Oliver v. the State , 337 Ga. App. 90 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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
May 2, 2016
In the Court of Appeals of Georgia
A16A0096. OLIVER v. THE STATE PE-003C
PETERSON, Judge.
After a jury trial, Stanley James Oliver was convicted of kidnapping with
bodily injury, rape, and aggravated assault of his former girlfriend, F. W. He appeals
the denial of his motion for a new trial, arguing that his counsel was ineffective for
(1) failing to subpoena Oliver’s telephone records for potential use at trial; (2)
opening the door to admission of evidence of Oliver’s acquittal on prior charges; and
(3) failing to request a limiting instruction on that prior bad acts evidence. Because
trial counsel’s questioning that opened the door to admission of Oliver’s prior
acquittals did not constitute deficient performance, and because the other complained-
of actions by defense counsel did not create a reasonable probability of a different
outcome, we affirm.
“On appeal, the evidence must be viewed in the light most favorable to support
the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver
v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citation omitted). So viewed,
F. W. had been romantically involved with Oliver but broke off contact with him after
he became violent with her on at least one occasion in February 2008. On March 8,
2008, Oliver came to F. W.’s mother’s house, where F. W. was staying, and she went
with him to his home. F. W. testified that Oliver indicated he “wanted to talk” and
“work things out” but she went with him because she was scared. She testified that
she remained at the house until March 12, smoking methamphetamine with Oliver but
having no food or drink during that time. Oliver took the battery from F. W.’s phone.
Shortly after F. W. arrived at Oliver’s house, two visitors came over, but F. W. didn’t
seek help from them because she “didn’t think that it was gonna get as bad as it got.”
The following day, however, Oliver began beating her, hitting her with his fists, a
strap and a fireplace poker, ripping out some of her hair, and threatening to kill her.
When F. W. would fall off a couch, he would hit her again and tell her to get back on
the couch and not move. At one point, F. W. approached the door to the home, and
Oliver stabbed her in the leg with a knife. On her last night in the home, F. W. and
Oliver had sexual intercourse; she testified that she did not want to but “thought that
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was the only way I was gonna get to leave.” On March 12, while Oliver was in the
bathroom, F. W. saw her mother’s car in the driveway and left with her.
F. W. went to a hospital, where she underwent a medical examination and
received treatment. The sheriff’s deputy who was dispatched to the hospital testified
that F. W. was “contused from head to foot,” with a large patch of hair having been
pulled out of her scalp, a puncture wound in her thigh, and various lacerations and
abrasions over her body. A Georgia Bureau of Investigation agent took pictures of
F. W.’s injuries that were entered into evidence. Agents who investigated the scene
at Oliver’s home recovered a fire poker, leather strap and knife. They also found a
large clump of hair that was shown to have been forcibly removed from F. W.’s head.
Oliver defended himself through extensive cross-examination of F. W.,
testimony by friends, and his own testimony. Several defense witnesses gave
testimony to the effect that they had seen F. W. during the time period in question and
she did not appear held against her will. Defense witnesses testified in particular that
during that time F. W. mentioned plans to marry Oliver and had several personal
items such as toiletries at his home.
Oliver testified that on March 8, 2008, he telephoned F. W., invited her to go
out to a bar, and picked her up near her mother’s home, per her instructions. Oliver
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testified that F. W. never asked to be let out of the house and the two left his house
at least once during her visit. He denied stabbing her with the knife, hitting her with
his fists or the fire poker or strap that were in evidence, or pulling out her hair. Oliver
said that at one point F. W. left the house and came back looking as though she had
been in a fight and suggested that her injuries were caused by another man. Oliver
declined to dispute that the clumps of hair found in his home belonged to F. W. He
said he and F. W. had consensual sex multiple times during her visit and denied that
he raped her.
