Horne v. the State , 333 Ga. App. 353 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, 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.
http://www.gaappeals.us/rules/
June 23, 2015
In the Court of Appeals of Georgia
A15A0227. HORNE v. THE STATE.
MILLER, Judge.
Following a jury trial, Damion Horne was convicted of aggravated battery
(OCGA § 16-5-24 (a)), aggravated assault (OCGA § 16-5-21 (a) (2) (2008)), false
imprisonment (OCGA § 16-5-41 (a)), and battery (OCGA § 16-5-23.1 (a)).1 Horne
appeals from the denial of his motion for new trial, contending that he received
ineffective assistance of counsel. For the reasons that follow, we affirm.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to support the jury’s verdict, and the defendant no
longer enjoys a presumption of innocence. We do not weigh the
evidence or judge the credibility of the witnesses, but determine only
1
Horne was also charged with rape (OCGA § 16-6-1 (a) (1)), two counts of
aggravated sodomy (OCGA § 16-6-2 (a) (1)), and another count of aggravated
assault. The trial court declared a mistrial as to these counts when the jury could not
reach a verdict, and the State subsequently nolle prossed them.
whether the evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the standard
set forth in Jackson v. Virginia, 443 U. S. 307 [99 SCt 2781, 61 LEd2d
560] (1979).
(Citation omitted.) Wilson v. State, 318 Ga. App. 37 (733 SE2d 345) (2012).
So viewed, the evidence shows that the victim and Horne were in a long-term
relationship and shared a residence. On August 11, 2008, prior to the incident at
issue, the victim called 911 and reported that Horne had physically assaulted her after
he saw text messages on her phone concerning a sexual relationship with another
man. The responding officer observed that the left side of the victim’s face was very
swollen and she was very upset. Horne, who had left the residence before police
arrived, was not arrested.
On August 18, 2008, the day at issue, the victim called 911 and reported that
Horne came to the house, beat her, raped her, stabbed her with scissors, and would
not let her leave the house. When police officers responded to the scene, they caught
Horne as he was attempting to flee. A police officer made contact with the victim and
observed that she was crying, her face was swollen and bruised, one eye was swollen
and bloodshot, and she had wounds on her legs.
2
The victim was transported to the hospital. At the hospital, and during a police
interview that was recorded and played for the jury, the victim reported that, on the
day in question, Horne accused her of seeing another guy, began hitting her when she
denied it, and then grabbed her by her hair and dragged her upstairs, where he threw
her onto the bed and resumed hitting her while threatening to kill her.
A few months before the trial, the victim married Horne. At Horne’s trial, the
victim recanted her allegations of abuse. In particular, the victim testified that she lied
about the August 11 and August 18 incidents; most of her injuries were the result of
consensual rough sex with Horne, while other injuries were self-inflicted; and Horne
did not become physically violent with her, never threatened to kill her, and never hit
her on the head. The victim testified that she lied about Horne hurting her and
threatening to kill her because she hoped to get Horne into trouble for wanting to
leave her.
After the victim recanted, the State called an expert in the field of intimate
partner violence. The expert testified about the behaviors of victims of such violence,
including that some of these victims minimize the acts of violence because they want
to stay with the abuser, they often return to their abuser after an incident of violence,
victims often change their mind about participating in the prosecution of such
3
offenses and victims sometimes recant their claims of abuse once they realize the
ramifications of filing a police report.
1. In three related enumerations of error, Horne contends that trial counsel was
ineffective in handling the testimony of the State’s expert witness. Horne has failed
to establish that trial counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient and that
the deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. [See] Strickland v. Washington, 466 U.
S. 668, 687 [104 SCt 2052, 80 LEd2d 674] (1984). If an appellant fails
to meet his or her burden of proving either prong of the Strickland test,
the reviewing court does not have to examine the other prong. In
reviewing the trial court’s decision, we accept the trial court’s factual
findings and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. Furthermore, there
is a strong presumption that the performance of counsel was within the
wide range of reasonable professional lawyering, and we cannot reach
a contrary conclusion unless defendant successfully rebuts the
presumption by clear and convincing evidence. Judicial scrutiny of
counsel’s performance must be highly deferential.
