. See State v. Worsley, 293 Ga. 315, 324 (3) (745

SE2d 617) (2013) (stating that “a silent or ambiguous record is not sufficient to

overcome the presumption” that counsel performed reasonably).

      All things considered, we conclude that Hulett has not demonstrated that

trial counsel acted unreasonably in strategically deciding to utilize Cooper to

conduct the mitigation investigation rather than to hire a mitigation specialist or

that trial counsel failed to pursue leads that a reasonably trained mitigation

specialist would have pursued. Absent any showing of unreasonableness, we

cannot say that trial counsel rendered deficient performance by assigning

Cooper the task of performing a mitigation investigation rather than retaining

a mitigation specialist.

      Hulett has also failed to show that he was prejudiced by the challenged

conduct. While he makes some conclusory assertions regarding what results




                                        41
hiring a mitigation specialist would have produced,12 he presented no evidence

in his motion for new trial to show exactly what additional mitigating evidence

would have been revealed as the result of hiring a mitigation specialist, much

less that such additional evidence in reasonable probability would have

persuaded a rational trier of fact to reach a different sentencing verdict. See

Wong v. Belmontes, 558 U. S. 15, 27 (II) (130 SCt 383, 175 LE2d 328) (2009)

(“Strickland places the burden on the defendant, not the State, to show a

‘reasonable probability’ that the result would have been different.” (citation

omitted)).

                       (ii) Failure to Provide Dr. Caruso with Medical Records.

Hulett also alleges that trial counsel were ineffective in failing to provide Dr.

Caruso with “complete and pertinent” medical records,13 and he contends that

       12
          For instance, Hulett alleges that a mitigation specialist would have been able to compose
his “bio-psycho-social history” and thus convey to the sentencer “what ha[d] happened physically,
psychologically, socially to [him] throughout [his] lifetime.” However, Hulett presented no evidence
indicating what such a history would have looked like. Therefore, it is impossible to determine
whether that evidence would have been more compelling than the lay and expert testimony and the
medical records regarding Hulett’s life history that were actually presented at trial and, thus, whether
that evidence in reasonable probability would have led to a different outcome.
       13
            A review of the record shows that Dr. Caruso was at least partly mistaken when he
testified that he had not been provided with any medical records showing that Hulett “had been
treated with medications commonly used for bi-polar disorder, . . . including Zyprexa, Zoloft and
Depakote.” The district attorney elicited testimony from Dr. Caruso on cross-examination that the
records that he reviewed showed that Hulett had been treated with “a number of anti-depressants,”

                                                  42
Dr. Caruso could not have given “a full opinion as to [Hulett] and his mental

health without the complete records.” However, Hulett did not identify what

medical records were not provided to Dr. Caruso, did not tender any allegedly

missing medical records into evidence at the new trial hearing, and did not

present any evidence regarding Dr. Caruso’s expected testimony had he been

supplied with additional medical records. Therefore, as “[s]peculation is

insufficient to satisfy the prejudice prong of Strickland,” Hulett has failed to

carry his burden with respect to this claim. Cormier v. State, 277 Ga. 607, 608

(2) (a) (592 SE2d 841) (2004).

                     (iii) Deficiencies in Preparing and Presenting Mitigation

Evidence. Finally, Hulett alleges that trial counsel were ineffective in several

ways in presenting mitigating evidence in the sentencing phase of trial.

       Failure to Present Certain Witnesses. First, Hulett alleges that trial

counsel were ineffective in failing to locate and present at trial the mitigating

testimony of the following: Hulett’s “number one friend,” Billy Ellison;



“medications used to control problems with impulsive agitation,” and Lithium and other anti-
psychotic medications, and a review of the GDOC medical records reviewed by Dr. Caruso and
submitted into evidence at trial specifically shows that Hulett was treated with Zyprexa and
Depakote in the Spring of 2001.

