Cattrina Crider v. State ( 2020 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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 29, 2020
In the Court of Appeals of Georgia
A20A0527. CRIDER v. THE STATE.
GOBEIL, Judge.
A jury found Cattrina Crider guilty of one count of aggravated assault – family
violence, three counts of aggravated battery – family violence, and two counts of
possession of a firearm during the commission of a felony, based on her pointing a
firearm at and shooting Arnold Kerlin, her boyfriend at the time, in the stomach.
Crider appeals from her judgment of conviction and the denial of her motion for new
trial, asserting that: (1) trial counsel was ineffective for four distinct reasons; (2) the
trial court erred by refusing to instruct the jury on self-defense; and (3) the trial court
erred at sentencing by refusing to merge two of her convictions. Crider also filed a
supplemental brief asking this Court to consider the cumulative effect of counsel’s
errors in addition to the trial court’s failure to give the jury charge on self-defense.
For the reasons set forth below, we affirm.
On appeal from a criminal conviction, the evidence must be viewed in
the light most favorable to support the verdict, and the defendant no
longer enjoys the presumption of innocence; moreover, an appellate
court determines evidence sufficiency and does not weigh the evidence
or determine witness credibility.
Williams v. State, 333 Ga. App. 879, 879 (777 SE2d 711) (2015) (citation and
punctuation omitted).
Thus viewed in the light most favorable to the verdict, the record shows that
Kerlin and Crider were in a romantic relationship and living together in December
2014. Not long after Crider moved into Kerlin’s apartment, Kerlin began to see “red
flags” in Crider’s behavior, such as severe mood swings and alcohol abuse. Crider
and Kerlin both drank regularly during the relationship. The relationship devolved,
and Crider began to binge drink and would become violent, including an incident
where she punched Kerlin in the mouth. When this happened, Kerlin would leave the
apartment. At some point, Kerlin told Crider that he wanted her to move out of the
apartment when the lease ended, which made Crider angry.
2
On December 6, 2014, Crider began drinking early in the morning. Kerlin was
watching football and drinking beer that afternoon; he estimated that he drank three
or four beers over the course of a few hours. Crider continued drinking heavily
throughout the day. Around 9 p.m. that evening, Crider began to argue with Kerlin,
and Kerlin moved into the bedroom and shut and locked the door to get away from
her. Crider kicked the door open, and Kerlin decided to leave the apartment. As he
began to collect his things, he noticed that his wallet, keys, and cell phone were not
in their normal location. Kerlin believed that Crider had taken them, as she had done
in the past.
Kerlin left the bedroom to look for his keys in his coat, which was located in
the living room. When he walked back into the bedroom, Crider was kneeling on the
floor of the bedroom, with a gun drawn, pointed at Kerlin. Kerlin knew that Crider
owned a firearm, but he had never seen her with it in the past. Kerlin did not take her
seriously at first, laughed at her, and asked: “[Y]ou’re going to shoot me so I can’t
leave?” Kerlin had a gun of his own that he kept under his mattress, although it was
not loaded.1 Kerlin reached down, picked up his unloaded gun, and asked: “Are we
1
Kerlin kept the gun’s magazine in a separate pouch on his side of the bed. He
testified that Crider knew that he kept his gun separate from the ammunition.
3
going to have a shootout now?” He then put his gun on the dresser, telling Crider that
she was being ridiculous.
Kerlin “stood there for a minute[]” and asked Crider to give him his keys so
that he could leave. Crider did not answer, she “just kept pointing the gun at [Kerlin]”
and “kept following [him] around with it.” Kerlin went to walk around Crider, to get
to his closet, and Crider “put the gun up to [his] stomach and mumbled something
along of the lines of you’re not going anywhere.” Kerlin went to push the gun away,
and he heard a “bang” and “knew the gun had gone off.” Kerlin did not feel the pain
from the gunshot initially, but then he looked down and saw the gunshot wound in
his stomach. Crider was immediately upset by what had happened, and fell to the
floor with the gun still in her hand. Kerlin began to yell for help and made it out his
front door, where he saw his neighbor.