(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d
136) (2010).
(a) At trial, trial counsel filed a motion in limine to exclude the expert’s
testimony regarding the behaviors of victims of intimate partner violence because the
4
expert’s testimony was not admissible and there was no evidence the victim was in
a cycle of abuse. While Horne argues that trial counsel could have supported the
motion in limine with better authority and with a better understanding of the factual
circumstances involved in this case, trial counsel’s decision on how to argue the
motion is considered strategic and rarely constitutes reversible error. See Pitts v.
State, 272 Ga. App. 182, 188-189 (4) (a) (612 SE2d 1) (2005).
In any case, Horne cannot establish that the motion in limine would likely have
been granted because the expert’s testimony was clearly relevant to explain why a
victim of intimate partner violence might recant in order to protect the abuser from
prosecution. See Parrish v. State, 237 Ga. App. 274, 277 (2) (i) (514 SE2d 458)
(1999) (where victim’s credibility is at issue, expert testimony regarding abusive
relationships is relevant to explain the victim’s behavior); see also Housing Auth. of
the City of Macon v. Younis, 279 Ga. App. 599 (631 SE2d 802) (2006) (“A motion
in limine should [only] be granted when there is no circumstance under which the
evidence under scrutiny is likely to be admissible at trial.”) (citation omitted). Indeed,
[t]he battered person syndrome is a complex area of human response and
behavior. Therefore, expert testimony must be admitted because it
supplies an interpretation of the facts which differs from the ordinary lay
perception.
5
(Citations and punctuation omitted; emphasis supplied.) Watson v. State, 278 Ga. 763,
771-772 (11) (604 SE2d 804) (2004). Since the expert’s testimony was admissible,
Horne cannot show that trial counsel rendered ineffective assistance in his handling
of the motion in limine.
(b) Horne next argues that trial counsel was ineffective for failing to effectively
challenge the expert witness’s testimony, because there was evidence that
contradicted or did not support the three-phase “battering cycle” that develops in
abusive relationships.2
Decisions regarding
how to deal with the presentation of an expert witness by the opposing
side, including whether to present counter expert testimony, to rely upon
cross-examination, to forego cross-examination and/or to forego
development of certain expert opinion, is a matter of trial strategy
which, if reasonable, cannot be the basis for a successful ineffective
assistance of counsel claim.
2
“The ‘battering cycle’ consists of three phases: the ‘tension-building’ stage
in which minor abusive episodes occur and the [victim] attempts to be as placating
and passive as possible to avoid more serious violence; the ‘acute battering’ stage in
which explosive violence occurs; and the ‘contrition’ stage in which the batterer asks
for forgiveness and makes promises, such as to seek help and to refrain from further
violence.” (Citation omitted.) Johnson v. State, 266 Ga. 624, 626 (2), n.4 (469 SE2d
152) (1996).
6
(Citation and punctuation omitted.) Brown v. State, 292 Ga. 454, 456-457 (2) (738
SE2d 591) (2013).
Here, trial counsel testified at the new trial hearing that the expert witness
testified about basic principles that were widely accepted and that no expert in the
field would refute. Trial counsel further testified that he did not seek an additional
expert on the issue of battered person syndrome because the defense’s theory was that
many of the victim’s injuries resulted from consensual rough sex and that she
fabricated some of the allegations of abuse in order to retaliate against Horne for
wanting to leave her. In light of these circumstances, Horne cannot overcome the
strong presumption that trial counsel’s decisions regarding how to deal with the
State’s expert fell within the range of sound trial strategy and reasonable professional
judgment.
Moreover, Horne cannot establish prejudice from trial counsel’s failure to
present evidence showing that the victim’s behaviors did not comport with battered
person syndrome. The expert witness did not evaluate the victim, opine that the
victim suffered from this syndrome, or specify that the victim recanted in this case
because she was a battered person. While Horne argues that trial counsel should have
challenged the expert’s testimony that false reporting occurs less than one percent of
7
the time, the expert did not opine on the veracity of the victim’s report to police in
this case.
