PERCELL v. the STATE. , 346 Ga. App. 219 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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 12, 2018
In the Court of Appeals of Georgia
A18A0205. PERCELL v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Craig Edward Percell was convicted of family-violence
aggravated battery, two counts of DUI, possession of marijuana, reckless driving,
following too closely, failure to maintain lane, and possession of a drug-related
object. The trial court denied his motion for new trial, and Percell appeals.
Percell argues that the evidence does not support the aggravated assault and
aggravated battery verdicts the jury returned against him. Percell’s argument is moot
because those charges were merged with the family-violence aggravated battery
conviction, which is supported by sufficient evidence. Percell argues that the trial
court erred by denying his morning-of-trial motion for a continuance and by allowing
the victim to testify in rebuttal since she had remained in the courtroom during the
trial, but those decisions were within the trial court’s discretion. Finally, Percell
argues that he received ineffective assistance of trial counsel, but he has failed to
show both deficient performance and prejudice. So we affirm.
1. Sufficiency of the evidence.
Percell challenges the sufficiency of the evidence as to aggravated assault and
aggravated battery. His challenge is moot because the trial court merged those counts
into the family-violence aggravated battery conviction, which is supported by
sufficient evidence.
In considering the sufficiency of the evidence supporting a criminal conviction,
“the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in
original). It is the function of the jury, not the reviewing court, to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from the
evidence. Id. “As long as there is some competent evidence, even though
contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s
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verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)
(citations and punctuation omitted).
So viewed, the record shows that Percell was in a relationship with the victim:
they lived together and they are the parents of two children. On the day of the
incident, Percell and the victim were arguing. The victim drove off from their
residence with their infant daughter. She looked in her rearview mirror and saw
Percell rapidly approaching in his vehicle. She feared for her life. The victim swerved
her car into the adjacent lane to get out of the way, but Percell followed and rammed
her. The victim’s car spun out of control, hit a light pole, and rolled over The victim
was evacuated to a hospital by helicopter. She remembered nothing that occurred
after the collision until she awoke from a two-week coma. She fractured two
vertebrae; broke her collar bone; suffered nerve damage to her arm, rendering her arm
useless; punctured her spleen; her lungs collapsed; and she now has a stent in a main
artery.
After the victim left the hospital and while Percell was out on bond, they
reconciled. Once again they began arguing, and Percell slapped the victim. He told
her, “You of all people should know I don’t play.” Percell’s comment made the victim
believe that Percell had intentionally rammed her car.
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A bystander saw the two vehicles speeding, then the victim driving into a
turning lane, and Percell following into that lane and hitting the victim’s car. The
bystander walked to the wreck to see if she could help. The victim was unconscious
and unresponsive. She regained consciousness and began screaming that Percell was
trying to kill her.
A Georgia State Patrol trooper who worked on the specialized collision
reconstruction team that investigated the accident testified that he determined that
Percell’s truck struck the victim’s car, causing the car to flip, while he was driving
more than 56 miles per hour. There was no evidence that the driver of either vehicle
tried to brake before the impact. The team determined that Percell had to have driven
into the lane of travel into which the victim had swerved in order to strike the victim’s
car.
At the scene, an officer arrested Percell after field sobriety tests and a roadside
breath test indicated that he was under the influence of alcohol. A GBI forensic
toxicologist testified that six hours after the accident, Percell’s blood tested positive
for the presence of marijuana and alcohol, and that at the time of the accident,
Percell’s blood-alcohol level would have been .135. Officers found marijuana and a
pipe in Percell’s car.
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Percell had various explanations for what happened. He said that he came upon
the victim and stopped when he saw that she had been in an accident and that the
damage to his truck had occurred previously. Later, he said that he came upon the
victim, who looked as if she were swatting a bee as she drove, and he may have
bumped her. At trial, Percell testified that he hit the victim’s car when he took his
eyes off the road as he leaned down to answer his phone and that he had no intention
of hitting the victim’s vehicle. None of Percell’s explanations were consistent with
the evidence from the scene.