The neighbor, who heard “a help-me kind of a noise[,]” saw Kerlin standing
outside the apartment, holding his abdomen and explaining that he had been shot. The
neighbor called 911 The officer who responded to the scene found Kerlin with a
gunshot wound in his stomach. The officer then saw Crider, whom he described as
“hysterical” and “completely out of it, zoned out, and . . . kind of incoherent.” The
officer believed that she was intoxicated, and he smelled alcohol on her person.
4
Crider told the officer that the shooting was an accident and that Kerlin had pulled
the trigger. She also told the officer that Kerlin had grabbed her by the hair and held
her down and hurt her head, although she declined medical attention.
The bullet caused injuries to Kerlin’s stomach, liver, intestines, and colon.
Kerlin later was diagnosed with post-traumatic stress disorder and manic depressive
disorder, and is no longer able to work as a result of the incident.
Based on this information, Crider was indicted for one count of aggravated
assault – family violence (Count 1), three counts of aggravated battery – family
violence (Counts 2, 3, and 4), and two counts of possession of a firearm during the
commission of a felony (Counts 5 and 6).
Before trial, the State filed a notice of its intent to introduce evidence of
another family violence incident that occurred between Crider and her ex-husband,
Bart Beasley, pursuant to OCGA § 24-4-404 (b) and OCGA § 24-4-403. At the
hearing, Beasley testified about the incident, which occurred in February 2011, during
which Crider “attacked [him].” Crider had consumed a large amount of alcohol, and
she followed him around the house, insulting him. Beasley went to use the restroom,
and Crider flung the door open and punched him in the face. Beasley wrestled her to
the ground, and attempted to retreat, but Crider began to attack him again. Beasley
5
pushed her off of him, and she fell and hit her head on the counter. The confrontation
continued, and Crider took Beasley’s keys and wallet. Eventually, police arrived at
the house and spoke to the couple, but neither was arrested.
Beasley testified that it was common in their marriage for Crider to get
intoxicated and physically attack him. During these incidents, Crider had never
pointed a gun at him, but she had always owned guns, and had retrieved a gun during
arguments. He also explained that she previously had taken away his keys and wallet
to keep him from leaving the house.
At the 404 (b) hearing, trial counsel successfully argued that the other acts
testified to by Beasley were not relevant to prove lack of accident or mistake, and
there was a risk that the jury would improperly consider the evidence as highly
prejudicial propensity evidence. The trial court ruled further in Crider’s favor that the
State could not use the other-act evidence in its case-in-chief to prove her intent.
However, the trial court ruled that if Crider put forward a self-defense theory at trial,2
then the State could introduce this evidence in rebuttal, as it would then become
2
Trial counsel explained at the 404 (b) hearing that she might be pursuing a
self-defense theory for trial, and the trial court noted that it would not find a prima
facie showing of self-defense absent Crider’s testimony.
6
relevant to whether Crider was the primary aggressor and therefore not justified in
shooting Kerlin.
At trial, during opening statements, trial counsel explained that the shooting
was “a terrible, unfortunate accident, plain and simple.” Counsel described Crider’s
version of events – she and Kerlin were arguing, he became angry, she went into the
bedroom to gather some things to leave the house, Kerlin came into the bedroom with
his gun drawn, Crider grabbed her gun to defend herself, Kerlin grabbed for her gun,
and it accidently discharged. Defense counsel also told the jurors that they would hear
testimony from Crider about what happened that night, and they would see evidence
that Crider’s hand was bruised during the struggle with Kerlin for the gun.
Several witnesses testified for the State, including Kerlin. Kerlin’s son also
testified that he had witnessed Crider being violent towards his father during their
relationship, especially after she had been drinking. After the State rested, the trial
court inquired as to whether Crider intended to testify on her own behalf, and defense
counsel replied that Crider had not yet decided and wanted to wait until after the other
defense witnesses had testified.
Ultimately, the only witness called by the defense was a firearms expert, who
testified that there was a shell casing from a bullet that was jammed in Crider’s gun,
7
which was consistent with someone having their hand on top of the gun as it was
fired. Trial counsel also admitted into evidence via stipulation a fire department
incident report, which stated that Kerlin reported at the scene that he and Crider were
“wrestling” when “the gun went off accidentally at point blank range.”