Oliver was convicted on all counts at trial. He moved for a new trial, arguing,
among other things, that the trial judge had erred in allowing F. W. to testify about
Oliver’s earlier acquittal on similar crimes against another person. The judge who
considered his motion for new trial (not the judge who presided over the trial)1
granted Oliver a new trial on that ground. We reversed, with the clarification that our
ruling did not affect the motion judge’s ability to consider remaining issues raised in
the motion for new trial. State v. Oliver, 326 Ga. App. 759 (755 SE2d 293) (2014).
1
The case apparently was transferred from the trial judge to a different judge
after trial. For clarity, we will refer to the judge who presided over the trial as the
“trial judge” and the judge who ruled on the motion for new trial as the “motion
judge.”
4
The motion judge subsequently considered, and rejected, Oliver’s claims of
ineffective assistance of counsel. That is the ruling before us now.
In order to prevail on an ineffective assistance of counsel claim, Oliver “must
show that trial counsel’s performance fell below a reasonable standard of conduct and
that there existed a reasonable probability that the outcome of the case would have
been different had it not been for counsel’s deficient performance.” Scott v. State, 290
Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U. S.
668 (104 SCt 2052, 80 LE2d 674) (1984)). In reviewing a claim of ineffective
assistance, the appellate courts give deference to the lower court’s factual findings
and credibility determinations unless clearly erroneous, but review a lower court’s
legal conclusions de novo. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831)
(2014) (citation omitted).
1. Oliver first argues that his trial counsel’s failure to subpoena Oliver’s
telephone records for possible use at trial amounted to ineffective assistance of
counsel. We disagree.
The phone records in question apparently would have shown that F. W. made
telephone calls to Oliver in the days leading up to the kidnapping. The records also
appear to show calls back and forth between the two on March 8, the day F. W. says
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Oliver picked her up at her mother’s home. At the motion for new trial hearing, trial
counsel testified that those records would have been helpful to rebut F. W.’s
testimony that she had not had “consensual contact” with Oliver in the weeks leading
up to the incident, did not call him or answer his calls, and was surprised when he
showed up at her mother’s home. The defense also suggests on appeal that the State’s
case would have been rebutted by phone record entries showing that Oliver placed
calls on his phone while outside of his home during the weekend that F. W. claimed
she was being involuntarily held there. Although counsel introduced Oliver’s cell
phone into evidence at trial, he did not pursue any questioning about its call log,
apparently because the battery was dead. The motion judge rejected Oliver’s claim
of ineffectiveness on this basis, finding that counsel’s performance in failing to
subpoena the records was not deficient, but strategic, in the light of trial counsel’s
testimony that he thought the defense had “overwhelming evidence” that Oliver and
F. W. were “living as man and wife.”
The motion judge’s conclusion that trial counsel made a strategic decision not
to use the records because he had enough other evidence to make the defense case is
undermined by trial counsel’s apparent failed attempt to present evidence about the
phone calls using Oliver’s phone itself. But, assuming without deciding that trial
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counsel’s performance was deficient in this regard, we find that there is not a
reasonable probability that the outcome of the case would have been different had
counsel obtained and introduced the records. Although F. W.’s credibility was an
important issue at trial, the considerable physical evidence corroborating F. W.’s
testimony — and rebutting Oliver’s — kept this case far from the kind of “he said,
she said” credibility contest in which we might find prejudice. See State v. Crapp,
317 Ga. App. 744, 748 (2) (732 SE2d 806) (2012) (failure to introduce available
documents corroborating defendant’s testimony prejudicial where trial was “pure
credibility contest” with State’s case “resting largely upon the identification
testimony of one witness”). F. W. presented at the hospital with bruising all over her
body, a large clump of hair missing, and a wound in her leg, supporting her claim that
Oliver had assaulted her, including stabbing her when she tried to leave his home.
Police found at Oliver’s home clumps of F. W.’s hair, and the items she claimed
Oliver had assaulted her with. This is not a “he said, she said” case, but a “he said,
she said, with a lot of physical evidence corroborating what she said” case. See
generally Wallace v. State, 294 Ga. 257, 260 (3) (b) (754 SE2d 5) (2013) (considering
strength of State’s case in evaluating whether prejudice is shown).
