In the Supreme Court of Georgia

Decided: August 21, 2023

S23A0613. WHITTAKER v. THE STATE.

 PINSON, Justice.

Appellant Steven Whittaker was convicted of malice murder 

and related crimes in connection with the stabbing death of LeBron 

Hankins.1 On appeal, Whittaker contends that (1) the evidence was 

insufficient to sustain his convictions for malice and felony murder; 

(2) the trial court committed plain error by failing to instruct the 

 1 The crimes occurred on August 17, 2018. On September 4, 2018, a 

Walker County grand jury indicted Whittaker for malice murder (Count 1), 

felony murder (Count 2), aggravated assault (Count 3), and possession of a 

knife during the commission of a felony (Count 4). Whittaker was tried by a 

jury from May 24 to 25, 2021. The jury found him guilty of all counts.

Whittaker was sentenced to serve life in prison without the possibility of parole 

on Count 1 and five years on Count 4 to be served consecutively to Count 1.

The remaining counts were purportedly merged into Count 1. Whittaker filed 

a motion for new trial on June 1, 2021, which he amended twice through new 

counsel. Following a hearing, the court denied the motion for new trial on 

November 22, 2022. Whittaker filed a timely notice of appeal. The case was 

docketed to the April 2023 term of this Court and submitted for a decision on 

the briefs.
2

jury that Whittaker had no duty to retreat; (3) trial counsel gave 

constitutionally ineffective assistance in a number of ways; and (4) 

the trial court erred by failing to enter an order vacating the 

sentence for felony murder. But the evidence was sufficient to 

support his malice-murder conviction, and his sufficiency challenge 

as to his felony-murder conviction is moot because he was not 

sentenced on that count. The trial court did not err by failing to 

instruct the jury that Whittaker had no duty to retreat because 

retreat was not placed at issue. Whittaker’s counsel did not perform 

deficiently in any of the ways Whittaker asserts. And although the 

felony-murder count should have been vacated by operation of law, 

there is no sentencing error to correct because the error will have no 

actual effect on Whittaker’s sentence. So we affirm Whittaker’s 

convictions and sentence.

1. Whittaker and Hankins had been friends for decades. But as 

one of their neighbors put it, “they weren’t good for each other when 

they were drinking.” When they were drinking liquor, “[t]hey’d just 

get drunk and want to argue.” While they did not often fight
3

physically, Whittaker would often “verbal[ly] abuse” Hankins when 

drunk. Another neighbor noted that Hankins “was scared of 

[Whittaker] when they were drunk.” A third neighbor said that 

Whittaker was “[b]ad, he’s like Dr. Jekyll and Mr. Hyde” when he 

drinks liquor and he was often “bossy” to Hankins. That neighbor 

also testified that she had seen Whittaker “slap[] [Hankins] upside 

the head” before and that Hankins “was very passive.”

On the evening of August 17, 2018, Whittaker and Hankins 

were drinking beer and liquor at Whittaker’s house. Later in the 

night, Whittaker called 911 to ask for an ambulance: he told the 

operator that Hankins “stabbed me seven times in the d**n gut” and 

“I killed him.” He said Hankins had been dead for about an hour.

When Walker County Sherriff’s Deputy Charles Barrett 

walked into the house in response to the call, he heard Whittaker 

laughing in the kitchen and holding his side, and he saw Hankins 

lying on the ground in “an extremely, extremely large pool of blood.”

He noted the blood had coagulated, “[s]o some time had passed 

before the 911 call was made.” Deputy Barrett said Whittaker then 
4

“fell backwards due to [] being intoxicated.” As he applied pressure 

to Whittaker’s wound, Whittaker began laughing again. He told 

Deputy Barrett that he and Hankins had been drinking liquor, they 

had an argument, and then Hankins stabbed Whittaker in the 

stomach. Whittaker said he then blacked out “and when he came to 

he disarmed Mr. Hankins and then defended himself.” Whittaker 

claimed to have stabbed Hankins two to three times in his upper 

body. Whittaker had two stab wounds: one around his navel and 

another shallow wound to the left of his rib cage. Once EMS arrived, 

Whittaker was taken by ambulance to the hospital for treatment.

