Thomas v. State

896 S.E.2d 885

THOMAS

v.The STATE.

A23A1753

Court, of Appeals of Georgia.

January 4, 2024

Reconsideration Denied January 23, 2024

Frances C. Kuo, Lawrenceville, for Appellant.

Fani T. Willis, Kevin Christopher Armstrong, Atlanta, Pareesa Hanna Amjadi, Dane Jefferson Uhelski, for Appellee.

Markle, Judge.

Following a jury trial, Antonios Thomas was convicted of rape and aggravated sodomy. He now appeals from the denial of his motion for new trial, arguing that (1) the trial court erred by (a) failing to instruct the jury regarding impeachment of a witness; (b) admitting other acts evidence under OCGA § 24-4-413 ("Rule 413"); (c) instructing the jury on other acts evidence under Rule 413; and (d) expressing its opinion that the prior act qualified as a "sexual offense" under Rule 413; (2) he received ineffective assistance of counsel when counsel failed to (a) move to exclude the Rule 413 testimony because the State’s notice was untimely; (b) advise him properly of impeachment should he testify; and (c) investigate the case or present exculpatory witnesses; and (3) he did not knowingly and voluntarily waive his right to testify. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence showed that the victim, M. L., spent the night at a bar with friends and then returned to the apartment she shared with her boyfriend, T. T., in the early morning hours in May 2016. T. T. was at the apartment with several friends, including Thomas. After she and T. T. engaged in sex, the victim took a Xanax and fell asleep naked, and T. T. left the apartment with the friends to get some cigarettes. Thomas remained at the apartment. A short time later, the victim woke up when she felt someone touching her. She turned and saw Thomas trying to push his penis into her anus. The victim pushed Thomas away, and he ran from the apartment, partially dressed and without any shoes.

The victim chased Thomas down the street, where they encountered T. T. returning from the store. The victim told T. T. that Thomas had raped her. T. T. flagged down a police car, and the officer began to chase Thomas, who was barefoot and holding up his pants as he was running, eventually losing sight of him. The victim spoke with the investigating officers, gave a description of Thomas, and was taken to the hospital for examination.

Thomas was then indicted for rape and aggravated sodomy. Prior to trial, the State filed notice of its intent to offer evidence of Thomas’s prior conviction for statutory rape in 1998 under OCGA §§ 24-4-404 and 24-4-413. Following a hearing, and over Thomas’s objection, the trial court concluded the evidence was admissible to show motive, intent, plan, and common scheme.

At trial, the victim, T. T., and the various investigators testified as recounted above. The State also presented the testimony of the emergency room physician who examined the victiin, and the forensic biologists who processed the rape kit and tested the DNA samples. The forensic experts confirmed that samples taken from the rape kit did not identify Thomas.

The State then proffered evidence of Thomas’s prior conviction for statutory rape of a different victim, H. M., under Rule 413. Defense counsel did not object to the admission of a certified copy of the conviction under Rule 413. But she asked for and received a continuing objection to H. M.’s testimony, and the trial court gave the jury a limiting instruction. H. M. then testified that, in 1996, when she was only 15 years old, she met Thomas one night at a friend’s apartment. Thomas asked if she wanted to go to the store with him, and she agreed. On the way, however, Thomas pulled the car over, unfastened H. M.’s seatbelt, unhooked her bra, and touched her, breasts without her consent. He then moved into the passenger seat, pulled her pants and underwear down, and climbed on top of her and raped her.

After the State rested its case-in-chief, the trial court inquired whether Thomas wished to testify. The trial court advised Thomas of his right to do so, and specifically advised him that the decision was entirely his and not his attorney’s. Thomas declined to testify. The jury convicted Thomas on all charges.

Thereafter, Thomas filed a motion for new trial, which he amended several times, raising the issues he now raises on appeal. At the motion for new trial hearing, trial counsel testified that she had ample time to prepare for trial and meet with Thomas. She advised Thomas of the advantages and disadvantages of testifying at trial, including that he would be impeached with his prior convictions and the jury would be able to assess his demeanor and credibility, but that the choice was his. She confirmed that Thomas never indicated he wanted to testify. When asked about the admission of the prior acts evidence, counsel stated that she had a certified copy of the conviction, so she knew it would be admitted, but she could not remember why she did not object to the timeliness of the State’s notice under Rule 413 (b). She also did not object to the trial court’s limiting instruction or its charge to the jury regarding the Rule 413 evidence. Trial counsel then testified that she did not fail to investigate or present exculpatory evidence because her defense strategy was that Thomas did not commit the crime.