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Once the jury concluded, based in part on this physical evidence, that Oliver
was lying when he denied assaulting F. W. or keeping her in his home, it also was
entitled to disbelieve his claim that their sexual activity was consensual. Although the
phone records might have tended to show that events did not transpire exactly as
F. W. had claimed — i.e., that she may have been in contact with him more than she
admitted, or that Oliver left the home at some point during the time she was staying
at his house — they did not refute the core claims at issue: that Oliver had assaulted
and raped F. W. and, for at least some period of time, held F. W. against her will. See
Crapps v. State, 329 Ga. App. 820, 827 (3) (a) (766 SE2d 178) (2014) (no prejudice
given that phone records that allegedly showed victim repeatedly phoned defendant
prior to the incident would not refute evidence showing that defendant harassed and
intimidated victim on the evening in question). Any deficient performance by counsel
in failing to obtain or present Oliver’s phone records did not prejudice the defense to
the extent required to merit reversal.
2. Oliver next argues that his trial counsel was ineffective when he opened the
door to admission of the evidence of Oliver’s earlier acquittal on similar charges
involving a different victim. We disagree.
8
The evidence of the earlier acquittal was the subject of the prior appeal in this
case, in which we held that the trial judge had not erred in admitting the evidence. See
Oliver, 326 Ga. App. at 763-64 (3). The admission of the evidence came during the
testimony of F. W., after Oliver’s counsel questioned her about her failure to call law
enforcement on the earlier occasion when, she claimed, Oliver beat her. The State
successfully argued that Oliver’s counsel had opened the door for F. W. to testify
about what Oliver told her about the prior charges of which he was acquitted and how
that related to her failure to call the police. Id. at 759-60 (1). On redirect, F. W.
testified that Oliver had been acquitted on similar charges, she had overheard some
conversation indicating that Oliver was, in fact, guilty of those charges, and that the
acquittal had influenced her not to contact police. Id. at 760-61 (1). In particular,
F. W. testified that, regarding the woman who had testified against him in the other
case, Oliver had told F. W. that he “was gonna nail their door shut and burn them
out.” Id. at 761. F. W. also testified that Oliver had said that if he were convicted of
the prior offenses, he would “get the . . . jailer’s gun and shoot” the woman who had
testified. Id. Defense counsel did not request a limiting instruction and one was not
given by the trial judge. Rejecting Oliver’s claim that opening the door to this line of
questioning by the State amounted to ineffective assistance of counsel, the motion
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judge found that a central part of the defense strategy was attacking F. W.’s
credibility, including her failure to report Oliver’s previous uncharged offenses
against her, and that the strategy was a reasonable one.
The motion judge’s conclusion that questioning F. W. about her failure to
report the earlier beating was strategic is not clearly erroneous. Although trial counsel
moved in limine to exclude evidence of Oliver’s prior encounters with the criminal
justice system and testified that opening the door to the admission of prior bad acts
was not part of a strategic plan, he also testified that attacking F. W’s credibility was
of “paramount importance.”
Whether an attorney’s trial tactics are reasonable is a question of law, not fact.
Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). And in assessing
the objective reasonableness of a lawyer’s performance, we are not limited to the
subjective reasons offered by the trial court for his conduct; “[i]f a reasonable lawyer
might have done what the actual lawyer did — whether for the same reasons given
by the actual lawyer or for different reasons entirely — the actual lawyer cannot be
said to have performed in an objectively unreasonable way.” Hughley v. State, 330
Ga. App. 786, 791-92 (4) (769 SE2d 537) (2015). We agree with the motion judge
that questioning F. W. about her prior failure to contact law enforcement was a
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reasonable strategy. How to conduct cross-examination is a tactical decision within
the exclusive province of counsel. Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529
SE2d 393) (2000). We can see few avenues of defense in this case other than
challenging F. W.’s story by attacking her credibility.