Walker County Sherriff’s Office Investigator Eddie Hill 

testified that when he arrived, Hankins was lying on his back in a 

large pool of blood, and there was so much blood that his face was 

unrecognizable. A “massive amount of coagulated blood” had pooled 

around Hankins, including “a large amount of blood in the straddletype area” of Hankins’s shorts, which Hill determined was from 

Whittaker having sat on Hankins’s stomach. He also saw a “large 

gaping hole” in Hankins’s torso, likely a postmortem wound based 
5

on the lack of bleeding in that area. And he found a knife with a 

black handle and a 3.5-inch partially serrated blade, which had 

Hankins’s blood on it.

The next day, Investigator Hill interviewed Whittaker at the 

hospital. He testified that Whittaker was not in custody or under 

arrest at that point, so he did not read Whittaker his rights under 

Miranda.2 Whittaker told Hill that he and Hankins had been 

drinking beer since noon and later had a “stiff drink.” Whittaker 

said he had no memories from after the time he spoke with a 

neighbor around 7:00 p.m. until he woke up on the kitchen floor and 

saw Hankins lying there, at which point he called 911. He then 

remembered that Hankins “stabbed me, and I came unglued.” He 

did not remember if he and Hankins argued that night. He said 

Hankins “claimed he’s a fighter” and “in martial arts,” but that “I 

don’t think the man can fight his way out of a paper bag” and that

“[a]nytime I ever scolded him . . . he ducked his head.” Two days 

later, Whittaker was arrested.

 2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
6

A GBI forensic toxicologist testified that Hankins’s bloodalcohol content (BAC) was 0.261. He explained that for an average 

social drinker, a person with a 0.261 BAC would have a “rough time” 

trying to speak clearly or stand up, but a more experienced drinker 

“can appear perfectly sober until you start asking them to do 

multiple things, divided attention.” He testified that a “more 

experienced drinker” would be someone who drinks daily over the 

course of several years.

Dr. Keith Lehman performed Hankins’s autopsy. He testified 

that Hankins suffered from 50 stab wounds, most of which were to 

the face, neck, and scalp. The stab wounds penetrated all the way to 

the bone, one punctured Hankins’s vocal box, one cut his heart, and 

one cut his right lung. Patterned wounds on Hankins’s chin 

suggested the use of a serrated blade. There were also blunt-force 

injuries to the side of Hankins’s face, a fracture of his cervical spine 

likely caused by a blow to the head, and evidence of strangulation.

Dr. Lehman determined the manner of death was homicide caused 

by a combination of the strangulation, blunt-force injuries, and stab 
7

wounds. He explained that Hankins had “a number of injuries . . . 

that have a significant lethal potential.”

2. Whittaker contends that the evidence to support his malicemurder conviction was insufficient.3 In his view, the evidence at 

most supported voluntary manslaughter because, according to 

Whittaker, Hankins started the fight when he “told Whittaker that 

Hankins could fight” while they were both drunk; Hankins 

“introduced the knife into the fight by stabbing Whittaker first”; and 

“Hankins’ excessive injuries further support that Hankins was 

killed during a sudden heat of passion.” See OCGA § 16-5-2 (a) (“A 

person commits the offense of voluntary manslaughter when he 

causes the death of another human being under circumstances 

which would otherwise be murder and if he acts solely as the result 

of a sudden, violent, and irresistible passion resulting from serious 

provocation sufficient to excite such passion in a reasonable 

 3 Whittaker also challenges the sufficiency of the evidence to support his 

felony-murder conviction. But this challenge is moot because his felony-murder 

conviction was vacated by operation of law. See Mills v. State, 287 Ga. 828, 830 

(2) (700 SE2d 544) (2010). See Division 5, below.
8

person.”).

When reviewing the sufficiency of the evidence, we view the 

evidence presented in the light most favorable to the verdicts to 

determine whether a rational trier of fact could have found the 

defendant guilty beyond a reasonable doubt. See Jackson v. 

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) 

(1979). We do not “weigh the evidence on appeal or resolve conflicts 

in trial testimony.” Byers v. State, 311 Ga. 259, 266 (2) (857 SE2d 

447) (2021) (citation and punctuation omitted). Instead, we defer “to 

the jury’s assessment of the weight and credibility of the evidence.” 

Jones v. State, 314 Ga. 692, 695 (878 SE2d 502) (2022) (citation and 

punctuation omitted). And “[w]hether or not a provocation, if any, is 

such a serious provocation as would be sufficient to excite a sudden, 

violent, and irresistible passion in a reasonable person, reducing the 

offense from murder to manslaughter, is generally a question for the 

jury.” Id. (citation and punctuation omitted).