Percell argues that the aggravated assault conviction cannot be sustained
because there is insufficient evidence that any of his acts placed the victim “in
reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20
(a) (2). See also OCGA § 16-5-21. Percell also argues that the aggravated battery
conviction cannot be sustained because there is insufficient evidence that he acted
with malice. See OCGA § 16-5-24 (a). Percell’s arguments are “moot because the
trial court merged [those] count[s] into [the family-violence aggravated battery] count
for purposes of sentencing.” Lupoe v. State, 284 Ga. 576, 577 (1) n.2 (669 SE2d 133)
(2008) (citation and punctuation omitted). And the evidence supports the family-
violence aggravated battery conviction.
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To convict Percell of family-violence aggravated battery, the state had to prove
that Percell “maliciously cause[d] bodily harm to another by depriving him or her of
a member of his or her body, by rendering a member of his or her body useless, or by
seriously disfiguring his or her body or a member thereof” and that the aggravated
battery was “committed between . . . persons who are parents of the same child [or]
persons excluding siblings living or formerly living in the same household. . . .”
OCGA § 16-5-24 (a) and (g). The evidence related above authorized a rational jury
to find Percell guilty beyond a reasonable doubt of family-violence aggravated
battery. Jackson, 443 U. S. at 319 (III) (B).
2. Denial of request for continuance.
Percell argues that the trial court erred by denying his request for a continuance
to retain a private attorney and by failing to allow him to explain why he wanted to
terminate appointed counsel’s services. The trial court did not abuse his discretion.
On the morning of trial, Percell requested a continuance so that he could hire
private counsel. The trial court denied the motion on the ground that Percell had had
adequate time to hire a lawyer. The court noted that the case had been pending for
months, that he already once had continued the case and disbanded jurors, and that
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it appeared to the court that appointed counsel had worked diligently on Percell’s case
and was ready to proceed.
OCGA § 17-8-20 requires a party requesting a continuance to “show that he
has used due diligence.” “Whether a particular defendant has exercised reasonable
diligence in procuring counsel is a factual question, and the grant or denial of a
request for continuance on grounds of absence of retained counsel is a decision
within the sound discretion of the trial judge, reversible only for an abuse of that
discretion.” Flowers v. State, 275 Ga. 592, 594 (2) (571 SE2d 381) (2002) (citation
and punctuation omitted). Percell has not shown that the trial court abused his
discretion. As for Percell’s argument that the trial court did not give him the
opportunity to explain why he wanted to fire appointed counsel, the record does not
show that he sought such an opportunity.
3. Allowing the victim to remain in the courtroom through the trial and to
testify as a rebuttal witness.
Percell argues that the trial court erred by allowing the victim to remain in the
courtroom for the entire trial and then testify as a rebuttal witness after Percell
testified. He has not shown that the trial court abused his discretion.
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Under Georgia law, the victim could remain in the courtroom. OCGA §§ 17-
17-1 (3), 17-17-9, 24-6-616. Further, allowing her to testify in rebuttal “was fully
within the trial court’s discretion and does not constitute reversible error.” Shepherd
v. State, 245 Ga. App. 386, 388 (2) (537 SE2d 777) (2000) (citation omitted) (decided
under former OCGA § 24-9-61.1). Even had the victim been subject to the rule of
sequestration, “[i]n criminal cases, the violation of the rule of sequestration by any
witness either for the defense or for the prosecution goes to the credibility rather than
to the admissibility of the witness’ testimony.” Blanchard v. State, 247 Ga. 415, 417
(1) (276 SE2d 593) (1981) (citation omitted).
4. Effective assistance of counsel.
Percell argues that he received ineffective assistance of trial counsel. He
challenges trial counsel’s trial preparation, failure to move for a Jackson-Denno
hearing, and failure to make certain objections. To prevail on his claim, Percell
must prove both that the performance of his lawyer was deficient and
that he was prejudiced by this deficient performance. Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To prove that the performance of his lawyer was deficient,
[Percell] must show that his lawyer performed his duties at trial in an
objectively unreasonable way, considering all the circumstances, and in
the light of prevailing professional norms. Id. at 687-688 (III) (A). And
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to prove that he was prejudiced by the performance of his lawyer,
[Percell] must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694 (III) (B). This burden
is a heavy one, and [Percell] has not met it.