Moreover, it was not a foregone conclusion that trial counsel’s questioning was
going to result in admission of Oliver’s acquitted charges. Although the State’s
lawyer had elicited on direct examination F. W.’s testimony that she did not call
police after the earlier incident because she was afraid of Oliver, defense counsel did
not ask F. W. about the source of her fear. Instead, he confirmed her earlier testimony
that she had not reported the matter due to fear, questioned her about her mother’s
failure to report the incident, then sought to undermine her story by asking about her
lack of documentation of her injuries and the steps she would have had to take to hide
them from others. We ultimately ruled that this opened the door to admission of the
prior acquittals, but the motion judge’s earlier ruling to the contrary indicated that
reasonable minds can differ on this point. Cf. Marshall v. State, 275 Ga. 740, 745 (10)
(571 SE2d 761) (2002) (not deficient performance where it would not have been
unreasonable for counsel to believe that questioning would not open the door to the
introduction of defendant’s prior conviction). “[T]actical decisions, even if they
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misfire, do not generally equate with ineffectiveness.” Crawford v. State, 252 Ga.
App. 722, 725 (3) (556 SE2d 888) (2001).
3. Oliver also argues that his trial counsel was ineffective in that he failed to
request a limiting instruction once evidence of the prior charges against Oliver were
admitted. We disagree.
Oliver suggests that his lawyer should have asked for an instruction that the
jury should consider the evidence of the acquittal only for its effect on F. W.’s state
of mind. The motion judge found that trial counsel performed deficiently in this
regard. On appeal, the State effectively concedes that trial counsel’s performance was
deficient, in the light of the motion judge’s factual finding that trial counsel had
offered up no strategic reason for not requesting a limiting instruction. But the State
argues that the motion judge correctly concluded that any deficiency in failing to ask
for a limiting instruction did not prejudice the defense.
As suggested by the State’s concession, the evidence supports the motion
judge’s finding that there was no strategy involved in failing to request a limiting
instruction. Asked whether he could think of any strategic reason why he would not
have wanted a limiting instruction, trial counsel replied that he “felt absolutely
overwhelmed” when the motion judge ruled that the evidence would be admitted.
12
Compare Phillips v. State, 285 Ga. 213, 220 (5) (c) (675 SE2d 1) (2009) (no
ineffectiveness where counsel testifies he did not request a limiting instruction
because such an instruction might draw attention to the evidence); but see Hughley,
330 Ga. App. at 791-92 (assessment of objective reasonableness of lawyer’s
performance not limited to subjective reasons offered by trial counsel).
However, assuming without deciding that trial counsel performed deficiently
by failing to request the instruction, we agree with the State that this failure was not
prejudicial. As discussed in Division 1, the evidence against Oliver was strong. See
Wallace, 294 Ga. at 260 (3) (b). Moreover, the State did not bring out the specific
facts of the underlying charges, merely eliciting testimony that Oliver had faced
similar charges involving another female victim. Failure to request a limiting
instruction was deemed not prejudicial in Wallace, even though it was a prior
conviction that was at issue. See id. (no prejudice in failure to request limiting
instruction when evidence was relevant to the indicted charge, the State did not bring
out the specific facts of the underlying conviction, offense of prior conviction was not
one likely to inflame jury’s passions, and the evidence against the defendant was
strong). The prejudicial effect of an acquittal, put before the jury here, would have
been even less. “Since there is no reasonable probability that the outcome of the trial
13
would have been different if counsel had requested the limiting instruction, the
[motion judge] correctly denied [Oliver]’s claim of ineffective assistance of counsel.”
Freeman v. State, 269 Ga. App. 435, 440 (3) (c) (604 SE2d 280) (2004).2
Judgment affirmed. Phipps, P. J., and Dillard, J., concur.
2
We have assumed for the sake of analysis that trial counsel performed
deficiently in multiple ways. Given the totality of the evidence before the jury and the
strong record support for the verdict, even assuming that trial counsel had performed
deficiently both by failing to subpoena Oliver’s telephone records and by failing to
request a limiting instruction, there is no reasonable probability that the outcome of
the trial would have been different. See Daughtry v. State, 296 Ga. 849, 862 (2) (k)
(770 SE2d 862) (2015).
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