Viewed in the light most favorable to the verdict, the evidence 

at trial was sufficient to support Whittaker’s malice-murder 
9

conviction. 

A person commits the offense of murder when he 

unlawfully and with malice aforethought . . . causes the 

death of another human being. The State, of course, must 

prove malice beyond a reasonable doubt to convict 

someone of malice murder, as malice incorporates the 

intent to kill. Express malice is that deliberate intention 

unlawfully to take the life of another human being which 

is manifested by external circumstances capable of proof

. . . . The malice necessary to establish malice murder may 

be formed in an instant, as long as it is present at the time 

of the killing. It is for the jury to determine from all the 

facts and circumstances whether a killing is intentional 

and malicious.

Benton v. State, 305 Ga. 242, 244 (1) (a) (824 SE2d 322) (2019) 

(citations and punctuation omitted). See also OCGA § 16-5-1 (a).

The evidence authorized the jury to find that Whittaker formed 

the intent and malice necessary to convict him of malice murder. 

Whittaker and Hankins were drinking alcohol at Whittaker’s home 

and got into an argument; according to Whittaker, Hankins stabbed 

Whittaker twice4; and Whittaker stabbed Hankins 50 times, 

strangled him, and broke his neck. Evidence of Whittaker’s brutal 

 4 The State does not argue or suggest that Whittaker caused these stab 

wounds himself.
10

and excessive actions in connection with his argument with Hankins 

supports the jury’s finding of the requisite malice and intent to 

support his malice-murder conviction. See Rose v. State, 287 Ga. 

238, 239 (1) (695 SE2d 261) (2010) (holding the evidence was 

sufficient to support a malice-murder conviction when, after a 

“trivial” argument, defendant stabbed victim 26 times); Campbell v. 

State, 278 Ga. 839, 840 (1) (607 SE2d 565) (2005) (holding that the 

evidence showing that the defendant initiated the fight, “tackled the 

much smaller man as he attempted to flee[,] and repeatedly stabbed 

his unarmed victim amply authorized the jury to find malice”);

Frezghi v. State, 273 Ga. 871, 871 (1) (548 SE2d 296) (2001) (holding 

that the evidence was sufficient to support a malice-murder 

conviction based on “the numerous stab wounds and the cruel and 

deliberate nature of the final wound”).

The evidence was also sufficient to authorize the jury to 

conclude that the State disproved his affirmative defense of selfdefense beyond a reasonable doubt. See Pritchett v. State, 314 Ga. 

767, 770 (1) (879 SE2d 436) (2022). “The use of excessive or unlawful 
11

force while acting in self-defense is not justifiable.” Willerson v. 

State, 312 Ga. 369, 372 (1) (863 SE2d 50) (2021) (citation and 

punctuation omitted). As an initial matter, the jury was authorized 

to reject Whittaker’s claim that Hankins was the initial aggressor 

given the evidence about their relationship and his bullying of 

Hankins. And in any event, the jury was authorized to find that 

Whittaker was not acting in self-defense when he killed Hankins 

given the “brutality of the attack” and the “extent of the victim’s 

injuries” in comparison to Whittaker’s relatively minor injuries. Id. 

at 373 (1) (holding that the evidence was sufficient to support the 

malice-murder conviction over the defendant’s claim of self-defense 

“[g]iven the brutality of the attack against the victim, the extent of 

the victim’s injuries, and the fact that [the defendant] suffered no 

injuries in the altercation”); Jimmerson v. State, 289 Ga. 364, 367 

(1) (711 SE2d 660) (2011) (holding that the evidence was sufficient 

to overcome the defendant’s justification defense when the 

defendant disarmed one victim, then shot both unarmed victims and 

continued shooting them after they had fallen to the ground); Clark 
12

v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999) (jury was properly 

instructed that “[t]he use of excessive force or unlawful force while 

acting in self-defense is not justifiable”).