                                            43
Hulett’s lifelong family friend, Arthur Harris; and Hulett’s cousins, Darren

Meeks, and Owen and Alton Hulett. Even assuming that trial counsel acted

unreasonably in not locating these witnesses and presenting their testimony, a

matter we do not decide, Hulett cannot prevail here because he cannot show that

he was prejudiced by these omissions. Hulett failed to present Ellison’s

testimony at the new trial hearing and thus cannot show that he was prejudiced

by the omission of this testimony. See Morgan v. State, 275 Ga. 222, 227 (10)

(564 SE2d 192) (2002) (holding that counsel’s alleged omission cannot be

deemed prejudicial where the defendant has not shown that the omitted evidence

existed, was available, and would have been favorable to his defense).

Substantially all of the mitigating testimony provided by the remaining

witnesses was cumulative of the testimony presented at trial that Hulett was

raised by his grandparents with little supervision or parental involvement and

was exposed to drug and alcohol abuse from an early age. The trial witnesses

also gave a more detailed and compelling account of Hulett’s background than

his new witnesses because they were Hulett’s own mother, father, and

stepmother. Trial counsel cannot be found to be ineffective for not introducing

this cumulative evidence. See Schofield v. Holsey, 281 Ga. 809, 814 (II) (642

                                      44
SE2d 56) (2007) (holding that the petitioner was not prejudiced by the omission

of “largely cumulative” evidence).

      Hulett also alleges that trial counsel were ineffective in failing to interview

and present as mitigation witnesses any persons from any schools that Hulett

attended or any persons involved in Hulett’s “long term alcohol and drug

treatment.” However, Hulett presented no evidence showing what such

interviews would have revealed and what such witnesses’ testimony would have

been. Thus, he has failed to demonstrate a reasonable probability that the

additional interviews or testimony would have altered the outcome of the trial

in his favor. “[Hulett]’s rank speculation that they would have made a

difference is insufficient as a matter of law to establish Strickland prejudice.”

Peterson v. State, 284 Ga. 275, 277 (663 SE2d 164) (2008). See Morgan, 275

Ga. at 227.

      Failure to Prepare the Lay Witnesses. Hulett also alleges that trial counsel

were ineffective in preparing the lay mitigation witnesses to testify. In support

of this claim, he presented the testimony of his father and stepmother that the

defense investigator spoke to them approximately a month before trial and that

trial counsel did not speak to them until they came to Walker County for the

                                         45
trial. However, this evidence is insufficient to overcome the presumption that

trial counsel’s preparation was reasonable, particularly given Moore’s testimony

that he and Hill spoke with Hulett’s parents about their testimony before trial

and that he considered their testimony to be the most effective way of presenting

Hulett’s background, which indicates that trial counsel were familiar with the

witnesses’ testimony before trial. Moreover, even assuming that trial counsel

were ineffective in preparing these witnesses, Hulett has failed to show

prejudice. The testimony of his father and stepmother that Hulett presented in

support of this claim at the new trial hearing that he had “a rough life,” that his

father was not an “ideal parent” and drank and smoked marijuana in front of

him, that his mother abandoned him, and that he was taken to psychiatrists and

had a history of inhaling gasoline is cumulative of their testimony at trial. See

Holsey, 281 Ga. at 814 (holding that the petitioner was not prejudiced by the

omission of “largely cumulative” evidence). Compare Turpin v. Christenson,

269 Ga. 226, 237-238 (12) (B) (497 SE2d 216) (1998) (finding ineffective

assistance where mitigation witnesses were not adequately prepared for the

DA’s cross-examination and where their testimony was contradicted by a key

defense exhibit).

                                        46
      Failure to Ask About Mercy. Hulett also alleges that trial counsel were

ineffective in not asking the lay witnesses at trial their opinions about whether

the trial court should extend mercy to him. At the new trial hearing, trial

counsel could not recall why they did not ask any lay witnesses about mercy but

pointed out that Hulett did not want mercy. On reviewing the lay witnesses’

testimony presented at the new trial hearing, we conclude that Hulett cannot

show that he was prejudiced by trial counsel’s failure to make this inquiry of the

mitigation witnesses. Several of the reasons that the witnesses gave for being

in favor of mercy were not particularly persuasive, because they were not

specific to Hulett but, instead, were generic statements that “everyone” deserved

to live or statements expressing a general opposition to the death penalty. One

witness pointedly avoided the question as to whether it would benefit his life for

Hulett to receive mercy and subsequently testified that he did not communicate

with Hulett, although he was “sure” that Hulett’s father did. We are not

persuaded that a reasonable sentencer would have found such testimony

compelling. Furthermore, inquiring about mercy at the new trial hearing led the

district attorney to cross-examine Hulett’s stepmother regarding whether she

was aware of any remorse on Hulett’s part for committing the murders, and she

                                       47
admitted that, to her knowledge, Hulett had never expressed remorse for the

victims’ deaths, testimony that a reasonable sentencer was more likely to find

aggravating than mitigating.

