Shian Martin v. State ( 2021 )


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  •                                FIRST DIVISION
    BARNES, P. J.,
    GOBEIL and MARKLE, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    https://www.gaappeals.us/rules
    DEADLINES ARE NO LONGER TOLLED IN THIS
    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
    THE TIMES SET BY OUR COURT RULES.
    June 21, 2021
    In the Court of Appeals of Georgia
    A21A0136. MARTIN v. THE STATE.
    MARKLE, Judge.
    Following a jury trial, Shian Martin was convicted of rape, aggravated assault,
    battery, aggravated sexual battery, and theft by taking in connection with an
    altercation involving his former girlfriend. He now appeals from the trial court’s order
    denying his motion for new trial, arguing that (1) he received ineffective assistance
    of counsel due to counsel’s failure to (a) object to hearsay testimony that bolstered
    the victim’s testimony, and (b) call witnesses who would have diminished the
    victim’s credibility and given a motive for her to fabricate the allegations; and (2) the
    trial court erred by admitting hearsay testimony under the guise of a prior consistent
    statement. After a thorough review of the record, and for the reasons that follow, we
    affirm.
    The evidence presented at trial showed that the victim began dating Martin in
    November 2016.1 The relationship progressed quickly, and Martin moved in with her
    a few weeks later. Martin soon became controlling and verbally aggressive before
    escalating to physical abuse. By the following January, Martin had pushed the victim,
    grabbed her by the neck, and brandished a knife when he became angry, and the
    victim asked him to move out of her apartment.
    Although Martin had moved out of the home, the victim and Martin continued
    to see each other and have sexual relations while the victim planned to end the
    relationship. Then Martin began to show up at the victim’s apartment uninvited and
    prevent her from going to work. In early February, Martin arrived at the victim’s
    apartment upset, and he refused to allow her to leave. The victim remained trapped
    for about four days, during which Martin became abusive, grabbing her and yelling,
    before calming down. At times, Martin forced her to have sex with him. As a result
    of Martin’s conduct, the victim missed several days of work. By the end of the four
    1
    Although we generally review the evidence in the light most favorable to the
    verdict, Jackson v. Virginia, 
    443 U. S. 307
     (99 SCt 2781, 61 LE2d 560) (1979), as
    our Supreme Court recently clarified, when we consider whether an alleged
    evidentiary error was harmless, “we review the record de novo and weigh the
    evidence as we would expect reasonable jurors to have done[.]” McGarity v. State,
    __ Ga. __ , n. 2 (1) (856 SE2d 241, 243 (1)) (2021) (quoting Hampton v. State, 
    308 Ga. 797
    , 802 (2) (843 SE2d 542) (2020).
    2
    days, Martin allowed the victim to leave with him, and the two went grocery shopping
    and to Martin’s college to meet with a professor. Despite her desire to end the
    relationship, the victim told no one about these incidents and did not contact police.
    One evening in late February, the victim and Martin watched a movie in her
    apartment, and the victim allowed Martin to spend the night. The following morning,
    Martin wanted to have sex with the victim, but she declined, and Martin became
    angry. Over the next several hours, the two argued, and Martin threatened the victim
    with knives, forced his penis into her mouth with such force that she vomited, and
    raped her more than once. After they had sex the first time, Martin dragged the victim
    by the hair into the bathroom, where he made her shower and cleaned her vagina with
    a loofah glove. Martin also placed his hands around her throat so tightly that she
    urinated on herself, and he pressed his thumbs into her eyes. At one point, he told her
    that they would both die that day, and after the victim suggested they use pills instead
    of the knife, Martin gave her a handful of Benedryl. But Martin never dropped the
    knives during the encounter, leaving cuts on her arms and leg.
    Eventually, Martin calmed down and they had a discussion about their
    relationship and how Martin’s behavior would cause the victim to lose her job. The
    victim became angry, and she threw a heavy picture frame at him. Both Martin and
    3
    the victim recorded their conversations, in which Martin asked if the victim was his
    girlfriend, and the victim complained that Martin cut her with a knife and that she was
    going to get fired from her job due to Martin’s behavior. The videos contain no
    mention of the rape, and they show the victim freely moving about the apartment and
    toward the door. Shortly after recording themselves, the victim was able to escape
    while Martin was distracted. After the victim fled, Martin started to chase her until
    she went to the apartment complex leasing office. While she waited for police, she
    saw Martin drive away in her car.