The jury is the arbiter of credibility, and it was able to assess all of the evidence
and determine whether the victim’s recantation was credible. See Lowery v. State, 264
Ga. App. 655, 657 (3) (592 SE2d 102) (2003) (it is for the jury to determine the
credibility of witnesses, and the jury may reject a witness’s explanation where it is
inconsistent with or does not explain other evidence). The jury was entitled to reject
the victim’s trial testimony and rely upon her prior statements, which constituted
substantive evidence. See Meeks v. State, 281 Ga. App. 334, 336 (636 SE2d 77)
(2006) (“[E]ven though a witness may recant on the stand, her prior inconsistent
statements constitute substantive evidence on which the factfinder may rely.”)
(citation and punctuation omitted). Given the victim’s prior statements to police and
hospital staff that Horne assaulted her, along with those witnesses’ observations
corroborating the same, there is no reasonable likelihood that the outcome of the trial
would have been different had trial counsel more thoroughly challenged the State’s
expert to show that the victim did not suffer from battered person syndrome.
Therefore, Horne has failed to establish that trial counsel was ineffective on this
ground.
8
2. Horne next contends that trial counsel was ineffective for using the defense
of consent for the charges of aggravated assault, aggravated battery, and battery. We
discern no error.
“Trial tactics and strategy, however mistaken they may appear with hindsight,
are almost never adequate grounds for finding trial counsel ineffective unless they are
so patently unreasonable that no competent attorney would have chosen them.”
(Citation and footnote omitted.) Terrell v. State, 276 Ga. App. 102, 104 (2) (622 SE2d
434) (2005).
Regardless of whether consent is a valid defense to aggravated assault,
aggravated battery, or battery, Horne has failed to establish that trial counsel was
ineffective. Horne was charged with rape, two counts of aggravated assault,
aggravated battery, two counts of aggravated sodomy, false imprisonment, and
battery. Trial counsel testified that the general defense strategy was that the victim
consented to sex; many of the victim’s injuries were the result of consensual rough
sex; the injury to the victim’s eye was self-inflicted during the August 11th argument;
and the victim fabricated other allegations of abuse in order to retaliate against Horne.
Horne concedes that the defense was reasonable as to some of his charged offenses,
9
in particular the rape and aggravated sodomy counts that were nolle prossed after the
jury could not reach a verdict.
Given the favorable outcome as to nolle prossed offenses, we cannot say that
trial counsel’s decision to consistently employ the consent defense, whether “wise or
unwise,” was a patently unreasonable trial strategy. Cf. Lambert v. State, 287 Ga. 774,
776 (2) ( 700 SE2d 354) (2010) (despite presenting legally invalid coercion defense
to murder charge, trial counsel was not ineffective where trial counsel was
constrained by defendant’s admission that he committed fatal beating).
3. Horne also contends that trial counsel was ineffective for failing to object
to the improper argument of the prosecuting attorney. Specifically, Horne argues that
the following portion of the State’s argument was improper:
We seek justice. We seek justice, and we’re not trying to punish
innocent people.
We agree with Horne that the prosecutor’s statement was improper. See Powell
v. State, 291 Ga. 743, 745-746 (2) (733 SE2d 294) (2012) (forbidding arguments
providing or implying that the government only prosecutes guilty people). However,
“it is important to view those remarks not in isolation, but in their proper context.”
(Citation omitted.) Id. at 746-747 (2) (b).
10
Here, before the prosecutor made the improper comment, trial counsel
challenged the prosecution and investigation of the case by arguing that the State was
convinced of Horne’s guilt as soon as it arrested him because it did not corroborate
the victim’s outcry and ignored evidence undermining her claims. Specifically, trial
counsel argued that the State conducted little, if any investigation, after Horne was
arrested, ignored the lack of evidence of sexual assault, only briefly interviewed the
victim following her release from the hospital, and failed to contact the police officer
who responded to the August 11 911 call or interview individuals who witnessed the
incident, which would have revealed that the victim was not credible. When the
prosecutor made her closing argument, the prosecutor pointed out that several
impartial witnesses, including police officers and hospital staff, who made contact
with the victim following the August 18 incident testified at the trial. The prosecutor
then stated
[all of these witnesses] would have to be in a conspiracy to get Horne.
