Holt v. State

352 Ga.App. 504

835 S.E.2d 336

HOLT

v.The STATE.

A19A0814

Court of Appeals of Georgia.

October 25, 2019

Teri Brown Walker, Genevieve Holmes, Cara Clark, for Appellant.

Paul L. Howard Jr., Atlanta, for Appellee.

Rickman, Judge.

Zacchaeus Holt was tried and convicted of armed robbery, aggravated battery, and possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Holt appeals. For the reasons that follow, we reverse.

Construed in favor of the verdict, the evidence presented at trial shows that Holt met the victim in September or October 2015 and explained that he had no place to stay. At some point, the victim let Holt stay with him in an apartment that the victim had moved into on September 25. During their first two weeks living together, the victim and Holt sometimes used cocaine together.

At the time of the robbery, the victim recently had a job that paid him $722 twice a month, he had about $700 cash in his possession, and he had told Holt that he had recently been paid. On the morning in question, after the two men had been up all night drinking and smoking crack cocaine, rendering the victim, in his own words, "high, high, high, you know," the victim gave Holt $100 to buy more drugs. The victim's additional cash was visible to Holt at that time. Holt left the apartment and eventually returned empty handed or with an inadequate amount of drugs. When the victim asked for his money back, Holt departed again but returned with a pistol and demanded money from the victim. The victim refused, and Holt shot him twice in the leg, which later had to be amputated. During the ensuing struggle, Holt pistol whipped the victim on the head, further injuring him, then took the victim's money. Holt then fled, and the victim called for and received help from a neighbor.

Holt, age 20 at the time of the incident, testified in his own defense that he was looking for an apartment where the victim lived, that he received social security disability payments, that the victim recently invited him to live there in exchange for $150 a month, and that Holt had made a rent payment to the victim. Holt testified that on the night of the incident, he was smoking marijuana and drinking beer while the victim was smoking crack cocaine, that the victim asked him to buy some drugs and gave him $100 to do so, that he purchased the drugs, and that the victim used them. At approximately 7:22 a.m., Holt left to purchase a gun for $100 even though he already had a loaded handgun. When he returned, the victim asked Holt for $20 to buy more drugs, but Holt refused. At that point the two men "got into [a] little altercation," and the victim, who was much bigger than Holt, attacked Holt, striking him in the face. In response, Holt pulled his loaded weapon from his waistband and fought back by striking the victim in the head, and, after the victim began to choke Holt, by pointing the gun downward and shooting the victim in the leg. Holt then panicked and fled. He denied trying to rob the victim.

Following his conviction and the denial of his motion for new trial, Holt appeals.

1. On appeal, Holt contends the trial court committed plain error by allowing the State to introduce good character evidence regarding the victim. In the alternative, he contends his trial counsel was ineffective by failing to object to the same evidence. The State counters that the evidence at issue was used to rebut specific inferences that Holt raised on cross-examination of the victim.

The State called the victim as its first witness and, during the direct examination, the State asked the victim if he was an "angry drunk, or ... angry high," which the victim denied. The State also asked the victim whether he had ever been convicted of a violent offense, which he also denied. Holt did not object to this testimony. On cross-examination, Holt impeached the victim by getting the victim to admit that he had multiple convictions for simple battery, that he had used aliases to evade arrest, that he had used cocaine in his past, that he had spent perhaps ten years in prison and was currently on parole.

The State then called as a witness the victim's boss at a nonprofit organization. He testified that the organization employed convicted felons but only nonviolent felons and that the victim had never been violent at work. The witness also testified, however, that he had never fired the victim; that the victim never had to be disciplined; and that the victim was a good worker, was "always happy to be there," and made friends with everyone. The State also called the victim's employer's human resources director as a witness. She testified that the victim tested negative for drugs when he was employed, that she had not received any complaints about the victim, and that the victim was a "very good employee," was "extremely reliable," had a "great attitude," was "very dependable," was "extremely respectful," and was "very professional." Holt did not object to this testimony from these two witnesses.