      Most significantly, a review of the trial testimony shows that counsel

elicited from the lay witnesses substantial information regarding Hulett’s life

that might encourage a reasonable sentencer to consider mercy. Then, in the

sentencing phase closing argument, Hill drew the trial court’s attention to that

information by first arguing that, while the victims’ deaths were certainly a

tragedy, Hulett’s life was also a tragedy. Hill then summarized the family

members’ testimony about Hulett’s childhood, including that from an early age

he witnessed drug and alcohol abuse and violence between his parents and that

he had had to fend for himself to the extent that he knew how to open his own

cans of food as a toddler. Hill reminded the trial court that Hulett’s mother had

abandoned him when he was a baby, that his father simply did not know how to

raise him, that the grandparents who had raised him had been alcohol abusers,

and that Dr. Caruso had testified that he had “severe” mental problems. Hill

explained that he was not asking the trial court to excuse Hulett but, instead, “to

have mercy on this young man.” Then Hill read a portion of the handwritten

                                        48
note that had been found in Larry Phelps’ truck in which Hulett expressed both

his belief that no one cared about him and his remorse “for what [he had] done.”

Hill contended that the trial court had “a chance to send a message to Mr. Hulett

[that] somebody does care” by “hav[ing] mercy on [his] soul” and sentencing

him to life without parole, and he reminded the trial court that Dr. Caruso had

testified that with proper medication Hulett would do well in a controlled prison

environment. We cannot say that there is a reasonable probability that the little

additional testimony on the subject of mercy in sentencing that was presented

at the new trial hearing would have changed the outcome of the sentencing

phase.

                  (iv) Combined Effect of Trial Counsel’s Alleged Deficiencies.

We conclude that the combined effects of these several alleged attorney errors

are insufficient to establish the prejudice required by Strickland in order to

establish ineffective assistance of trial counsel. See Holsey, 281 Ga. at 811-812

n. 1 (holding that the combined effect of trial counsel’s deficiencies should be

considered). With respect to many of Hulett’s allegations, we have affirmed the

trial court’s findings and conclusions that Hulett failed to carry the burden of

establishing that trial counsel’s performance was constitutionally deficient.

                                       49
Even assuming trial counsel error with respect to the other grounds for Hulett’s

assertion of ineffective assistance of counsel, as we have for the sake of

analysis, and considering the mitigating evidence that was presented at his new

trial hearing along with the mitigating evidence presented at trial, we still

conclude that the new mitigating evidence would not in reasonable probability

have resulted in a different sentencing verdict for Hulett for the commission of

the Phelps brothers’ brutal murders. See Sears v. Humphrey, 294 Ga. 117, 131

(II) (D) (751 SE2d 365) (2013) (explaining that, in determining Strickland

prejudice in a case challenging a death sentence, “this Court must consider the

totality of the available mitigating evidence in reweighing it against the evidence

in aggravation, while being mindful that a verdict or conclusion with

overwhelming record support is less likely to have been affected by errors than

one that is only weakly supported by the record”).

                        Post-Trial Delay of Execution

      6. Hulett contends that his eventual execution after having experienced

a delay of approximately nine years between his trial and direct appeal would

violate the Eighth Amendment’s proscription against cruel and unusual

punishment. While this Court has never addressed a claim exactly like the one

                                        50
that Hulett makes, we have previously rejected similar arguments alleging an

excessive delay between sentencing and execution in two cases where death row

inmates’ appeals had resulted in resentencing trials. See Jones v. State, 273 Ga.

231, 233 (2) (539 SE2d 154) (2000) (finding meritless a “‘waiting for execution

is intolerably cruel’ argument”); Potts v. State, 259 Ga. 96, 105 (35) (376 SE2d

851) (1989) (same).