And we don’t know him. The State, I promise you, was . . . minding
their own business when the victim called the police, twice. Not once,
but twice. She called on him and said, help me; He’s trying to kill me.
We didn’t even know who he was before she called.
...
11
But why would the State get into a conspiracy to get him? Why would
these witnesses get into [a] conspiracy to get him? We seek justice. We
seek justice, and we’re not trying to punish innocent people.
Soon after these remarks, the prosecutor conceded that Horne was presumed innocent,
and asked the jury to find him guilty based on the trial evidence.
Given the context of the prosecutor’s statements,
[w]e conclude that . . . the improper remarks of the prosecuting attorney
did not undermine the fundamental fairness of the trial, and any
potential harm was mitigated by the jury’s understanding that the
prosecutor was countering defense counsel’s attack on the prosecution’s
integrity. . . . Moreover, at the close of the case, the trial court
specifically instructed the jury that neither the indictment nor closing
arguments should be considered as evidence.
(Citations and punctuation omitted.) Powell, supra, 291 Ga. at 749 (2) (b). Under
these circumstances, Horne has failed to establish a reasonable likelihood that, absent
the failure of his lawyer to object to the prosecutor’s improper remarks, the outcome
of the trial would have been different. Id.
4. Horne contends that trial counsel was ineffective for failing to file a special
demurrer to the aggravated battery count, which allowed the jury to convict him of
fracturing the victim’s cheekbone based on the uncharged altercation on August 11,
2008, rather than the charged assault of August 18. We disagree.
12
Since “a defendant can be re-indicted after the grant of a special demurrer, a
failure to file such a demurrer generally will not support a finding of ineffective
assistance of counsel.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga.
App. 831, 837 (5) (698 SE2d 365) (2010). “To succeed on his ineffective assistance
claim, [Horne] was required to show that his trial counsel’s failure to specially demur
materially impacted his ability to present a defense, thereby creating a reasonable
probability that counsel’s deficiency changed the outcome of the case.” (Citation and
punctuation omitted.) Id.Here, the aggravated battery count charged that, on August 18, 2008, Horne
“did maliciously cause bodily harm to [the victim] by seriously disfiguring her face;
said accused having accomplished said act by striking said [victim] about the face
causing a fracture to her cheek bone, forehead to swell and eye to blacken.” Horne
has not shown that trial counsel’s failure to demur materially impacted his ability to
present a defense since, although he argued that the date of the injury was unclear, his
defense at trial was that the victim’s injury was accidentally self-inflicted.
Accordingly, trial counsel’s failure to demur affords no basis for reversal. See Lewis,
supra, 304 Ga. App. at 837-838 (5).
13
5. Horne contends that trial counsel was also ineffective for failing to request
jury charges on lesser included offenses.
(a) Horne first argues that trial counsel should have requested a jury charge on
simple battery as a lesser included offense of aggravated assault. We disagree.
Here, the indictment charged that Horne committed the aggravated assault by
repeatedly striking the victim with a paddle, a “means likely to cause serious bodily
injury when used offensively against the person.” Former OCGA § 16-5-21 (a) (2)
provides that a person commits the offense of aggravated assault when that person
assaults another person with any object which, when used offensively against a
person, is likely to or actually does result in serious bodily injury. A person commits
an assault by attempting to commit a violent injury to the person of another or by
committing an act that places another in reasonable apprehension of immediately
receiving a violent injury. OCGA § 16-5-20 (a).
