Shields v. State

328 Ga.App. 100

761 S.E.2d 516

SHIELDS

v.The STATE.

No. A14A0083.

Court of Appeals of Georgia.

July 10, 2014.

David Michael Burns Jr., Savannah, for Appellant.

Margaret Heap, Jennifer Parker Guyer, Attorney for Appellee.

McFADDEN, Judge.

After a jury trial, Maurice Shields was convicted of multiple counts of aggravated battery (family violence) and aggravated assault (family violence). He appeals the convictions, arguing that the trial court erred by denying his motion in limine to prevent reference to his status as a parolee, that the trial court erred in considering a prior conviction when sentencing him as a recidivist, and that he received ineffective assistance of trial counsel. We hold that the trial court did not err by denying the motion in limine because references to Shields' parole status were not improper, that Shields failed to meet his burden of showing the invalidity of the prior conviction used in sentencing, and that he received effective assistance of counsel. We therefore affirm the convictions.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga.App. 682(1), 746 S.E.2d 162 (2013), the evidence shows that the victim and Shields married while Shields was incarcerated. At the time of his attack on the victim, Shields had been released from prison and had been living with the victim and their daughter for five or six months. Shields and the victim were not getting along.

On the day of the incident, August 12, 2009, Shields and the victim argued. Shields became enraged, picked up the victim, threw her to the floor and threw a chair at her. The victim left the house with their daughter and went to her doctor. She then went to the parole office to inform Shields' parole officer of what happened. The parole officer said that officers would arrest Shields that day and that the parole officer would call the victim once this was accomplished.

Eventually, the victim received word that the parole officer had given up trying to locate Shields that day and would arrest him the next morning. The victim went home, and Shields was there. Shields began accusing the victim of being unfaithful and began attacking her. He stabbed her in the chest with scissors; threw a can of corn at her; grabbed a table that the victim had been using as a shield, placed the table on the victim, and began jumping on it; threw a spare tire at her twice, breaking her wrist; and sprayed her with mace.

Shields stopped attacking the victim and tried to wash the mace from her. But then he saw from the victim's phone that she had been speaking with his parole officer, and he became enraged again. He hit the victim in the eye with a lamp and threatened to kill her, holding a knife against her throat.

The next morning, several police officers and parole officers went to the house to arrest Shields. Shields knew they were coming, and he made the victim hide. When the officers arrived, Shields told them that the victim was not there. When the victim heard officers asking her daughter where her mommy was, she left her hiding place. The officers arrested Shields on a parole warrant. The victim was taken by ambulance to the hospital. The emergency room doctor who treated her testified about the victim's injuries.

1. The trial court did not err by denying Shields' motion in limine.

Shields argues that the trial court erred by denying his motion in limine to prevent references to his status as a parolee because the references impermissibly placed his character in issue. Those references primarily came from two witnesses, the victim and Shields' parole officer. The victim testified that when Shields learned that the victim had been in contact with his parole officer, Shields became enraged and assaulted her again. The victim's testimony “was relevant to prove that [Shields] had a motive to [assault] the victim, and relevant evidence is not rendered inadmissible simply because it incidentally puts the defendant's character in issue.” Terrell v. State, 271 Ga. 783, 787–788(7), 523 S.E.2d 294 (1999). ¹ See also Dickerson v. State, 273 Ga.App. 499, 501(2), 615 S.E.2d 584 (2005) (evidence that defendant was on parole at the time of arrest was admissible to show motive for giving a false name, even though the evidence might have reflected negatively on defendant's character).

Shields' parole officer testified that the victim had reported the first assault to her, leading the parole officer to obtain a warrant for his arrest, and about the circumstances of his arrest. “[T]he decision whether to admit evidence connected to an arrest lies within the discretion of the trial court. Further, all of the circumstances surrounding an arrest are admissible for whatever value the jury wants to place on them. Material evidence is not made inadmissible merely because it inadvertently places a defendant's character in issue.” Solis v. State, 268 Ga.App. 493, 500(3), 602 S.E.2d 166 (2004) (citations and punctuation omitted).

Shields has not shown that the trial court abused his discretion by denying the motion in limine.

2. Shields has not shown that the trial court erred by sentencing him as a recidivist.

Shields argues that the trial court erred by sentencing him as a recidivist under OCGA § 17–10–7(c), because one of the convictions upon which the state relied was inadmissible. Specifically, Shields argues that the state failed to prove the voluntariness of the guilty plea upon which that prior conviction was entered. The state introduced a certified copy of the conviction, which reflected that Shields had pled guilty thereto and had been represented by counsel. The burden then shifted to Shields

to prove that the plea[ was] not voluntary. [Shields], however, did not present any evidence on this point. Although he cites [Gadson v. State, 197 Ga.App. 315, 317–318(4), 398 S.E.2d 409 (1990),] for the proposition that the state, rather than he, was required to show that the plea[ was] voluntary, our decision in [ Gadson ] was based on the Supreme Court of Georgia's opinion in Pope v. State [, 256 Ga. 195, 209(17), 345 S.E.2d 831 ]. The [c]ourt subsequently overruled Pope on the issue of the allocation of burdens of proof regarding the voluntariness of pleas in non-death penalty cases.

Mikell v. State, 309 Ga.App. 608, 610, 710 S.E.2d 824 (2011) (citations and footnote omitted). “Absent an affirmative showing that [Shields'] plea was not voluntary, a trial court is entitled to rely on a presumption of regularity with regard to the plea process.” Rucker v. State, 304 Ga.App. 184, 188(2)(b)(ii), 695 S.E.2d 711 (2010) (citation and punctuation omitted).

3. Ineffective assistance of counsel.

Shields argues that trial counsel was ineffective in three ways: counsel failed to object to inadmissible hearsay; counsel did not properly inform Shields of the effects of recidivist punishment; and counsel failed to introduce evidence of Shields' mental illness in mitigation of sentencing. None of these alleged errors amounts to ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Shields is required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985). If Shields “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga.App. 108, 114(7), 686 S.E.2d 863 (2009) (citation omitted).

(a) Hearsay.

Shields argues that trial counsel was ineffective for failing to object to two specific statements which he contends were hearsay that bolstered the victim's credibility.

Shields argues that trial counsel was ineffective for failing to object to the victim's testimony that during the assault, their daughter was shouting, “Leave Mommy alone.” At the motion for new trial hearing, counsel testified that he did not object because the testimony fell under two exceptions to the hearsay rule applicable at the time of trial, the res gestae exception and the excited utterance exception. We agree, see Cox v. State, 274 Ga. 204, 206(3), 553 S.E.2d 152 (2001), and counsel was not ineffective for failing to object.

Shields argues that trial counsel was ineffective for failing to object to the victim's testimony that, when she informed the parole officer of the abuse, the parole officer said she suspected Shields had been abusing the victim. Assuming that counsel's failure to object to this testimony was error, Shields has not shown prejudice. To the extent the parole officer's suspicion was relevant, it was relevant only to the issue of whether Shields actually committed aggravated battery and aggravated assault against the victim. Given the other evidence that Shields committed those crimes, he has not shown a reasonable probability that, had counsel objected to the victim's testimony about the parole officer's...