      Moreover, while recognizing that “[t]he denial of a writ of certiorari

imports no expression of opinion upon the merits of the case,” United States v.

Carver, 260 U. S. 482, 490 (43 SCt 181, 67 LEd 361) (1923), we note that the

Supreme Court of the United States has both recently and repeatedly denied

petitions for writs of certiorari involving similar Eighth Amendment challenges

to the imposition of the death penalty in cases where the inmates had been on

death row for periods significantly longer than a decade. See, e.g., Johnson v.

Bredesen, 558 U. S. 1067 (130 SCt 541, 175 LE2d 552) (2009) (nearly 29

years); Thompson v. McNeil, 556 U. S. 1114 (129 SCt 1299, 173 LE2d 693)

(2009) (32 years); Knight v. Florida, 528 U. S. 990 (120 SCt 459, 145 LE2d

370) (1999) (19 and nearly 25 years); Elledge v. Florida, 525 U. S. 944 (119 SCt

366, 142 LE2d 303) (1998) (23 years); Lackey v. Texas, 514 U. S. 1045 (115

                                       51
SCt 1421, 131 LE2d 304) (1995) (17 years). Furthermore, federal courts of

appeal, including the Eleventh Circuit, have held that prolonged incarceration

under a sentence of death does not violate the Eighth Amendment. See, e.g.,

Thompson v. Secretary for Dept. of Corr., 517 F3d 1279, 1284 (II) (11th Cir.

2008) (noting “the total absence of Supreme Court precedent that a prolonged

stay on death row violates the Eighth Amendment guarantee against cruel and

unusual punishment” and “conclud[ing] that execution following a 31-year term

of imprisonment is not in itself a constitutional violation”). But cf. Jones v.

Chappell, No. CV 09-02158-CJC, 2014 WL 3567365, at *1, *14 (C.D. Cal. July

16, 2014) (holding that California’s “dysfunctional” death penalty system, in

which only 13 of over 900 individuals sentenced to death since 1978 have been

executed, violates the Eighth Amendment because it is “arbitrary” and “serves

no penological purpose” and therefore vacating the death sentence of an inmate

on death row for 19 years). As Hulett presents no authority or new argument

that persuades us to hold otherwise under the circumstances of his case, we deny

this claim.14 See People v. Ochoa, 28 P3d 78, 114-115 (II) (B) (11) (Cal. 2001)


       14
           In denying Hulett’s claim, the trial court found that “the delay in holding [the new trial]
hearing must be attributed solely to [Hulett].” Although Hulett disputes this finding, it is supported
in the record, which shows that Hulett failed to file any requests for a hearing in the almost nine

                                                 52
(rejecting a defendant’s contention that the nine-year delay between his

sentencing and appeal resulted in cruel and unusual punishment), abrogated on

other grounds as stated in People v. Prieto, 66 P3d 1123, 1147 n. 14 (Cal. 2003).




years between the filing of his motion for new trial and the actual hearing, while the State appears
to have made at least one attempt to move Hulett’s motion for new trial forward. See Shank v. State,
290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012) (stating that all of those involved in the criminal
justice system, including “defense counsel and defendants,” have a duty “to ensure that the
appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay”).
Furthermore, at the November 3, 2011, hearing set by the trial court, the court questioned Hulett’s
counsel about the extraordinary delay in moving forward with the motion for new trial. Hulett’s lead
counsel stated that the delay was the result of direction “from [his] client” and that “it was directed
as trial tactic,” and co-counsel agreed. Although Hulett did not claim a violation of his constitutional
due process right to a speedy appeal, the trial court stated in its order that Hulett failed to show that
he had been prejudiced “by the delay he ha[d] orchestrated,” citing Barker v. Wingo, 407 U. S. 514
(92 SCt 2182, 33 LE2d 101) (1972). See Chatman v. Mancill, 280 Ga. 253, 256-260 (2) (a) - (e)
(626 SE2d 102) (2006) (determining that constitutional speedy appeal claims in criminal cases in
which a death sentence was not imposed should be evaluated by application of the following
“modified Barker factors”: length of the delay, reason for the delay, defendant’s assertion of his
right, and prejudice, i.e, whether there was a reasonable probability that, but for the delay, the result
of the appeal would have been different). This Court has never addressed how to resolve
constitutional speedy appeal claims in cases in which a death sentence was imposed. But see Weis
v. State, 287 Ga. 46, 48 (1) (694 SE2d 350) (2010) (evaluating a defendant’s constitutional speedy
trial claim in a death penalty case under the Barker test). See also Allen v. State, 686 NE2d 760,
782-783 (IV) (B) (Ind. 1997) (assessing a constitutional speedy appeal claim in a death penalty case
under a “slightly modified version” of the Barker test and noting that the majority of federal circuits
that have addressed this issue have also utilized the Barker test). At any rate, we note that “[Hulett]
‘provides no evidence of prejudice arising from the delay’ and ‘does not advance any argument that
the appeal he now pursues has been hampered by the delay in any way.’” (Citation omitted.) Glover
v. State, 291 Ga. 152, 155 (3) (728 SE2d 221) (2012) (applying the modified Barker factors and
holding that a ten-year delay in conducting the new trial hearing in a non-death penalty malice
murder prosecution did not violate the defendant’s due process rights, where the defendant provided
no evidence of prejudice arising from the delay).