Contrary to Horne’s argument, former OCGA § 16-5-21 (a) (2) does not require
that the State prove actual injuries. See Gutierrez v. State, 235 Ga. App. 878, 882 (3)
(510 SE2d 570) (1998) (aggravated assault conviction does not require actual injury,
as the State may establish commission of offense by showing that serious bodily
injury is likely to result from the assault). Additionally, while Horne suggests that he
14
only struck the victim once, the victim confirmed that Horne struck her with a paddle
on the back and on the legs, suggesting that the Horne struck her more than once.
Under these circumstances, the failure to request a jury instruction on a lesser
included offense of battery cannot support a claim of ineffective assistance because
the evidence does not reasonably raise the issue that Horne may be guilty only of
battery. See, e.g., Ellis v. State, 316 Ga. App. 352, 365 (7) (d) (729 SE2d 492) (2012).
(b) Horne argues that trial counsel also should have requested a jury charge on
battery as a lesser included offense of aggravated battery. Horne was charged with
aggravated battery for maliciously causing bodily harm to the victim by seriously
disfiguring her face by striking the victim and causing a fracture to her cheek bone.
At trial, Horne asserted that the victim’s injury was self-inflicted when, on August 11,
2008, one week prior to the incident at issue in this case, she swung a bottle at Horne,
he blocked her swing, and the bottle ricocheted and hit her in the face. Since Horne’s
defense was that he did not fracture the victim’s cheekbone, we cannot say that trial
counsel’s failure to request a jury charge on battery was patently unreasonable. See
Leonard v. State, 279 Ga. App. 192, 195 (2) (b) (630 SE2d 804) (2006) (failure to
request lesser included offense of battery in connection with aggravated assault
charge based on an all or nothing defense was not patently unreasonable).
15
6. In his last enumeration of error, Horne contends that trial counsel was
ineffective for failing to request a limiting instruction on the statute of limitation for
the aggravated battery count, because this instruction conflicted with the trial court’s
jury charge on prior difficulties. We disagree.
During the victim’s testimony about the August 11 incident, the trial court
instructed the jury that it was to consider this evidence only for the purpose of
determining the state of feelings between Horne and the victim, and for no other
purpose. At the conclusion of the trial, the trial court instructed the jury that the State
was permitted to prove the commission of an offense on any date within the statute
of limitations, so long as the indictment did not specifically allege that the date of the
offense was material.
Horne speculates that these two instructions conflicted and this conflict created
a strong possibility that the jury convicted him of aggravated battery based on injuries
the victim suffered during the August 11 incident. In considering a claim that the
defendant was convicted in a manner not alleged in the indictment, however, we
focus on the record evidence and do not engage in conjecture or speculation.
McCrickard v. State, 249 Ga. App. 715, 717-718 (1) (c) (549 SE2d 505) (2001).
16
Here, the trial court charged the jury on the specific allegations of
the indictment. The court charged the jury that the State must prove the
allegations of the indictment. The evidence established the allegations
of the indictment. Other than the fact that prior difficulties evidence
exists in the record, there is nothing to indicate the jury either was
confused or ignored the trial court’s instructions and actually used such
prior difficulties evidence to convict in a manner not alleged in the
indictment.
(Punctuation omitted.) McCrickard , supra, 249 Ga. App. at 718 (1) (c).
Even assuming that the victim broke her cheekbone on August 11th, as
suggested by Horne, the cheekbone fracture was not a material element of the offense,
and there is evidence of other serious disfigurement to support the aggravated battery
conviction. Notably, the detective testified that he observed that the victim had
puncture wounds on her head, her eye was red and bruised, and she had knots all over
her forehead, and it was for the jury to decide whether the disfigurement was serious.
See Feagin v. State, 317 Ga. App. 543, 545 (1) (731 SE2d 778) (2012); see also
Ganas v. State, 245 Ga. App. 645, 646 (1) (a) (537 SE2d 758) (2000) (severe bruising
may constitute serious disfigurement). Under these circumstances, Horne’s claim that
trial counsel was ineffective for failing to request a limiting instruction fails.
Judgment affirmed. Andrews, P. J., and Branch, J., concur.
17