Whittaker argues that the evidence supported only a conviction 

for voluntary manslaughter, on which the jury had been instructed,

and not malice murder. But the evidence here authorized the jury to 

reject his claim that he acted “solely as the result of a sudden, 

violent, and irresistible passion resulting from serious provocation 

sufficient to excite such passion in a reasonable person.” OCGA § 16-

5-2 (a) (voluntary manslaughter). The evidence authorized the jury 

to reject Whittaker’s claim that Hankins was the initial aggressor, 

and it in any event showed that Whittaker’s response to Hankins’s

statement about being a fighter and alleged initial stabbing of 

Whittaker was disproportionate and brutal: he stabbed Hankins 

more than 50 times (possibly sitting on Hankins while stabbing 

him), strangled him, broke his neck, and laughed when police 

officers responded. The evidence was not sufficient as a matter of 

law to support a finding of serious provocation that would excite 
13

such passion in a reasonable person. See Merritt v. State, 292 Ga. 

327, 331 (2) (737 SE2d 673) (2013) (“[W]ords alone generally are not 

sufficient provocation to excite the passion necessary to give rise to 

voluntary manslaughter.” (citation and punctuation omitted)). And 

the jurors also could have disbelieved Whittaker’s assertion that he 

“came unglued” after he was stabbed, such that he contends he met 

the legal requirements for voluntary manslaughter. See Moore v. 

State, 314 Ga. 351, 354-355 (877 SE2d 174) (2022) (jury authorized 

to discredit the defendant’s testimony). Moreover, Whittaker’s 

contention that Hankins stated he was a fighter and stabbed 

Whittaker first would support Whittaker’s justification defense 

(which there was sufficient evidence to disprove) and not that he 

reacted passionately. See Dugger v. State, 297 Ga. 120, 124 (7) (772 

SE2d 695) (2015) (“The distinguishing characteristic between 

[voluntary manslaughter and self-defense] is whether the accused 

was so influenced and excited that he reacted passionately rather 

than simply in an attempt to defend himself.” (citation and 

punctuation omitted)). Thus, this claim fails.
14

3. Whittaker contends that the trial court erred by failing to 

instruct the jury that he had no duty to retreat before using deadly 

force in self-defense. See OCGA § 16-3-23.1.5 Because he did not 

object to the trial court’s failure to give this instruction, he must 

show that the omission amounted to plain error. See OCGA § 17-8-

58 (b). To show plain error, Whittaker must establish that “(1) the 

alleged error was not affirmatively waived, (2) it was obvious beyond 

reasonable dispute, and (3) it affected the appellant’s substantial 

rights, which ordinarily means showing that it affected the outcome 

of the trial.” Moore v. State, 315 Ga. 263, 272-273 (4) (882 SE2d 227) 

(2022). If a defendant makes that showing, the appellate court has 

the discretion to remedy the error only if the error “seriously affected 

the fairness, integrity, or public reputation of judicial proceedings.” 

Id. at 273 (4) (citation and punctuation omitted).

 5 The instruction at issue provided:

One who is not the aggressor is not required to retreat before being 

justified in using such force as is necessary for personal defense or 

in using force that is likely to cause death or great bodily harm if 

one reasonably believes such force is necessary to prevent death or 

great bodily injury to oneself or a third person or to prevent the 

commission of a forcible felony.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2020) § 3.10.13.
15

Whittaker has failed to show an obvious error here. The noduty-to-retreat instruction is required only when “the issue of

retreat is raised by the evidence or placed in issue.” See White v. 

State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) (“Where self-defense is 

the sole defense, and the issue of retreat is raised by the evidence or 

placed in issue, the defense is entitled to a charge on the principles 

of retreat.” (cleaned up)); Higginbotham v. State, 287 Ga. 187, 189-

190 (4) (695 SE2d 210) (2010) (holding that the no-duty-to-retreat 

instruction was not warranted when the issue of retreat was not 

raised by the evidence). But the State never argued that Whittaker 

should have retreated. Whittaker argues that the State “introduced 

the ‘retreat’ concept” by presenting the evidence of his “bullying” of 

and prior difficulties with Hankins, but he does not explain how this

evidence amounted to an argument—or even asked the jury to 

infer—that Whittaker should have retreated. And that evidence had 

a much more obvious purpose: it was relevant to show that 

Whittaker bullied Hankins when the two were drinking, which 

tended to undermine Whittaker’s theory of self-defense. In any 
16

event, nothing in the record suggests the State used this evidence to 

argue that Whittaker should have retreated. Absent any indication 

in the record that the duty to retreat was placed at issue, the trial 

court did not commit any obvious error by not giving a no-duty-toretreat instruction. See Hoffler v. State, 292 Ga. 537, 542 (4) (739 

SE2d 362) (2013) (“Without evidence to warrant the [no-duty-toretreat instruction], it cannot be said that the failure to give it was 

error.”); White, 291 Ga. at 9 (2) (issue of retreat “not raised by the 

evidence so as to support the giving of a charge on the subject” where 

“the defendant testified and was not questioned as to why he did not 

leave the scene”).