                                                   53
                               Sentence Review

      7. The sentencing phase evidence showed the following. At age 14,

Hulett burglarized a hardware store and stole several guns after running away

from a youth rehabilitation home. In 2001, while serving a prison sentence

based on his conviction for felony theft by taking of an automobile, he escaped

from a state prison facility in a state vehicle, abandoned that vehicle, stole

another vehicle from a dealership, and was attempting to steal a third vehicle

when he was apprehended. He was released from prison on June 17, 2002, after

signing a form acknowledging that he was required to report to the Gordon

County Probation Office in Calhoun after his release. He then moved in with

his mother and her fiancé in Tifton. On July 9, 2002, his mother’s fiancé took

him to the bus station, where he purchased Hulett a ticket and “put him on a

bus” to Calhoun so that he could report to his probation officer. However,

Hulett never reported to his probation officer, and, on July 17, 2002, his

probation officer applied for a warrant for his arrest. Approximately three days

later and roughly thirty-six hours before the murders, he disappeared with the

Chevrolet Cavalier that he stole from a new acquaintance. The State also

presented evidence that Hulett had committed numerous infractions while

                                      54
incarcerated awaiting trial, including breaking two cell door windows, cursing

at guards and refusing to comply with their commands, and physically attacking

another inmate. See Gissendaner v. State, 272 Ga. 704, 717 (19) (a) (532 SE2d

677 (2000) (stating that OCGA § 17-10-35 (c) (3), which directs this Court to

consider the defendant in its sentence review, “requires a review of the

aggravating factors presented at trial, including both past conduct and conduct

after the crime”).

            (a) The trial court sentenced Hulett to death for Larry Phelps’

murder based on the following statutory aggravating circumstances, which it

found to exist beyond a reasonable doubt: the murder was committed while

Hulett was engaged in the commission of other capital felonies, to wit: the

murder and the armed robbery of Arvine Phelps; the murder was committed for

the purpose of receiving money or any other thing of monetary value; and the

murder was committed for the purpose of avoiding Hulett’s lawful arrest. See

OCGA § 17-10-30 (b) (2), (4), (10). The trial court sentenced Hulett to death

for Arvine Phelps’ murder based on the following statutory aggravating

circumstances, which it found existed beyond a reasonable doubt: the murder

was committed while Hulett was engaged in the commission of another capital

                                      55
felony, to wit: the armed robbery of Larry Phelps; the murder was committed for

the purpose of receiving money or any other thing of monetary value; the

murder was outrageously or wantonly vile, horrible, or inhuman in that it

involved torture, depravity of mind, or an aggravated battery to the victim; and

the murder was committed for the purpose of avoiding Hulett’s lawful arrest.

See id. at (b) (2), (4), (7), (10).

