SLAUGHTER v. the STATE. ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS
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 18, 2018
In the Court of Appeals of Georgia
A18A0163. SLAUGHTER v. THE STATE.
BETHEL, Judge.
Jerome Slaughter appeals the denial of his motion for a new trial following his
convictions for one count each of rape, incest, and child molestation. Slaughter argues
that the trial court erred because the State failed to prove venue as to all charges
beyond a reasonable doubt, the jury was erroneously charged on venue, and he
received ineffective assistance. For the reasons that follow, we affirm.
“On appeal from a criminal conviction, the evidence is viewed in the light most
favorable to the verdict, and the defendant no longer enjoys the presumption of
innocence.” State v. Robinson, 275 Ga. App. 117, 117 (619 SE2d 806) (2005)
(citation omitted). So viewed, the record shows that the victim, K. S., lived with her
mother and saw her father, Slaughter, on weekends. K. S. testified that beginning
when she was eight years old, her father would touch her private parts and have
sexual intercourse with her, sometimes physically restraining her. These assaults
occurred in DeKalb and Fulton county. The abuse continued for many years through
the time K. S. turned twelve and reached sixth grade. K. S.’s three-year-old sister, T.
S., also demonstrated signs of abuse. For instance, while showering with K. S., T. S.
attempted to touch K. S.’s private parts. When asked who had showed T. S. how to
do such a thing, T. S. responded “My daddy did.” K. S. eventually disclosed the abuse
to her aunt, and then her mother. A physical examination of K. S. revealed that she
had contracted a sexually transmitted infection. Slaughter was indicted on one count
each of rape, child molestation, and incest. A jury found Slaughter guilty of all
charges. Slaughter filed a series of motions for a new trial, which the trial court
denied, and this appeal followed.
1. Slaughter first argues that the State failed to prove venue in Fulton County
for each of the charges beyond a reasonable doubt and that his motion for directed
verdict and for a new trial should have been granted on these grounds. We disagree.
Our Georgia Constitution requires that venue in all criminal cases must
be laid in the county in which the crime was allegedly committed. Venue
is a jurisdictional fact, and an essential element in proving that one is
guilty of the crime charged. Like every other material allegation in the
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indictment, venue must be proved by the prosecution beyond a
reasonable doubt. Proof of venue is a part of the State’s case, and the
State’s failure to prove venue beyond a reasonable doubt renders the
verdict contrary to law, without a sufficient evidentiary basis, and
warrants reversal.
Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000) (footnotes and
citations omitted). The State may use direct or circumstantial evidence to meet its
burden. Id. at 902-903 (2).
While K. S. testified that her father first began abusing her while he lived with
her aunt (who resided in DeKalb County), K. S. testified that the abuse continued to
her father’s residence that he shared with his then-girlfriend. A detective testified that
her father’s residence was “646 Abner Street Southwest, Atlanta,” which he testified
was located in Fulton County.
Slaughter states that the detective’s testimony as to his address was a mistake,
as his correct address was actually “646 Atwood Street.” Slaughter argues that the
detective’s mistake in identifying Slaughter’s specific street address means that there
is no evidence supporting venue. Slaughter’s argument is incorrect. “This is not a
case where a crime scene was described but its location left unspecified, or where a
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street address alone was offered as proof of venue without reference to a city or
county.” Schofield v. State, 261 Ga. App. 70, 71 (582 SE2d 11) (2003) (emphasis
added). Rather, the detective testified that the crime scene was in Atlanta and in
Fulton County. And another witness testified as to the correct street address for
Slaughter. We note both that Slaughter could have explored this alleged conflict in
the evidence in his cross-examination of the detective, “and also that he was free to
argue the significance of the alleged conflict to the jury in closing. Any conflict in the
evidence created by a misstatement of the address was resolved by the jury . . . in
favor of venue in Fulton County.” Id. at 71 (citation omitted). Therefore, the trial
court did not err in denying Slaughter’s motion for directed verdict and motion for a
new trial on these grounds.
2. Slaughter next argues that the trial court committed plain error in charging
the jury on venue because it included in its instruction language that was inapplicable
to the case. More specifically, Slaughter objects to the portion of the jury instruction
that provided: “ . . . and a prosecution in any case in which it cannot be determined
in what county the crime was committed, venue is proper and may be proved in any
county in which the evidence shows beyond a reasonable doubt that it might have
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been committed . . . .” The State concedes this portion of the jury instruction was
inapplicable.
Slaughter concedes that he did not object to this instruction at trial, and
therefore we review the instruction for plain error. See Givens v. State, 294 Ga. 264,
266 (2) (751 SE2d 778) (2013). “Thus, we must consider whether the instruction was
erroneous, whether it was obviously so, and whether it likely affected the outcome of
the proceedings.” Id. (citation omitted).
“As a general rule, a trial court does not err when it charges a Code section in
its entirety, even though some part of that section may be inapplicable to the
allegations of the indictment and the evidence presented at trial. In such
circumstances, error will be found only where it appears that the inapplicable part of
the charged statute either misled the jury or erroneously affected the verdict.”