Moreover, Whittaker has not shown that the failure to include 

that charge affected his substantial rights, particularly where the 

trial court thoroughly instructed the jury on the general principles 

of self-defense. See Shaw v. State, 292 Ga. 871, 873-874 (2) (742 

SE2d 707) (2013) (holding that, in light of the court’s extensive 

instructions on self-defense, including circumstances in which force 

is justified, the reasonableness of a belief that force is necessary, and 
17

threats or menaces that may lead to such a reasonable belief, the 

defendant failed to show that the failure to charge on duty to retreat 

probably affected the outcome of the trial); Edmonds v. State, 275 

Ga. 450, 453 (4) (569 SE2d 530) (2002) (“[E]ven assuming that 

retreat was in issue and [defendant’s] sole defense was self-defense, 

the failure to charge on the lack of duty to retreat would not require 

reversal because [defendant’s] defense of self-defense was fairly 

presented to the jury,” and the trial court fully instructed the jury 

on the law of justification and self-defense.). So this claim fails.

4. Whittaker argues that his counsel provided ineffective 

assistance in a number of ways. To prevail on a claim of ineffective 

assistance, a defendant must show that his counsel’s performance 

was deficient and that he suffered prejudice as a result. See 

Strickland v. Washington, 466 U.S. 668, 687-694 (III) (A)-(B) (104 

SCt 2052, 80 LE2d 674) (1984). A claim of ineffective assistance fails 

if the defendant does not establish either deficient performance or 

prejudice. See Lee v. State, 314 Ga. 724, 727 (1) (879 SE2d 416) 

(2022).
18

To establish that counsel’s performance was deficient, a 

defendant “must demonstrate that the lawyer performed his duties 

in an objectively unreasonable way, considering all the 

circumstances and in the light of prevailing professional norms.” 

Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) 

(citation and punctuation omitted). There is a “strong presumption 

that counsel performed reasonably,” and to overcome that 

presumption, a defendant must show “that no reasonable lawyer 

would have done what his lawyer did, or would have failed to do 

what his lawyer did not.” Id. (citation and punctuation omitted). In 

particular, “[d]ecisions regarding trial tactics and strategy may form 

the basis for an ineffectiveness claim only if they were so patently 

unreasonable that no competent attorney would have followed such 

a course.” Id. (citation and punctuation omitted).

To establish prejudice, a defendant must show “a reasonable 

probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Evans v. State, 315 Ga. 

607, 611 (2) (b) (884 SE2d 334) (2023) (citation and punctuation 
19

omitted). “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Lee, 314 Ga. at 727 (1) 

(citation and punctuation omitted).

(a) Whittaker contends that his counsel provided ineffective 

assistance by failing to pursue a motion to suppress the statement 

he gave at the hospital on the grounds that he was in custody and 

should have been advised of his rights under Miranda.6

Trial counsel did not render deficient performance by not 

pursuing suppression of Whittaker’s hospital statement because the 

motion would have failed. See Williams v. State, 315 Ga. 797, 806 

(2) (884 SE2d 877) (2023) (“[F]ailing to file a meritless motion is not 

deficient performance.”). “Miranda warnings are required only 

when a person is interviewed by law enforcement while in custody.” 

Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation 

and punctuation omitted). And a person is only “in custody” for 

 6 Before trial, defense counsel moved to exclude any “confessions, 

admissions or statements” made by Whittaker. But the record does not show 

an order granting or denying this motion, and the transcripts do not show a 

Jackson-Denno hearing. See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 

LE2d 908) (1964).
20

Miranda purposes “if he has been formally arrested or his freedom 

of movement has been restrained to the degree associated with a 

formal arrest.” Id. (citation and punctuation omitted). But the record 

shows that when Whittaker was at the hospital, he was being 

treated for his injuries, there was no evidence that he was restrained

in any way, the investigator asked questions about the incident 

without isolating him, and there is no indication from the record that 

he was either told he had to answer those questions or that he could 

not leave. And Whittaker does not argue that he was restrained or 

unable to leave. These circumstances do not amount to the degree of 

restraint associated with a formal arrest. See, e.g., Jennings v. State, 

282 Ga. 679, 681 (3) (653 SE2d 17) (2007) (concluding that the 

defendant was not in custody when he “was in a medical, rather than 

an investigative, setting” and when he was questioned by police 

officers in the hospital while unable to leave for medical reasons but 

not isolated by the police). 