       This Court is required to review each statutory aggravating circumstance

and to determine if it is supported by the evidence. See OCGA § 17-10-35 (c)

(2). Viewed in the light most favorable to the verdict, we conclude that the

evidence presented in both phases of trial as summarized in this division and in

Division 1 was sufficient to authorize a rational trier of fact to find beyond a

reasonable doubt the existence of the statutory aggravating circumstances as to

each victim in this case.15 See O’Kelley v. State, 284 Ga. 758, 766 (3) (670

       15
           The trial court’s finding of the (b) (7) statutory aggravating circumstance as to Arvine
Phelps’ murder referred to “torture, depravity of mind, or an aggravated battery to the victim.”
(Emphasis supplied.) In previous cases in which a jury has returned a verdict finding the (b) (7)
circumstance in the disjunctive, we have set the (b) (7) circumstance aside because it could not be
determined “whether the jury agreed unanimously on any one of the three subparts.” Ellington v.
State, 292 Ga. 109, 146 (13) (735 SE2d 736) (2012). See, e.g., Rivera v. State, 282 Ga. 355, 366
(14) (647 SE2d 70) (2007). In this case, however, the trial court, not a jury, determined Hulett’s
sentence. Therefore, unanimity concerning at least one of the subparts is assured. Furthermore, the
evidence authorized a rational trier of fact to conclude that Arvine Phelps lay alive and bleeding
profusely from his gunshot wounds for a sufficient time period that his brother was able to remove
his shirt and attempt to render him aid and that Arvine Phelps was still alive but lying helpless on

                                                56
SE2d 388) (2008) (“The jury may consider evidence from the guilt/innocence

phase when determining the appropriate sentence.”). See also Ring v. Arizona,

536 U. S. 584 (122 SCt 2428, 153 LE2d 556) (2002); Jackson, 443 U. S. at 318-

319; OCGA § 17-10-35 (c) (2). However, we believe that our conclusion that

there was sufficient evidence for a rational trier of fact to find beyond a

reasonable doubt the (b) (10) statutory aggravating circumstance as to each

victim warrants further discussion.

       OCGA § 17-10-30 (b) (10) and (c) provide that the death penalty may be

imposed where the evidence authorizes a rational trier of fact to find beyond a

reasonable doubt that the defendant committed the murder “for the purpose of

avoiding, interfering with, or preventing a lawful arrest or custody in a place of

lawful confinement, of himself or another.” We have previously noted that

       our cases to date have upheld the (b) (10) circumstance only where
       the evidence supported a finding that the defendant was, at the time

the ground when Hulett shot his brother and then crushed Arvine’s skull. Thus, there was sufficient
evidence to support a finding of any one of the three subparts of the (b) (7) circumstance. See Hance
v. State, 245 Ga. 856, 860-863 (3) (268 SE2d 339) (1980) (defining what evidence is sufficient to
satisfy the various subparts of the (b) (7) circumstance); OCGA § 17-10-35 (c) (2). Although we
need not set aside this statutory aggravating circumstance in Hulett’s case, we remind trial courts to
separate the applicable subparts of the (b) (7) circumstance on the verdict form to require a finding
by the factfinder as to the individual subparts. That procedure allows this Court to determine what
subparts the fact finder unanimously found beyond a reasonable doubt and thereby avoids the
situation in which we are required to set aside this statutory aggravating circumstance due to a legally
deficient verdict.

                                                  57
      of the murder, in immediate peril of being lawfully arrested, placed
      in custody, or confined in a place of lawful confinement by a law
      enforcement officer.

(Emphasis supplied.) Humphreys v. State, 287 Ga. 63, 84 (10) (694 SE2d 316)

(2010) (listing cases). While a defendant’s motive can be more readily inferred

from the evidence in such cases, we have explained that “th[is] Code section is

not limited to that situation.” Id.