    The victim spoke with police and recounted the attack. A nurse performed a
    sexual assault examination, which showed marks on the victim’s neck consistent with
    strangulation, redness at the back of the throat and around her eyes, a missing
    fingernail, and scratch marks consistent with the use of a knife. She also conducted
    a vaginal examination, which showed injury in the area, consistent with the victim’s
    complaints. A DNA swab showed Martin’s DNA in the victim’s vagina. A crime
    scene technician collected evidence from the apartment, including knives and the
    remnants of Benedryl pills, a loofah glove and Martin’s watch in the bathroom, a
    broken fingernail, and a broken picture frame. Police also obtained a warrant to
    search Martin’s phone and Kindle, uncovering several videos showing Martin and the
    4
    victim having sex, and that Martin searched the police department’s website for
    wanted persons the night after the attack.
    Thereafter, Martin was indicted for rape, two counts of aggravated assault
    arising from the use of a knife and his hands to strangle the victim, one count of
    aggravated sexual battery, and theft by taking of the victim’s car.2
    At trial, the victim testified about the events, and both the police officer who
    responded to the attack and a detective who interviewed the victim testified to the
    victim’s allegations. The State also presented testimony from a licensed counselor,
    who explained that abusers use various methods to control their victims, which often
    leads to physical force or sexual abuse to maintain power and control. According to
    the counselor, victims avoid calling police because they fear it will make the abuser
    angry, and they may feel shame or embarrassment about the relationship. She further
    explained that victims may often try to wean the abuser off as they exit the
    relationship in order to minimize the danger and appease the abuser, and they may
    want to return to the relationship or stay in contact with the abuser after they escape.
    2
    Martin was later re-indicted on the same charges, and the State nolle prossed
    the first indictment.
    5
    The State also submitted portions of the numerous jailhouse phone calls
    between Martin and the victim following Martin’s arrest. In those calls, Martin
    repeatedly professed his love for the victim, stated he was obsessed with her, asked
    her not to come to court to testify against him, apologized for the attack, and admitted
    he made a mistake. In one call, Martin told the victim that he had a problem and
    “dealt with it the wrong way.” In another call, he explained that he went “ballistic”
    that day when the victim said she did not want to have sex with him, and he admitted
    pulling her hair and putting her through “trauma.” In yet another call, Martin told the
    victim that her body belonged to him and she could not keep it from him, or
    somebody was going to “get cut.”
    The jury convicted Martin of rape; one count of aggravated assault related to
    the use of the knife; one count of battery, as a lesser included offense of aggravated
    assault arising from strangulation; aggravated sexual battery; and theft by taking the
    victim’s car. Martin moved for a new trial, raising the same errors he alleges on
    appeal. Following a hearing, at which Martin’s counsel called several witnesses to
    testify to the victim’s motive, the trial court denied the motion for new trial. Martin
    now appeals.
    6
    1. Martin first argues that he received ineffective assistance of counsel due to
    counsel’s failure (1) to call witnesses who would have explained the victim’s motive
    to fabricate the allegations, and discounted her credibility, which was critical to the
    case; and (2) to object to the detective’s hearsay testimony. We are not persuaded.
    To succeed on a claim that counsel was constitutionally ineffective,
    [Martin] must show both that his attorney’s performance was deficient,
    and that he was prejudiced as a result. Strickland v. Washington, 
    466 U. S. 668
    , 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Under the first
    prong of this test, counsel’s performance will be found deficient only if
    it was objectively unreasonable under the circumstances and in light of
    prevailing professional norms. And under the second prong, prejudice
    is demonstrated only where there is a reasonable probability that, absent
    counsel’s errors, the result of the trial would have been different. A
    “reasonable probability” is defined as a probability sufficient to
    undermine confidence in the outcome. Failure to satisfy either prong of
    the Strickland test is sufficient to defeat a claim of ineffective assistance,
    and it is not incumbent upon this Court to examine the other prong. And
    although both the performance and prejudice components of an
    ineffectiveness inquiry involve mixed questions of law and fact, a trial
    court’s factual findings made in the course of deciding an ineffective
    assistance of counsel claim will be affirmed by the reviewing court
    unless clearly erroneous.