Robinson v. State, __ Ga. __ (3) (__ SE2d __) (Case No. S17A1903, decided March
15, 2018) (citation omitted). To show prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Hill v. State, 291 Ga. 160, 164 (4) (728
SE2d 225) (2012) (citation omitted). “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.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801)
(2010).
(a) Inadequate preparation.
Percell argues that trial counsel failed to visit the accident scene sufficiently
early; did not investigate businesses near the accident scene for potential witnesses
or video; did not talk with any of the known witnesses except the victim; and did not
seek outside assistance in interpreting the accident reconstruction report. But he
“provides absolutely no argument as to how the outcome would have been different
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absent these deficiencies.” Roberson v. State, 327 Ga. App. 804, 809 (3) (761 SE2d
361) (2014). “Therefore, even assuming without deciding that trial counsel’s
performance was deficient, [Percell] fails to demonstrate prejudice. . . . Mere
speculation about what the evidence would have shown had it actually been obtained
does not satisfy the requirement of showing prejudice.” Howard v. State, 298 Ga.
396, 399 (2) (782 SE2d 255) (2016).
(b) Failure to move for a Jackson-Denno hearing.
Percell points to counsel’s failure to move for a Jackson-Denno hearing to
determine the voluntariness and admissibility of Percell’s statement to law
enforcement. See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908)
(1964). An investigator with the district attorney’s office, who was involved in
interviewing Percell, testified about the circumstances of Percell waiving his rights
and giving his statement. “Counsel on appeal has not demonstrated [— or even
argued —] that the statement made by (Percell) was inadmissible and we note that the
trial court charged the jury fully on the issue of determining whether (Percell) gave
the statement freely and voluntarily. The alleged deficiencies would not have changed
the outcome.” Hubbard v. State, 224 Ga. App. 614, 615 (481 SE2d 601) (1997)
(citations and punctuation omitted).
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(c) Failure to make objections.
(i) Failure to object to testimony that evidence was consistent with collision
being intentional.
Percell argues that trial counsel was ineffective for failing to object to several
instances of law enforcement witnesses testifying that the evidence of the collision
was consistent with it being intentional because the testimony was improper expert
opinion on the ultimate issue. We do not find reversible error.
The new Evidence Code eliminates the former ultimate-issue rule “except as
to certain expert witness testimony” as set out in OCGA § 24-7-704 (b). State v.
Cooper, 324 Ga. App. 32, 34 (1) n.1 (749 SE2d 35) (2013) (“Under the new Evidence
Code, except as to certain expert witness testimony, ‘testimony in the form of an
opinion or inference otherwise admissible shall not be objectionable because it
embraces an ultimate issue to be decided by the trier of fact.’ OCGA § 24-7-704 (a).
See generally OCGA § 24-7-701 (a) (setting forth rules for lay witness testimony
regarding the witness’s opinions and inferences).”). See also Ronald L. Carlson &
Michael Scott Carlson, Carlson on Evidence, 426-428 (6th ed. 2018).
As for expert witness testimony, OCGA § 24-7-704 (b) provides,
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No expert witness testifying with respect to the mental state or condition
of an accused in a criminal proceeding shall state an opinion or
inference as to whether the accused did or did not have the mental state
or condition constituting an element of the crime charged or of a defense
thereto. Such ultimate issues are matters for the trier of fact alone.
Contrary to the state’s argument, the statute applies to all criminal proceedings, not
just those in which a defendant’s competency is at issue. See Eller v. State, __ Ga. __
(IV) (B) (__ SE2d __) (Case No. S17A1549, decided March 5, 2018) (“In criminal
proceedings, expert witnesses ‘testifying with respect to the mental state or condition
of an accused’ cannot ‘state an opinion or inference as to whether the accused did or
did not have the mental state or condition constituting an element of the crime
charged or of a defense thereto’ because ‘[s]uch ultimate issues are matters for the
trier of fact alone.’ OCGA § 24-7-704.”). It applies only to expert witnesses. Id.