Even if a motion to suppress Whittaker’s statement could have 

succeeded, trial counsel had a reasonable strategic basis for not 
21

seeking to suppress the statement. Counsel testified that he believed 

that Whittaker’s statement at the hospital that “[Hankins] stabbed 

me and I came unglued” supported his voluntary manslaughter 

defense, and that “manslaughter was the only shot we had.” Opting 

not to pursue a motion to suppress, even if it had merit, to ensure 

that key evidence in support of his defense would be available was a 

reasonable trial strategy that does not amount to deficient 

performance. See Thomas v. State, 311 Ga. 280, 286 (2) (857 SE2d 

223) (2021).

(b) Whittaker contends that his counsel should have requested 

a jury instruction on mutual combat. “Mutual combat occurs when 

there is combat between two persons as a result of a sudden quarrel 

or such circumstances as indicate a purpose, willingness, and intent 

on the part of both to engage mutually in a fight.” Ramirez v. State, 

307 Ga. 550, 552 (2) (837 SE2d 328) (2019) (citation and punctuation 

omitted). Whittaker contends that the mutual-combat instruction 

should have been requested because it was part of his defense theory 

and strategy to pursue the lesser-included offense of voluntary 
22

manslaughter.

The decision to request—or not request—a jury instruction is 

a strategic decision and will not constitute deficient performance

unless such decision was “so patently unreasonable that no 

competent attorney would have chosen [it].” Ramirez, 307 Ga. at 553 

(2). At the motion-for-new-trial hearing, trial counsel testified that 

“we hoped to be able to show the jury that this was mutual combat,” 

but he did not request the instruction “[b]ecause that defense eroded 

very quickly once the trial started.” He also explained that a mutualcombat defense “would have hurt our ability at the time we did 

closing argument because I would be making an argument to the 

jury which was totally ridiculous.” This explanation finds support in 

the record, which shows that Whittaker claimed that Hankins 

attacked him first—not that the two agreed to fight—and that he 

killed Hankins in self-defense. “Evidence that the victim attacked 

the defendant, such that would give rise to justification based on 

self-defense, is not a basis for an instruction on mutual combat.” 

Moore v. State, 307 Ga. 290, 296 (4) (835 SE2d 610) (2019). And even 
23

if the evidence might have supported an argument that the fight and 

resulting death happened as the result of a “sudden quarrel,” 

Ramirez, 307 Ga. at 552 (2), declining to advance a relatively weak 

theory (or, as trial counsel put it, a “totally ridiculous” one) to 

preserve credibility with the jury was a reasonable strategic 

decision, and thus not deficient performance.

(c) Whittaker contends that his counsel should have objected to 

the court’s instruction on alcoholism because no evidence supported 

the charge, which he says generally prejudiced him. 

At the request of the State, the trial court included in its charge 

to the jury Georgia Pattern Jury Instructions § 3.60.10: Voluntary 

Intoxication, No Excuse and § 3.60.30 Voluntary Intoxication: 

Alcoholism, No Defense for Crime. Trial counsel did not object. As to 

alcoholism, the court instructed:

Ladies and gentlemen, alcoholism is not involuntary and 

it’s no defense to any criminal act. A person who knows 

that he suffers from a chronic alcohol drinking problem or 

knows that he or she suffers from alcoholism may not 

intentionally and voluntarily induce or bring on a state of 

intoxication and then be excused from the commission of 
24

a criminal act during the voluntarily induced intoxicated 

state.

Assuming without deciding that trial counsel performed 

deficiently, Whittaker has failed to establish prejudice. He offers 

nothing more than a conclusory argument that the instruction was

prejudicial, and in light of the strong evidence of Whittaker’s guilt, 

omitting the instruction would not have given rise to a reasonable 

probability of a different outcome. See Mangold, 253 Ga. App. at 372 

(2) (explaining that “even assuming that the court improperly 

charged the jury [on alcoholism], we find that this instruction was 

not prejudicial to Mangold,” where undisputed evidence showed that 

the defendant shot the victim after waving a gun around); Green v. 