    7
    (Citations and punctuation omitted.) Green v. State, 
    302 Ga. 816
    , 817-818 (2) (809
    SE2d 738) (2018). Additionally, when we consider a claim of ineffective assistance
    of counsel, “the trial court, not this Court, is the judge of witness credibility, and a
    trial court’s denial of an ineffectiveness claim based on conflicting evidence is not
    clearly erroneous.” (Citation and punctuation omitted.) Hartley v. State, 
    299 Ga. App. 534
    , 538 (2) (683 SE2d 109) (2009); see also Grant v. State, 
    295 Ga. 126
    , 130 (5)
    (757 SE2d 831) (2014). With these standards in mind, we turn to Martin’s claims of
    ineffective assistance of counsel.
    (a) Witnesses.
    Martin asserts that he was prejudiced by counsel’s failure to investigate or call
    his college professor, a childhood friend, his grandmother, and his fiancee, all of
    whom would have disputed the victim’s claim of an on-going relationship, called the
    victim’s credibility into question, and testified that it was the victim who was
    controlling and jealous. He contends that he instructed his attorney to contact these
    witnesses, but the attorney failed to do so.
    At the motion for new trial hearing, Martin called each of these witnesses. The
    professor testified that he met with Martin and the victim at the college in early
    February, during those same days that the victim alleged Martin had prevented her
    8
    from leaving her home. At their meeting, the victim seemed supportive of Martin and
    did not appear anxious or afraid. The professor expected to hear from Martin’s
    attorney but that never occurred. Martin’s childhood friend testified that he also saw
    Martin and the victim together during early February, and the victim admitted that she
    was jealous and liked to have her boyfriends to herself. Martin’s grandmother
    testified that she lived with Martin and the victim briefly and observed them
    communicate on a laptop throughout the day when the victim was at work, and the
    victim spoke to her about jealousy. Finally, Martin’s fiancee testified that she was in
    a relationship with Martin in late 2016 and early 2017, and that the victim was aware
    of the relationship and knew that Martin planned to move in with the fiancee. She
    stated that Martin asked her to contact his attorney, which she tried to do several
    times without success, and she left the attorney a message with the names of the
    professor and Martin’s grandmother as potential witnesses. Martin also testified that
    he gave these names to his attorney multiple times prior to trial.
    Counsel testified that he met with Martin about ten times, and Martin asked
    him to speak with his mother and grandmother, but did not give him the names of any
    other witnesses. He had no recollection of receiving a call from Martin’s fiancee, and
    there were no notes in his file with the names of other witnesses. He explained that
    9
    he did not call other witnesses because he believed he could get the same information
    from the victim, and that would avoid the risk that another witness might say
    something damaging on the stand. Counsel noted that his theory of defense was that
    the victim’s allegations were so outlandish as to be unbelievable, and he was able to
    elicit testimony to discredit the victim, specifically, that she and Martin had engaged
    in rough sex; she had not reported the time Martin allegedly held her hostage; and
    there was no evidence of vomit in the apartment after the attack.
    The trial court found that counsel made a strategic decision not to call other
    witnesses, and that counsel elicited the same information during cross-examinations
    of the other witnesses. The trial court also found counsel’s testimony more credible
    than Martin’s testimony. We see no basis to reject the trial court’s credibility finding
    here. Where counsel was not given the names of the potential witnesses, his failure
    to contact those witnesses is not deficient performance. Hartley, 299 Ga. App. at 539
    (2).
    But regardless of whether counsel’s performance was deficient, Martin cannot
    meet his burden to show that he was prejudiced in light of the overwhelming evidence
    against him. See Foster v. State, 
    318 Ga. App. 124
    , 126-127 (733 SE2d 423) (2012).
