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Pye v. State

Defendant's indictment sufficiently charged him with aggravated assault where it alleged that defendant struck the victim with a bottle and his hands which were likely to cause serious bodily injury when used offensively against a person.

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This appeal is from Darwin Leroy Pye’s conviction for felony murder arising from the death of Carlton Matthews.1 The evidence at trial showed that Pye’s co-defendant Joshua Boston quarreled with Matthews at a party and they continued it outside, where both men armed themselves with beer bottles. Pye came upon the men in a parking lot and eventually joined the altercation on Boston’s side. Seeking to withdraw, Matthews backed up the stairs of an apartment building to the third floor, where the argument came to blows. Boston and Pye each hit Matthews several times and Matthews also sustained cuts consistent with wounds that a broken beer bottle would inflict, and bruising around his neck consistent with strangulation. At some point in the conflict, Matthews either jumped or was pushed over a railing and fell, sustaining fatal head injuries.

1. Appellate counsel filed a motion to withdraw this appeal and withdraw from representation of Pye so that Pye could seek a hearing before the trial court on allegations of ineffective assistance of trial counsel. Because appellate counsel was appointed prior to the completion of post-conviction proceedings in the trial court and filed an amended motion for new trial, but did not raise ineffective assistance of counsel, Pye’s claim of ineffective assistance is deemed waived. “Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.” Thompson v. State, 257 Ga. 386 2 359 SE2d 664 1987. Since the claim has been waived, we deny the motion filed here by appellate counsel.

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