State, 190 Ga. App. 130, 130 (2) (378 SE2d 178) (1989) (holding that 

the alcoholism and voluntary intoxication instructions “were not 

prejudicial to defendant” in light of the trial court’s full charge to the 

jury).

(d) Whittaker contends that his counsel performed deficiently 

by failing to request a jury instruction that he had no duty to retreat. 
25

As discussed in Division 3 above, the no-duty-to-retreat instruction 

was not warranted because retreat was not raised by the evidence 

or put in issue. See White, 291 Ga. at 8-9 (2); Higginbotham, 287 Ga. 

at 189-190 (4). Because the instruction was not supported by the 

evidence, the failure to request the instruction was not deficient

performance. See Morton v. State, 306 Ga. 492, 499 (4) (c) (831 SE2d 

740) (2019); Higginbotham, 287 Ga. at 192 (5) (e) (“Since it was not 

error to fail to give a charge on no duty to retreat . . . trial counsel’s 

failure to object to the lack of such a charge was not deficient 

performance.”).

(e) Whittaker contends that counsel should have objected to the 

verdict form. The verdict form was printed with the counts of the 

indictment and blanks where the jury could write “guilty” or “not 

guilty.” To the right of Counts 1 and 2 for malice murder and felony 

murder, the trial court handwrote “voluntary manslaughter” 

followed by a blank. Whittaker contends that the handwritten lines 

for voluntary manslaughter to the right of the indicted counts 

violated Edge v. State, 261 Ga. 865, 867 (2) (414 SE2d 463) (1992), 
26

by requiring the jury to improperly reach a verdict on the murder 

count before considering voluntary manslaughter. He argues that no 

Georgia precedent says that a handwritten blank for a lesserincluded offense for consideration only after the jury has reached a 

verdict on the murder count is appropriate.

Trial counsel was not deficient for failing to object to the verdict 

form because the verdict form was not improper. “In deciding 

whether a verdict form accurately presented the law and properly 

guided the jury, this Court reviews the language of the form along 

with the trial court’s instructions to the jury.” Atkins v. State, 310 

Ga. 246, 252 (3) (850 SE2d 103) (2020). So long as the trial court 

properly instructs the jury on the lesser offenses and how to fill in 

the verdict form, there is no error merely because the verdict form 

does not expressly list the lesser offenses. See id. at 252-253 (3); 

Jones v. State, 303 Ga. 496, 503-504 (V) (813 SE2d 360) (2018). Here, 

the trial court properly instructed the jury on how to read and fill 

out the verdict form, including the handwritten portion. The court 

explained, “[B]efore you would be authorized to return a verdict of 
27

guilty of malice murder or felony murder, you must first determine 

whether mitigating circumstances, if any, would cause the offense 

to be reduced to voluntary manslaughter.” The court also noted that, 

when filling out the verdict form, the jury should “[take] into 

consideration the lesser included offenses on Counts 1 and 2 for 

voluntary manslaughter.” While Whittaker is right that we have not 

specifically addressed a verdict form with handwritten lines for 

lesser offenses to the right of the charged counts, we have upheld 

verdict forms that did not include any lines for lesser offenses when 

the trial court properly instructed the jury on the lesser offenses and 

how to complete the verdict form. See Jones, 303 Ga. at 503-504 (V); 

Buttram v. State, 280 Ga. 595, 599 (13) (631 SE2d 642) (2006).

(f) Finally, Whittaker asks the Court to consider the 

cumulative prejudicial effect of his counsel’s errors. But because 

Whittaker has not established more than one instance of deficiency, 

we need not address cumulative prejudice. See Scott v. State, 309 

Ga. 764, 771 (3) (d) (848 SE2d 448) (2020) (“Assessing cumulative 

prejudice is necessary only when multiple errors have been shown, 
28

and [the appellant] has not established even one instance in which 

trial counsel was deficient.”).

5. Finally, Whittaker contends that the trial court erred by 

failing to enter a separate order vacating his sentence for felony 

murder after it orally granted his motion to modify the sentence. The 

State correctly concedes that the felony-murder count should have 

been recorded as vacated by operation of law rather than merged. 

See Manner v. State, 302 Ga. 877, 890-891 (IV) (808 SE2d 681) 

(2017). But the incorrect nomenclature does not affect Whittaker’s 

sentence, so there is no sentencing error to correct. See Washington, 

313 Ga. at 772-773 (2). 

Judgment affirmed. All the Justices concur.