Hernandez-Garcia v. State, 322 Ga. App. 455, 460 (2) (745 SE2d 706) (2013)
(citations omitted). Therefore, for the jury charge at issue to constitute reversible
error, there must be a reasonable possibility that, as a result of the charge, the jury
convicted Slaughter of the charged offenses in a manner not alleged in the indictment.
See id. at 460-461 (2).
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Here, the trial court instructed the jury that venue in Fulton County was a
jurisdictional fact that had to be “proved by the State beyond a reasonable doubt as
to each crime charged in the indictment just as any element of the offense.” Further,
the State introduced testimony from a detective that established that Slaughter’s
residence was in Fulton County and other testimonial evidence established
Slaughter’s correct street address in Fulton County. Because the charge required the
jury to find beyond a reasonable doubt that venue was in Fulton County, which the
jury could do based on the evidence presented at trial, the extraneous instruction did
not likely affect the outcome of the proceedings.
3. Lastly, Slaughter argues that he received ineffective assistance at trial
because his counsel failed to file a special demurrer seeking more definite dates in the
indictment, failed to object during trial to the testimony regarding T. S.’s behavior
and comment in the shower with K. S., and failed to challenge venue.
To succeed on an ineffective assistance claim, a criminal defendant must
demonstrate both that his trial counsel’s performance was deficient and
that there is a reasonable probability that the trial result would have been
different if not for the deficient performance. When reviewing an
ineffective assistance claim, we accept the trial court’s factual findings
and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.
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Tiller v. State, 314 Ga. App. 472, 476 (4) (724 SE2d 397) (2012) (citations omitted).
(a) Slaughter contends that trial counsel was ineffective for failing to file a
special demurrer seeking more definite dates in the indictment because Slaughter was
incarcerated for some of the period alleged in the indictment. We disagree.
A special demurrer objects merely to the form of an indictment or seeks more
information and must be raised before pleading to the indictment. See Chapman v.
State, 318 Ga. App. 514, 516 (1) (a) (733 SE2d 848) (2012). Here, the indictment
stated a range of dates for each of the charges as being from “the 6th of February,
2007 and the 31st day of December, 2011, the exact date unknown to the Grand
Jurors.” At the motion for new trial hearing, Slaughter’s trial attorney testified that
he saw no need to file a special demurrer because he thought it would be clear to the
jury that Slaughter did not commit the offenses during the time he was incarcerated.
Slaughter’s trial counsel stated that he made the dates that Slaughter was incarcerated
clear to the jury. This testimony demonstrates that trial counsel’s failure to seek
greater specificity in the indictment was a strategic decision made after consideration
of the likelihood of success. Counsel’s calculation was not based on legal error,1 and
1
“[I]f a timely special demurrer is granted, the trial court quashes the
indictment. However, the quashing of an indictment merely bars trial on the flawed
indictment; it does not bar the State from reindicting the defendant.” Chapman, 318
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such strategic decisions do not amount to deficient performance. See Allen v. State,
318 Ga. App. 531, 533 (1) (734 SE2d 260) (2012). Accordingly, this enumeration
fails.
(b) Slaughter argues next that he received ineffective assistance when his trial
counsel failed to make a hearsay objection to K. S.’s testimony regarding her little
sister T. S.’s behavior in the shower. We disagree.
At trial, K. S. testified that when she was taking a shower with T.S., her three-
year-old sister, T. S. attempted to touch K. S.’s private parts. When asked who had
showed T. S. how to do such a thing, T. S. responded “My daddy did.” Trial counsel
testified at the motion for new trial hearing that he did not see the need to file a
pretrial motion or object to this testimony because he did not find it to be that harmful
when considered in light of the other overwhelming evidence against Slaughter. “The
decision of whether to interpose certain objections is a matter of trial strategy and
tactics. Trial tactics and strategy, no matter how mistaken in 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.” Henry
Ga. App. at 517 (1) (a). Thus, even if Slaughter’s attorney had filed a demurrer, it
would not have prevented the State from reindicting and trying Slaughter. See id.8
v. State, 316 Ga. App. 132, 134 (2) (729 SE2d 429) (2012) (citation omitted). In light
of the circumstances of this case and the other evidence against Slaughter, we do not
deem trial counsel’s strategy to be patently unreasonable, and thus find this
enumeration to be without merit. Moreover, we find no reasonable probability that
the jury’s verdict would have been impacted by the exclusion of this evidence.
(c) Finally, Slaughter argues that he received ineffective assistance at trial
when his counsel failed to challenge venue. However, Slaughter’s trial counsel
testified at the motion for a new trial hearing that he believed that the State had
successfully established venue. As explained above in Division 1, trial counsel was
correct in this assessment. Thus, trial counsel had no grounds to challenge venue, and
the “[f]ailure to make a meritless objection cannot be evidence of ineffective
assistance.” Graham v. State, 251 Ga. App. 395, 398 (2) (d) (554 SE2d 528) (2001).
This enumeration is without merit.
Judgment affirmed. Ellington, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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