Just before the defense rested, the parties discussed whether Crider had made
a prima facie showing of a self-defense theory. The State argued that she had not, but
if the court ruled that she had, it intended to call Crider’s ex-husband Beasley in
rebuttal to testify about the incidents where she had been drunk and violent in her
previous relationship. Trial counsel contended that Crider had made a showing that
would allow the jury to consider the self-defense question. The court stated that it had
not seen evidence that would support a justification defense, and Crider had not
opened the door that would allow the State to call Beasley as a rebuttal witness. The
court reserved its final ruling as to instructing the jury on self-defense, but indicated
that it was leaning towards not doing so. The defense then rested without Crider
testifying in her own defense.
Over trial counsel’s objection, the trial court ruled that it would not instruct the
jury on justification/self-defense. Consistent with this ruling, defense counsel did not
make an explicit self-defense argument in closing, focusing instead on the accident
8
defense, although trial counsel did stress that Kerlin also possessed a gun during the
incident and reached for her gun as well. She explained in detail that the firearms
expert’s testimony showed clearly that Kerlin’s hand was on the top of Crider’s gun
when it accidentally went off.
Based on this evidence, the jury found Crider guilty of all charges. At
sentencing, the court found that the three aggravated battery convictions merged into
a single conviction and the two firearms convictions merged into a single conviction.
The court, however, did not merge the aggravated assault conviction with the
remaining aggravated battery conviction, although it ran the sentences concurrently.
The trial court imposed a total sentence of 25 years with 8 to serve in confinement
and the remainder on probation.
Crider filed a motion for new trial, which the trial court denied after a hearing.
This appeal followed.
1. In related claims of error, Crider contends that she received ineffective
assistance of trial counsel. To prevail on any of these claims, Crider must prove both
that her lawyer’s performance was deficient and that she suffered prejudice as a result
of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984). “If [Crider] cannot meet [her] burden of proving
9
either prong of the Strickland test, then we need not examine the other prong.”
Causey v. State, 319 Ga. App. 841, 842 (738 SE2d 672) (2013). “The trial court’s
determination that an accused has not been denied effective assistance of counsel will
be affirmed on appeal unless that determination is clearly erroneous.” Johnson v.
State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994) (citations and punctuation
omitted).
With respect to the first prong of the Strickland test, deficient performance,
Crider must show that her attorney performed her duties at trial in an objectively
unreasonable way, considering all the circumstances, and in light of prevailing
professional norms. Strickland, 466 U. S. at 687-688 (III) (A).With respect to the
second prong of Strickland, to demonstrate that she suffered prejudice as a result of
trial counsel’s performance, Crider must prove “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.” Strickland, 466 U. S. at 694 (III) (B). “This burden, though not
impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d
98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt
2574, 91 LE2d 305) (1986).
10
(a) Crider first asserts that trial counsel “seriously mishandl[ed]” the
justification defense at trial. She contends that “[t]here was an abundance of evidence
that would have supported [] Crider’s self-defense theory” at trial, which counsel
failed to introduce, including: (1) a report from a doctor that Crider’s actions could
have been the result of sustained domestic violence or battered person’s syndrome;
(2) jail records showing that Crider’s hand was bruised on the night she was arrested;
(3) testimony from Crider’s family members that they spoke on the phone with her
shortly before the incident, and she did not seem “angry, noticeably drunk, or sad[,]”;
and (4) reputation evidence from another family member that Crider was a peaceful
person. She argues that she established prejudice, as this evidence could have resulted
in a different outcome at trial.
This claim clearly implicates defense counsel’s strategic choices concerning
what defense to focus on and what evidence to present. See Hendrix v. State, 298 Ga.
60, 62 (2) (a) (779 SE2d 322) (2015) (“An attorney’s decision about which defense
to present is a question of trial strategy.”) (citation omitted). “Unless the choice of
strategy is objectively unreasonable, such that no competent trial counsel would have
pursued such a course, we will not second-guess counsel’s decisions in this regard.”
Id. (citation omitted).
11
Here, counsel’s choice of trial strategy was reasonable given the circumstances.
At the motion for new trial hearing, trial counsel explained that she intended to put
forward both a self-defense theory and an accidental shooting theory at trial,
depending on what the evidence showed and whether Crider chose to testify. Indeed,
counsel presented both theories in her opening statement, and cross-examined Kerlin
about his being angry with Crider, drawing his own gun during the argument,
approaching her while she had the gun drawn, and ultimately grabbing her gun. Thus,
counsel made efforts to present both theories of defense at trial.
