Green v. State

299 Ga. 337

788 S.E.2d 380

Green

v.The State.

S16A0066

Supreme Court of Georgia.

Decided: July 5, 2016

G. Richard Stepp, G. Richard Stepp, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Mary Catherine Greaber, Assistant Attorney General, Daniel J. Porter, District Attorney, Richard Allen Vandever, Assistant District Attorney, for Appellee.

HINES, Presiding Justice.

Steven James Green appeals from the denial of his amended motion for new trial following his convictions for malice murder, burglary, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon in connection with the fatal shooting of Anthony Shane Augustus and the aggravated assault of Shyrome Marshall, as well as the burglary of Marshall's home. For the reasons that follow, we affirm.

This is the second appearance of this case in this Court. In Green v. State , 295 Ga. 108, 757 S.E.2d 856 (2014), we found the evidence against Green to be sufficient to enable a rational trier of fact to find Green guilty beyond a reasonable doubt of all of the crimes of which he was convicted, and rejected Green's claim that a new trial was warranted because a juror was not impartial; we also remanded the case to the trial court to consider Green's claim that trial counsel had been ineffective, which claim could not have been practically raised at an earlier time. Id. at 112 (3), 757 S.E.2d 856. Upon remand, the trial court conducted a hearing to address Green's claims of ineffective assistance of trial counsel, and denied Green's amended motion for new trial based thereon.

As noted in our prior decision, evidence presented at trial showed that: Marshall, accompanied by his friend Augustus, returned to his apartment one evening to find that the front door had been forced open; Marshall entered the apartment and Green struck him 15 or 16 times with a pistol; Green placed the pistol to Marshall's head and directed Marshall to give him money; Augustus distracted Green; Marshall ran to a nearby apartment; Augustus was fatally shot; and Green and another man ran from Marshall's apartment. Green , 295 Ga. at 109, 757 S.E.2d 856.

1. In this appeal, all of Green's enumerations of error relate to the trial court's denial of his amended motion for new trial based on the alleged ineffective assistance of trial counsel. Generally, in order to prevail on a claim of ineffective assistance of counsel, Green must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis , 253 Ga. 782, 783, 325 S.E.2d 362 (1985), citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the “strong presumption” that counsel's performance fell within a “wide range of reasonable professional conduct,” and that counsel's decisions were “made in the exercise of reasonable professional judgment.” Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783, 325 S.E.2d 362. “ ‘We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State , 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

a) In its case-in-chief, the State presented the testimony of Rachael Anderson, who was Green's girlfriend at the time of the crimes. Before her testimony, the State informed the court that another witness, John Manning, had voluntarily come to trial that day, but had left, and that Manning had since been located, had been served with a subpoena, and would be in court at 8:30 the next morning. The State further declared that it anticipated that Manning would impeach Anderson's testimony, and that it would ask Anderson questions, the answers to which Manning would presumably impeach in the morning. And, during its examination of Anderson, the State asked her several questions regarding whether she had told Manning that Green had told her certain details of the events in Marshall's home, including whether she “recall [ed] telling John Manning that Green shot one of the guys?” Anderson consistently answered these questions to the effect that she had no recollection of any conversation with Manning about Green's case, did not have the type of relationship with Manning that would have provided a basis for a discussion of the case, and had he brought the subject up, she would have informed him that she did not wish to discuss it. On cross-examination, she testified that as best she could recall, she had met Manning when she worked at a bar or nightclub, “he developed some kind of obsession with me and a friendship with [Green] of some kind,” and that he had “tried very hard several times” to date her.

Manning was never called to testify,¹ and Green contends that it was ineffective assistance for counsel to fail to move the court to declare a mistrial, or to strike the questions and answers regarding Manning from the record based upon that failure. However, Green fails to show prejudice arising from the failure.

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant's right to a fair trial. Whether the statements are so prejudicial as to warrant a mistrial is within the trial court's discretion.

Wilkins v. State , 291 Ga. 483, 486, 731 S.E.2d 346 (2012) (Citations omitted.) And, the trial court properly instructed the jury that questions by the attorneys were not evidence, Anderson's responses to the State's questions did not agree that the premises of the questions were true, and therefore they were not evidence that the premises of the questions had any basis in fact. In such circumstances, there is no reasonable probability that striking the questions and answers, or giving a further instruction to the jury that the State's questions were not evidence, would have produced different verdicts. Jones v. State , 290 Ga. 576, 580, 722 S.E.2d 853 (2012). Nor is it reasonably probable that the trial court would have declared a mistrial rather than give a curative instruction, as a mistrial would not have been essential to preserve Green's right to a fair trial. Id.

b) After the testimony of State's witness Marshall, the jury was excused and, while Marshall was still on the witness stand, the court questioned the veracity of Marshall's testimony that he was not a drug dealer; after questioning Marshall itself, the court found him in criminal contempt of court for not testifying truthfully, and ordered that he serve 20 days in jail for the contempt. After two other witnesses testified, trial counsel asked the court whether the court's finding of criminal contempt could be used to impeach Marshall's testimony; the court responded that it would not be appropriate to inform the jury that the court had concluded that a witness had lied in his testimony, and that to do so would potentially interfere with the jury's independent determination of Marshall's credibility.

Green asserts trial counsel was ineffective when he failed to object to the court's ruling and therefore preserve appellate review of this issue, contending that impeachment of Marshall by the contempt finding would have been appropriate. At the time of Green's 2012 trial, the impeachment of a witness was governed by former OCGA § 24–9–84.1 (a),² and Green contends that, as former OCGA § 24–9–84.1 (a) (3) states that a witness can be impeached by evidence that he “has been convicted of a crime ... if it involved dishonesty or making a false statement,” a witness can thus properly be impeached with a finding that the witness had been held in criminal contempt for falsely testifying. The State, however, notes that in Hawes v. State , 266 Ga. 731, 734, 470 S.E.2d 664 (1996), this Court observed that the Court of Appeals had then recently held “that convictions for both criminal and civil contempt are neither felonies nor misdemeanors,” citing Flanagan v. State , 212 Ga.App. 468, 469, 442 S.E.2d 16 (1994), and the State asserts that criminal contempt thus cannot serve as a basis for impeachment under former OCGA § 24–9–84.1 (a) (3). However, in doing so, the State ignores the fact that, in Hawes, this Court specifically “[a]ssum[ed] without deciding that a criminal contempt citation based upon the false swearing out of a warrant is not a crime malum in se, and therefore does not involve moral turpitude for purposes of witness impeachment,” supra, and consequently Hawes does not stand for the proposition that a finding of criminal contempt cannot serve as a basis for impeachment under former OCGA § 24–9–84.1 (a) (3). But, just as determining whether the contempt finding in Hawes could serve as a basis for impeachment under that statute was not necessary to a resolution of the issue presented in that case, so too is such a determination unnecessary here.

The trial court was correct to be concerned that its finding that Marshall was in criminal contempt could invade the jury's role. Indeed, as this Court has observed:

OCGA § 17–8–57 says that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused....” One of the purposes of OCGA § 17–8–57 “is to prevent the jury from being influenced by any disclosure of the trial court's opinion regarding the credibility

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