    In addition to the victim’s testimony, the evidence from the crime scene supported her
    10
    version of the events, as did the medical evidence of her injuries, and the jury also
    heard several phones calls in which Martin essentially admitted that he attacked the
    victim and expressed remorse for his conduct. Additionally, in one of those calls,
    Martin explained why he had lost control and traumatized the victim. As such, there
    is no reasonable probability that the witnesses’ proposed testimony would have
    altered the outcome. Adams v. State, 
    350 Ga. App. 340
    , 346 (3) (d) (829 SE2d 412)
    (2019) (failure to call witness who could contradict some of victim’s allegations did
    not prejudice defendant in light of overwhelming evidence).
    Moreover, in his cross-examinations of the victim and other witnesses, counsel
    was able to elicit testimony that called the victim’s credibility into question,
    specifically that no vomit was found in the apartment, she had engaged in rough sex
    with Martin on prior occasions, and she accompanied Martin to his professor’s office
    during the same time frame in which she alleged Martin held her hostage. See
    Williams v. State, 
    290 Ga. 533
    , 537 (2) (b) (722 SE2d 847) (2012) (no prejudice
    where the victim’s credibility was otherwise impeached). As a result, Martin cannot
    show the outcome of his trial would have been different had counsel called these
    witnesses, and this claim of ineffective assistance fails.
    (b) Hearsay.
    11
    Martin next contends that, although counsel objected to the detective’s hearsay
    testimony, he erroneously failed to object to similar testimony from the responding
    officer, and this testimony constituted improper bolstering. He notes, again, that the
    victim’s credibility was critical to the case and, thus, he was prejudiced by counsel’s
    deficient performance.
    At trial, both a police officer and a detective testified to the victim’s account
    of the attack. Trial counsel objected to the detective’s testimony as hearsay, but had
    not raised the same objection to the other officer’s earlier testimony. At the motion
    for new trial hearing, counsel explained that he did not object because the officer’s
    testimony simply reinforced how unbelievable the victim’s allegations were, and that
    he focused on bringing out inconsistencies between the trial testimony and her
    statements to police.
    As the trial court correctly found, this strategic reason was not deficient
    performance. See Sullivan v. State, 
    301 Ga. 37
    , 40-41 (2) (a) (799 SE2d 163) (2017).
    Generally, counsel’s decision to forego objecting to hearsay testimony can be
    reasonable trial strategy. Id.; see also Williams v. State, 
    282 Ga. 561
    , 564 (5) (a) (651
    SE2d 674) (2007). We evaluate the reasonableness of counsel’s strategic decision “in
    conjunction with the attendant circumstances of the challenged conduct with every
    12
    effort made to eliminate the distorting effects of hindsight. Thus, deficiency cannot
    be demonstrated by merely arguing that there is another, or even a better, way for
    counsel to have performed.” (Citations and punctuation omitted.) Richards v. State,
    
    306 Ga. 779
    , 782 (2) (a) (833 SE2d 96) (2019). Here, counsel’s decision not to object,
    but to highlight inconsistencies instead was a reasonable trial strategy. Id. at 781-782
    (2) (a) (counsel’s decision not to object to hearsay that might have bolstered
    witnesses’ testimony was reasonable strategy).
    Moreover, counsel’s failure to raise this objection did not prejudice Martin.
    Counsel was able to delve into inconsistencies in the victim’s account, such as the
    absence of vomit in the apartment. And, as noted above, the evidence against Martin
    was overwhelming. See Johnson v. State, 
    328 Ga. App. 702
    , 706 (2) (760 SE2d 682)
    (2014) (erroneous admission of hearsay testimony did not prejudice defendant in light
    of overwhelming evidence of guilt); Pilkington v. State, 
    298 Ga. App. 317
    , 320 (1)
    (b), (c) (680 SE2d 164) (2009) (counsel’s failure to object to police officer’s
    testimony regarding credibility of a witness did not prejudice defendant in light of the
    overwhelming evidence of guilt).