(a) Because Holt did not object to the State's introduction of good character evidence about the victim, we review the trial court's decision for plain error. See Cade v. State , 351 Ga. App. 637, 649 (4), 832 S.E.2d 453 (2019) (appellate review of evidentiary rulings without objection "are conducted for plain error affecting the [a]ppellant's substantial rights under OCGA § 24-1-103 (d)"); see also Beach v. State , 351 Ga. App. 237, 243 (3) (b), 830 S.E.2d 565 (2019).

To show plain error, [Holt] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity[,] or public reputation of judicial proceedings.

(Citation and punctuation omitted.) State v. Herrera-Bustamante , 304 Ga. 259, 264 (2) (b), 818 S.E.2d 552 (2018).

First, given that the State initially introduced the good character evidence on direct examination of the victim during its case in chief, we find no affirmative waiver¹ by Holt regarding the introduction of this evidence.²

The admissibility of evidence of a victim's character is governed by OCGA §§ 24-4-404 and 24-4-405. See Revere v. State , 302 Ga. 44, 47 (2) (a), 805 S.E.2d 69 (2017). Under these rules, "the State may only introduce evidence of a victim's good character to rebut evidence of a pertinent character trait of the victim after the defendant has first introduced such evidence at trial." (Emphasis supplied.) Id. Furthermore, "[i]t is error for a trial court to admit evidence of a victim's good character in anticipation of the defendant introducing contrary evidence at trial." Mondragon v. State , 304 Ga. 843, 844-845 (2), 823 S.E.2d 276 (2019).

Here, the State introduced evidence of two types of good character traits of the victim without Holt having opened the door to such testimony. First, on direct examination of the victim by the State, the victim testified that he did not get angry under the influence of alcohol or drugs and that he had not been convicted of a violent offense. Second, the State elicited from two witnesses numerous references to the victim being a good worker, a "very good employee," "extremely reliable," "very dependable," "extremely respectful," "very professional," and having a "great attitude," without Holt having opened the door to any character evidence whatsoever about what type of employee the victim was. This was clear error not subject to dispute. See Revere , 302 Ga. at 47-49 (2) (a), 805 S.E.2d 69 (evidence of victim's good character introduced during State's case-in-chief before defendant offered any testimony or evidence on the topic violated Rule 404 (a) (2) and, therefore, "was simply inadmissible evidence of [victim's] good character").

We turn to whether the error affected Holt's substantial rights or seriously affected the fairness, integrity, or public reputation of the proceedings. If the improper evidence included only the victim's character for violence, we would not find the requisite harm. At trial, Holt admitted hitting and shooting the victim, and, as he had planned prior to trial,³ he asserted self-defense. His assertion of self-defense involved attacking the victim's character regarding violence and asserting that the victim was the aggressor. Holt foreshadowed this tactic during opening statement, when his counsel argued that the victim's story was one of "[a]ddiction, fear, and self-preservation." Thus, "because [Holt] always intended to (and eventually did) introduce evidence that [the victim] w[as] the first aggressor[ ], any error in admitting evidence of [the victim's] good character [as it related to violence] was solely an error of sequencing." Mondragon , 304 Ga. at 845 (2), 823 S.E.2d 276. And, it is therefore highly probable that such a sequencing error did not contribute to the verdict and, accordingly, it does not amount to plain error. See Id.

That leaves the evidence regarding the victim's good character as an employee. Pretermitting whether the improper introduction of this evidence standing alone affected Holt's substantial rights or seriously affected the fairness, integrity, or public reputation of judicial proceedings, we reverse Holt's conviction on the ground addressed in Division 2.

(b) With regard to ineffective assistance of counsel,⁴ Holt's counsel's failure to object to the State's initial introduction of evidence of the victim's good character constitutes deficient performance. See Revere , 302 Ga. at 49 (2) (a), 805 S.E.2d 69. But again pretermitting whether this failure standing alone meets the test for harm in a claim for ineffective assistance, we turn to Division 2.

2. Holt contends that the trial court erred by allowing evidence of Holt's bad character over his objection, which is subject to appellate review for abuse of discretion. Smith v. State , 834 Ga. 1 (...