(OCGA § 24-7-704 (b) “forbids experts from expressly stating a conclusion that the
accused did or did not have the requisite intent.”) (emphasis added). See also United
States v. Augustin, 661 F3d 1105, 1123 (V) (A) (11th Cir. 2011) (“(E)xpert testimony
expressly stating an opinion as to the defendant’s state of mind at the time of the
offense is barred by rule 704(b).”) (citation and punctuation omitted; emphasis
added); United States v. Kohring, 637 F3d 895, 911 (5) (A) (9th Cir. 2011) (“Rule
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704(b) applies only to expert witnesses.”) (emphasis in original). Here, although the
law enforcement witnesses were not designated as experts, the parties agree that they
testified as experts. So OCGA § 24-7-704 (b) applies.
Percell points to three examples of testimony that he contends violates OCGA
§ 24-7-704 (b). In one instance, a witness testified that Percell’s “views were
inconsistent and was not consistent with what the evidence was showing. The
evidence was suggesting that there might have been an intentional act.” In a second
instance, the prosecutor asked a witness if the evidence was “consistent with the
intent -- specific intent of striking [the victim’s] vehicle?” and the witness responded,
“Yes, sir.” In a third instance, the prosecutor asked a witness, “[T]he reason that you
questioned [Percell] about there being an argument is because this was obviously an
intentional act based on the evidence?” The witness responded, “That’s correct.”
Pretermitting whether counsel should have objected to this testimony for
violating OCGA § 24-7-704 (b), we find any error to be harmless in light of other
evidence of intent, including the victim’s testimony that Percell intended to strike her
vehicle, and the court’s instructions to the jury.
The victim — to whom OCGA § 24-7-704 (b) does not apply — testified that
she “swerved over” to get out of the way, but Percell followed in order to hit her. She
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testified that in their post-accident fight, Percell slapped her and told her, “You of all
people should know I don’t play,” from which she concluded that “this wreck was not
a[n] accident. It was intentional. . . .” She testified about a prior incident where
Percell had chased her car while he was driving his truck and afterwards told her that
he could have killed her.
The bystander testified that she saw Percell follow the victim into her lane
before suddenly hitting the back of her vehicle with his truck. The bystander testified
that when the victim regained consciousness, she began screaming that Percell was
trying to kill her.
The trial court thoroughly instructed the jury that intent was an essential
element of the crimes, which the state had the burden of proving beyond a reasonable
doubt; that the jury could infer intent from the circumstances or from Percell’s acts,
but whether to draw that inference was solely within the jury’s discretion; that Percell
would not be presumed to have acted with criminal intent; that the state had the
burden of disproving accident; and that should the jury determine that the incident
resulted from accident, then the jury should acquit.
Given these circumstances, Percell has failed to demonstrate a substantial
likelihood that the result of his trial would have been different had counsel objected
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to the challenged testimony. See Hill, 291 Ga. at 164 (4). See also Lopez v. State, 267
Ga. App. 178, 180-181 (3) (598 SE2d 898) (2004) (any error in allowing an officer
to give opinion testimony that defendant accelerating and hitting another officer’s car
was not accidental was harmless as there was ample evidence to support the
inference).
(ii) Failure to object to investigator’s testimony that Percell appeared
regretful.
Percell argues that counsel should have objected to an investigator’s testimony
that Percell appeared angry and regretful during his interview. He argues that the
testimony was speculative. Percell has not demonstrated a substantial likelihood that
the result of his trial would have been different had counsel objected to this
testimony.
(iii) Failure to object to victim’s hearsay testimony.
Percell argues that counsel was ineffective for failing to object to the victim’s
hearsay testimony “regarding the many statements that were made by others after the
fact about what they saw and heard while she was unconscious or unaware.” This
claim is “deemed abandoned because [Percell] does not support [it] with argument or
citation to authority, and mere conclusory statements are not the type of meaningful
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argument contemplated by Court of Appeals Rule 25 (a) (3).” Davenport v. State, 308
Ga. App. 140, 156 (2) (e) (706 SE2d 757) (2011) (citations and punctuation omitted).
(iv) Failure to object when the state recalled the victim.
Percell argues that counsel was ineffective for failing to object when the victim
was recalled to testify as a rebuttal witness. As described in Division 3, it was within
the trial court’s discretion to allow the victim to testify as a rebuttal witness.
“Ineffectiveness of trial counsel cannot be based on a failure to make meritless
objections.” Horner v. State, 257 Ga. App. 12, 18 (6) (570 SE2d 94) (2002).
Judgment affirmed. Ray and Rickman, JJ., concur.
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