    Finally, to the extent that Martin argues that these witnesses’ testimony
    improperly bolstered the victim’s credibility, that claim is without merit. “When a
    13
    witness’s statement does not directly address the credibility of another witness . . .
    there is no improper bolstering.” Brown v. State, 
    302 Ga. 454
    , 460-461 (2) (b) (807
    SE2d 369) (2017). Thus, a witness cannot opine whether the victim was telling the
    truth, but the witness can testify to whether the victim’s statement was consistent with
    other information obtained during the investigation. Pender v. State, __ Ga. __ (3)
    (856 SE2d 302, 317 (3)) (2021). Accordingly, we conclude that this enumeration is
    without merit.
    2. Martin next argues that the trial court erred in allowing the detective to
    proffer hearsay testimony regarding the victim’s allegations that she had vomited
    when forced to perform oral sex. He contends the testimony would not qualify as a
    prior consistent statement under OCGA § 24-6-613 (c) because the prior statement
    did not predate the alleged fabrication.3 We disagree.
    Here, the detective testified that he interviewed the victim, and she stated that
    she had vomited when Martin forced his penis into her mouth. Counsel objected on
    3
    We note that the cases Martin cites to show the prior consistent statement
    must predate the alleged fabrication were decided under the old Evidence Code. But
    the new Evidence Code applied to Martin’s trial, Bullard v. State, 
    307 Ga. 482
    , 488
    (3), n. 6 (837 SE2d 348) (2019), and, as discussed above, the new Code expands the
    permissible use of such statements.
    14
    the ground that the statement was hearsay. The State argued that the statement was
    admissible as a prior consistent statement, and the trial court overruled the objection.
    We review a trial court’s evidentiary ruling for abuse of discretion.
    Bridgewater v. State, 
    309 Ga. 882
    , 886 (2) (848 SE2d 865) (2020). Under our
    Evidence Code, hearsay is defined as a “statement, other than one made by the
    declarant while testifying at the trial or hearing, offered in evidence to prove the truth
    of the matter asserted.” OCGA § 24-8-801 (c). But an out-of-court statement is not
    hearsay “if the declarant testifies at the trial or hearing, is subject to
    cross-examination concerning the statement, and the statement is admissible as a . . .
    prior consistent statement[.]” OCGA § 24-8-801 (d) (1) (A). Under OCGA § 24-6-
    613 (c),
    [a] prior consistent statement shall be admissible to rehabilitate a
    witness if the prior consistent statement logically rebuts an attack made
    on the witness’s credibility. A general attack on a witness’s credibility
    with evidence [pertaining to character or prior criminal convictions]
    shall not permit rehabilitation under this subsection. If a prior consistent
    statement is offered to rebut an express or implied charge against the
    witness of recent fabrication or improper influence or motive, the prior
    consistent statement shall have been made before the alleged recent
    fabrication or improper influence or motive arose.
    15
    Our Supreme Court recently considered this evidentiary rule, explaining that
    [w]hile the final sentence of the Code section effectively codifies our
    prior decisional law, the first two sentences expand the admissibility
    criteria to cover prior statements offered to rehabilitate a witness against
    any attack on a witness’ credibility, other than that based on character
    or prior convictions, so long as the prior statement “logically rebuts”
    that attack. Reading the Code section as a whole, it is clear that a prior
    consistent statement will be admissible only if (1) the witness’
    credibility has been attacked, by some means other than impeachment
    by evidence of character or prior convictions; and (2) the prior statement
    “logically rebuts” that attack. Further, if the attack is by a charge of
    recent fabrication or improper influence or motive, a prior statement
    may “logically rebut” the attack only if it was made before the alleged
    fabrication, influence, or motive came about.
    (Citations and emphasis omitted.) McGarity v. State, __ Ga. __ (3) (856 SE2d 241,
    247 (3)) (2021);4 see also OCGA § 24-6-613 (c); Walters v. State, 
    335 Ga. App. 12
    ,
    14 (780 SE2d 720) (2015) (recognizing that under the new Evidence Code, admission
    4
    In McGarity, our Supreme Court noted that a prior consistent statement was
    not admissible to rehabilitate a general attack on a witness’s credibility. McGarity,
    __ Ga. at __ (3), n. 6 (856 SE2d at 248 (3), n. 6). It is a close call in this case whether
    there was only a general attack on the victim’s credibility. But, as discussed infra, any
    error in admitting the prior consistent statement was harmless.