However, what Crider does not seem to recognize are the negative
consequences expected had counsel pursued a different trial strategy. The trial court
had made clear that if a self-defense theory was advanced, the court would allow the
State in rebuttal to offer the other-acts evidence it otherwise had prohibited. Thus, had
defense counsel been more emphatic in her presentation of the self-defense theory,
the jury would have heard Crider’s ex-husband’s testimony that Crider had been
drunk, aggressive, and violent towards another domestic partner in the past. This
evidence also would have been made admissible on cross-examination if defense
counsel opened the door and put Crider’s character at issue through family members.
See Montgomery v. State, 350 Ga. App. 244, 246-248 (1) (828 SE2d 620) (2019)
12
(noting that the State may cross-examine a defendant’s character witness about
specific instances that are relevant to the trait about which the witness testified on
direct). Counsel specifically noted her concern about this kind of evidence at the
motion for new trial hearing, showing that she was weighing her options based on the
circumstances. Thus it was not unreasonable for counsel to attempt to avoid
presenting evidence that would have convinced the trial court to admit the other-acts
evidence. See Hendrix, 298 Ga. at 61 (1) (a).
Ultimately, if Crider realistically wanted to pursue a justification defense, she
would have testified in her own defense. The trial court had explained this to Crider
during the pre-trial 404 (b) hearing. On appeal, Crider includes her description of
events for the night in question. However, because Crider did not testify, there was
not evidence presented at the trial to support her allegation that Kerlin drew his gun
before she did or made any overt violent threats or actions that would have caused her
to fear for her life.3 Nor could there be, as there were only two witnesses to the
shooting, and Kerlin was the only one who testified. See Hunter v. State, 281 Ga. 693,
694-695 (2) (642 SE2d 668) (2007) (self-defense theory was not supported by the
3
See Ford v. State, 306 Ga. App. 606, 610 (20 (703 SE2d 71) (2010) (“facts
alleged in briefs but unsupported by evidence in the record cannot be considered on
appeal”) (citation and punctuation omitted).
13
evidence, where defendant did not testify and there was no evidence that defendant
had to shoot victim to avoid death or great bodily injury); Brunson v. State, 293 Ga.
226, 227-228 (2) (744 SE2d 695) (2013) (self-defense theory was not supported by
the evidence, where victim moved toward defendant and reached for defendant’s gun
hand only in response to defendant’s threatening victim with a gun).
Because Crider had not made her decision as to whether to testify when the
trial began, counsel was forced to walk a fine line – she wanted to avoid the other-act
evidence coming in to prevent a “character assault” by the State. Counsel also
attempted to lay the foundation for a justification defense throughout the State’s case,
in the event that Crider chose to testify and the defense pivoted toward the self-
defense theory. Given these circumstances, we conclude that the trial court did not
clearly err in determining that counsel was not deficient with respect to her
presentation of Crider’s defense at trial. See Boyd v. State, 275 Ga. 772, 776 (3) (573
SE2d 52) (2002) (in assessing whether counsel’s performance was reasonable, “[w]e
ask only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted”) (citation omitted).
As to the specific evidence pointed to by Crider not already addressed, Roberta
Ballard, Ph. D., a licensed clinical psychologist evaluated Crider after the trial.
14
Ballard testified at the motion for new trial hearing that Crider reported being the
victim of domestic violence throughout her life, including in her relationship with
Kerlin, and it was not uncommon for victims to retaliate with violence. She also
testified that Crider exhibited symptoms consistent with a battered person, who might
lash out at her abuser. Crider argues that defense counsel was deficient for failing to
get Crider evaluated before trial, and presenting this kind of evidence to the jury.
Crider relies heavily on McLaughlin v. State, 338 Ga. App. 1, 13-14 (1) (b) (789
SE2d 247) (2016), in which we held that trial counsel was ineffective for failing to
seek a continuance of the defendant’s trial to investigate and obtain expert evidence
regarding battered person syndrome.4
Crider’s trial counsel explained at the motion for new trial hearing that she was
aware of Crider’s past of abusive relationships, but she did not believe that Crider
needed to be evaluated for a battered person syndrome defense. As explained above,
if defense counsel had attempted to put forward this kind of evidence, the trial court
likely would permit the State to introduce evidence that Crider had been the primary
aggressor in a past relationship. Thus, the jury would have heard evidence
4
Our holding in McLaughlin was based on counsel’s mistaken belief that it was
too late in the proceedings to seek a continuance, rather than any strategic decision
by counsel concerning the battered person defense. 338 Ga. App. at 13-14 (1) (b).