Thomas also testified at the hearing, explaining that he had met with trial counsel only five times, and he walked out on her three of those times. He stated that counsel never discussed the evidence or witnesses with him, and they did not talk about the Rule 413 evidence. He explained that counsel did not investigate any positive character evidence, such as testimony from his sister or pastor; nor did she speak to the investigator assigned to the case, who would have testified that the victim gave three different stories to police. Thomas stated that counsel scared him so much that he could not testify because she warned him that the prosecutor would bring up everything in his criminal record, and he relied on her advice even though he wanted to testify and tell his side of the story.

The trial court denied the motion for new trial, finding that the Rule 413 evidence and testimony were properly admitted, nor did the trial court comment on the evidence when giving the jury its limiting instruction or final charges. The trial court further found that Thomas had knowingly, voluntarily, and intelligently waived his right to testify based on counsel’s advice. With regard to the ineffective assistance of counsel claims, the trial court found that Thomas had not shown counsel’s performance was deficient or that he was prejudiced as a result. Thomas now appeals.

1. Thomas first argues that the trial court plainly erred when it failed to instruct the jury on attacking a witness’s credibility, specifically that the victim’s drinking and medications may have impacted her ability to properly recall or perceive the events. Thomas has not met his burden to show plain error.

[1–3] Thomas did not object to the jury instructions on the ground he raises on appeal, and thus our review is limited to whether the instructions amount to plain error. Woodard v. State, 296 Ga. 803, 806 (2), 771 S.E.2d 362 (2015).

Review for plain error means that we will reverse the trial, court only if there was an instructional error that was not affirmatively waived, was obvious beyond reasonable dispute, likely effected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. [Thomas] has the burden of showing a clear or obvious error and further making an affirmative showing that the error probably did affect the outcome below.

(Citations and punctuation omitted.) Smith v. State, 315 Ga. 357, 362 (3), 882 S.E.2d 289 (2022).¹

[4] Thomas contends that there was slight evidence to support a jury charge regarding the victim’s ability to perceive the events due to her drinking and medication use. The victim testified that she was "kind of tipsy" and had taken a Xanax when she got home. But Thomas has not shown how the instructions as given were erroneous or that he was prejudiced by the instructions. First, defense counsel extensively cross-examined the victim on the amount she had to drink and the effect of the Xanax, and she admitted that Xanax could interfere with her memory. Counsel also pointed out inconsistencies between the victim’s testimony at trial and statements she gave to police immediately after the rape. Thus, the jury was able to assess her credibility in light of this testimony. See Kittrell v. State, 358 Ga. App. 93, 96 (1), 853 S.E.2d 678 (2021).

Moreover, the jury was instructed to determine each witness’s credibility and it based on "their means and opportunity of knowing the facts about which they testify," as well as any inconsistencies in the testimony. This mirrors the pattern jury instructions, and encompasses the instruction Thomas now claims should have been, given. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2023), § 1.31.10; see also Smith v. State, 301 Ga. 79, 81-82 (3), 799 S.E.2d 762 (2017) (approving pattern instruction on credibility). As a result, Thomas cannot show plain error. Thomas v. State, 297 Ga. 750, 754-755 (4), 778 S.E.2d 168 (2015); see also Walker v. State, 311 Ga. 719, 724-725, 859 S.E.2d 25 (2021) (no prejudice shown where instructions as a whole covered omitted instructions); Thompson v. State, 341 Ga. App. 883, 885 (2), 802 S.E.2d 713 (2017) ("An erroneous jury instruction cannot be considered in isolation, but must be considered in the context of the entire jury charge on the record as a whole to determine whether there is a reasonable likelihood that the jury improperly applied the challenged instruction.") (citation and punctuation omitted).

2. Thomas next argues that the trial...