    16
    of a prior consistent statement was not limited to rebutting an allegation of recent
    fabrication).
    Here, the victim testified that she had vomited when forced to perform oral sex,
    and she was cross-examined on that issue. But counsel did not suggest that she had
    fabricated that allegation; rather, he simply tried to pin down whether she had
    vomited once or twice.5 Counsel elicited testimony from other witnesses that there
    was no sign of vomit in the apartment. The detective testified that the victim repeated
    this description of the event in her interview with police immediately after the attack.
    Counsel’s questioning thus implied that the victim’s story lacked credibility, and her
    prior statement was admissible to rebut that implication. Dorsey v. State, 
    303 Ga. 597
    ,
    603 (3) (814 SE2d 378) (2018) (prior consistent statement admissible where trial
    counsel cross-examined witness and implied that witness fabricated his testimony and
    gave inconsistent statements); Kendricks v. State, __ Ga. App. __ (1) (a) (855 SE2d
    652, 655 (1) (a)) (2021) (prior consistent statement admissible where trial counsel
    implied that victim had changed her story, thereby placing her credibility at issue).
    5
    Opening and closing arguments were not transcribed and thus we do not know
    to what extent counsel focused on the alleged inconsistency. Compare Walters, 335
    Ga. App. at 17 (noting that counsel referenced the victim’s inconsistency in closing
    argument).
    17
    Even if it was error to admit the detective’s testimony, Martin is not entitled to
    a new trial on this ground because the error was harmless.
    The improper admission of bolstering evidence is a non-constitutional,
    evidentiary error. Thus, to determine whether such error requires
    reversal, we must determine whether it is highly probable that the error
    did not contribute to the jury’s guilty verdicts. Where improper
    bolstering has occurred, this determination must be made without
    reliance on the testimony that was improperly bolstered, as the very
    nature of the error is that it is repetitive of that to which the witness has
    already testified. Instead, we must consider factors such as whether the
    State’s case was based primarily on the bolstered testimony, and whether
    the improper bolstering added critical weight to that testimony.
    (Citations and punctuation omitted.) McGarity, __ Ga. at __ (3) (856 SE2d at 249
    (3)). Here, the evidence against Martin was overwhelming, with Martin’s own
    admissions in the jailhouse calls that he made a mistake and went “ballistic” that
    morning, expressing remorse for traumatizing the victim, and asking the victim not
    to come to court to testify. In light of this overwhelming evidence, the State’s case did
    not depend on the detective’s reiteration that the victim had vomited, and the alleged
    error, if any, did not contribute to the verdict. See id.
    18
    3. Finally, Martin argues that the cumulative effect of the errors warrants a new
    trial.6 “Although we may now consider whether the cumulative effect of errors
    requires a new trial, if, as here there are not multiple errors, there can be no
    cumulative error.” (Citations and punctuation omitted.) Jones v. State, __ Ga. App.
    __ (855 SE2d 761, 764 (4)) (2021); see also Crider v. State, 
    356 Ga. App. 36
    , 50 (4)
    (846 SE2d 205) (2020). Having rejected Martin’s individual claims of error, we find
    no basis for a claim of cumulative error.
    For these reasons, the trial court properly denied the motion for new trial, and
    we affirm.
    Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.
    6
    Our Supreme Court has not determined whether non-evidentiary errors can
    contribute to cumulative error. See Finney v. State, __ Ga. __ (3) (a), n. 27 (855 SE2d
    578, 588 (3) (a), n. 27) (2021). But we can consider those evidentiary issues and
    evidentiary claims arising from ineffective assistance of counsel. Showers v. State,
    
    353 Ga. App. 754
    , 761 (2) (d) (839 SE2d 245) (2020).
    19
    

Document Info

Docket Number: A21A0136

Filed Date: 6/30/2021

Precedential Status: Precedential

Modified Date: 6/30/2021