15
contradicting Crider’s report of domestic abuse. Moreover, counsel’s actions were
again constrained by Crider’s choice not to testify, as battered person syndrome is
only a viable defense “to support a defendant’s claim of justification.” McLaughlin,
338 Ga. App. at 10 (1) (a).
Additionally, unlike the defendant in McLaughlin, Crider had a reasonable
alternative defense to pursue in this case – accident. Indeed, counsel put forward
evidence that supported the theory that Crider retrieved her gun only as a precaution,
and it fired only when Kerlin approached her and attempted to move the gun. The fact
that the jury did not believe this theory does not mean that counsel’s actions were
unreasonable. See Deleon-Alvarez v. State, 324 Ga. App. 694, 712 (9) (751 SE2d
497) (2013) (“[T]he fact that the trial counsel chose to try the case in the manner in
which it was tried and made certain difficult decisions regarding the defense tactics
to be employed with which appellant and [her] present counsel now disagree, does
not require a finding that the representation below was so inadequate as to amount to
a denial of effective assistance of counsel.”) (citation and punctuation omitted). Thus,
we conclude that counsel’s actions were not so unreasonable as to amount to
ineffective assistance of counsel.
16
Finally, we do not agree that the other evidence highlighted by Crider supports
a reversal of the trial court’s ruling on her motion for new trial. Trial counsel testified
at the motion for new trial hearing that she did not recall admitting into evidence a
photograph showing that Crider’s hand was bruised on the night of the incident.
Crider argues that this photograph would have supported the theory that Kerlin
wrestled with her for the gun, justifying her shooting of him. However, defense
counsel presented other evidence of this theory, by having the firearms expert testify
that someone’s hand was on top of the gun when it fired, and by introducing the fire
department incident report, which stated that Kerlin had reported at the scene that he
was “wrestling” with Crider when the gun discharged.
Further, Crider argues that counsel should have called her family members as
defense witnesses. At the motion for new trial hearing, Crider’s sister-in-law testified
that she spoke to Crider on the evening of the shooting, and she did not notice
anything “out of the ordinary” about Crider’s demeanor, which she described as calm
and “normal.” Crider’s brother was also on the phone call, but he was driving so he
was not “much into the conversation.” He also believed that Crider’s demeanor was
normal. When asked about why she did not call these witnesses at trial, trial counsel
repeated that she was concerned about putting Crider’s character at issue, which
17
would allow the State to introduce evidence of Crider’s character for not being
peaceful. Given the circumstances described above, we conclude that this decision
was not objectively unreasonable.
Additionally, at trial, Kerlin testified as to Crider’s emotional state with him
just before the shooting, which was more relevant to the issue of Crider’s guilt than
her emotional state when talking to family members before her argument with Kerlin.
Thus, Crider has failed to show that this testimony was reasonably likely to have
changed the outcome of her trial.
(b) Closely related to her first claim, Crider asserts that counsel failed to
properly advise her concerning her decision not to testify at trial. Specifically, Crider
asserts that she did not understand that she would lose her ability to advance a self-
defense theory without testifying. This claim is belied by the record.
“The decision whether or not to testify is a tactical one made by the defendant
[herself] after consultation with counsel. The choice of whether to testify is ultimately
a defendant’s.” Collins v. State, 300 Ga. App. 657, 661 (5) (686 SE2d 305) (2009)
(citation and punctuation omitted).
Trial counsel testified at the motion for new trial hearing that she had several
“very long conversations” with Crider about testifying, but ultimately left the decision
18
up to Crider. She also informed Crider about “what would happen if [Crider] did
testify versus what would happen if she didn’t testify.” This testimony is also
supported by trial counsel’s statement at trial that she “fully informed [Crider] of her
rights vis-a-vis the right to testify and what the jury instructions would be were she
not to testify.”
Additionally, at the 404 (b) hearing, the trial court had explained that it was
unlikely to allow a justification defense to go to the jury without Crider’s testimony.