      The evidence presented at Hulett’s trial showed the following: at the time

of the murders, Hulett was a convicted felon and had failed to report to his

probation officer, despite having been put on a bus to Calhoun for that purpose,

having been in the area for well over a week, and having been within three miles

of the probation office on multiple occasions; after having attempted to contact

Hulett multiple times, his probation officer had applied for a warrant for his

arrest for his failure to report; and, after stealing two guns, ammunition, and the

Cavalier, Hulett left Calhoun on the day before the murders. A rational trier of

fact was authorized to conclude from this evidence that Hulett had no intention

of complying with his terms of probation. The evidence further showed that

Hulett was left stranded overnight on a rural roadway when the stolen Cavalier

became disabled and that, after shooting the Phelps brothers, he took their truck,

                                        58
left the area immediately, and subsequently left Georgia. Based on this

evidence, the State contended at trial that Hulett, who feared that he would be

discovered sitting on the side of the road in a stolen car, took the stolen guns and

spent the night off the roadway and that, after hearing the Phelps brothers’

chainsaws the following morning, discovered the brothers “busy cutting trees”

and their truck parked nearby. The State then argued that Hulett climbed “up

the mountain” and shot the two men below so that he could take their truck,

leave the area, and thus avoid his arrest for violating probation and stealing the

Cavalier. We conclude that the evidence was sufficient to authorize a rational

trier of fact to find beyond a reasonable doubt that Hulett’s motive in murdering

the Phelps brothers was to avoid his own lawful arrest. Compare Humphreys,

287 Ga. at 83-84 (finding the evidence insufficient to support the (b) (10)

circumstance where it showed only that the defendant murdered the victims after

robbing them and the State argued that the defendant’s purpose for the murders

was the prevention of his apprehension for the robberies).

            (b) Upon a review of the trial record, we conclude that Hulett’s

death sentences were not imposed under the influence of passion, prejudice, or

any other arbitrary factor. See OCGA § 17-10-35 (c) (1).

                                        59
            (c) Considering both the murders in this case and Hulett as a

defendant, we find that the death sentences imposed were not disproportionate

punishment within the meaning of Georgia law. See OCGA § 17-10-35 (c) (3);

Barrett, 292 Ga. at 190 (explaining that this Court is required to determine

whether the defendant’s death sentence is excessive per se or substantially out

of line in comparison to the sentences imposed in similar cases upon similarly

situated defendants but is not required to find identical cases for comparison in

its proportionality review). The cases cited in the Appendix support this

conclusion because each of them shows the willingness of juries in Georgia to

impose the death penalty in cases involving evidence that the defendant

murdered multiple persons, whether in one or more than one transaction. See

OCGA § 17-10-35 (e).

      Judgment of conviction affirmed in part and vacated in part, death

sentences affirmed, and case remanded for resentencing. All the Justices

concur.




                                       60
                                APPENDIX

Tate v. State, 287 Ga. 364 (695 SE2d 591) (2010); Humphreys v. State, 287 Ga.
63 (694 SE2d 316) (2010); Stinski v. State, 286 Ga. 839 (691 SE2d 854) (2010);
O’Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008); Rivera v. State, 282 Ga.
355 (647 SE2d 70) (2007); Williams v. State, 281 Ga. 87 (635 SE2d 146)
(2006); Lewis v. State, 279 Ga. 756 (620 SE2d 778) (2005); Riley v. State, 278
Ga. 677 (604 SE2d 488) (2004); Franks v. State, 278 Ga. 246 (599 SE2d 134)
(2004); Sealey v. State, 277 Ga. 617 (593 SE2d 335) (2004); Raheem v. State,
275 Ga. 87 (560 SE2d 680) (2002), disapproved on unrelated grounds by Patel
v. State, 282 Ga. 412, 413 n. 2 (651 SE2d 55) (2007); Lance v. State, 275 Ga.
11 (560 SE2d 663) (2002); Lucas v. State, 274 Ga. 640 (555 SE2d 440) (2001);
Rhode v. State, 274 Ga. 377 (552 SE2d 855) (2001); Colwell v. State, 273 Ga.
634 (544 SE2d 120) (2001); Heidler v. State, 273 Ga. 54 (537 SE2d 44) (2000);
Morrow v. State, 272 Ga. 691 (532 SE2d 78) (2000); Pace v. State, 271 Ga. 829
(524 SE2d 490) (1999); Cook v. State, 270 Ga. 820 (514 SE2d 657) (1999);
DeYoung v. State, 268 Ga. 780 (493 SE2d 157) (1997); Raulerson v. State, 268
Ga. 623 (491 SE2d 791) (1997); Bishop v. State, 268 Ga. 286 (486 SE2d 887)
(1997); McMichen v. State, 265 Ga. 598 (458 SE2d 833) (1995).




                                      61