And during the trial, just before the evidence closed, the trial court informed the
defense that it had not yet seen sufficient evidence to support a self-defense jury
instruction. Trial counsel then consulted with Crider, and upon returning, informed
the court that Crider would not be testifying. Thus, the record shows that Crider was
informed about the consequences of not testifying. Accordingly, we affirm the trial
court’s ruling that counsel was not deficient in this regard, as the record supports the
trial court’s conclusion that Crider made her own decision not to testify after being
advised of the consequences. See Collins, 300 Ga. App. at 661-662 (5) (defendant’s
claim that he was not adequately advised by counsel about his right to testify was
belied by counsel’s testimony at the motion for new trial hearing and by the trial
court’s discussion with defendant at trial); Felder v. State, 286 Ga. App. 271, 278
19
(648 SE2d 753) (2007) (counsel’s advice that defendant should not testify because
he would be vulnerable on cross-examination if he did was reasonable strategic
decision).
Relevant to this enumeration of error, Crider also claims that the trial court
improperly credited trial counsel’s testimony from the motion for new trial hearing.
Crider refers to a motion filed after the hearing in which she sought to re-open the
evidence. Crider alleged that she had evidence that contradicted some of trial
counsel’s testimony from the motion for new trial hearing. In its order denying
Crider’s motion to re-open the evidence, the trial court noted that it had forwarded the
motion to trial counsel because trial counsel was not included on Crider’s certificate
of service. The trial court inquired whether trial counsel wished for the evidence to
be re-opened, and she did not.
Crider argues that, based on this ex parte communication between the trial
court and trial counsel, we should not give any deference to the trial court’s
credibility determinations. However, as explained above, trial counsel’s testimony at
the motion for new trial hearing regarding her discussions with Crider about her
decision whether to testify are supported by the record, and thus we conclude that the
trial court’s decision to credit counsel’s testimony in this regard was not clearly
20
erroneous. See Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (an
appellate court is to “accept the trial court’s factual findings and determinations
regarding credibility unless they are clearly erroneous”) (citation omitted). We find
no reversible error on this issue.
(c) Crider next asserts that counsel was ineffective for failing to investigate the
State’s claim that she had been the primary aggressor in her previous marriage and
rebut such claim with court documents. Specifically, she asserts that the State’s threat
to introduce Beasley’s testimony about their prior domestic violence incidents was
hollow, as it could have been rebutted with evidence that would have showed that she
was not the primary aggressor in their marriage. Thus, Crider contends that such
evidence would have diminished the harm of Beasley’s testifying, and Crider could
have testified to her self-defense theory without concern that Beasley’s testimony
would greatly damage her defense.
However, although Crider argues that defense counsel could have uncovered
this evidence, including a temporary protection order (“TPO”) awarded to Crider
against Beasley, defense counsel testified at the motion for new trial hearing that
Crider gave her the file from her divorce and “[t]here was nothing in the file . . . that
would help” the defense. When asked if she was aware of Crider’s TPO against
21
Beasley, defense counsel could not recall, and stated that the TPO and other
protective order documents were not in the information given to her by Crider. Thus,
given defense counsel’s testimony that she was unaware of the additional information
concerning Beasley and that Crider did not supply trial counsel with this information,
the trial court’s finding of no ineffective assistance was not clearly erroneous. See
Gordon v. State, 252 Ga. App. 133, 135 (2) (555 SE2d 793) (2001) (“Counsel’s
actions are usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on such information.”)
(citation omitted).
(d) Crider also claims that counsel was ineffective for failing to impeach Kerlin
on three pieces of his testimony. First, she argues that Kerlin’s testimony that “he did
not drink to the point of excess” could have been impeached with a record of his 2007
DUI conviction. However, Crider does not cite to where in the record Kerlin made
such a statement. To the contrary, although Kerlin testified that he usually drank “in
moderation[,]” he also admitted that he drank regularly during the relationship and
was drinking on the day of the incident. On cross-examination, Kerlin again admitted
to regularly drinking beer and wine. On this issue, trial counsel explained that she did
22
question Kerlin about his drinking, but did not attempt to impeach him by using his
DUI conviction. Given the facts as actually testified to by Kerlin, we conclude that
counsel’s cross-examination strategy was not unreasonable. See Herdon v. State, 235
Ga. App. 258, 259 (509 SE2d 142) (1998) (noting that the extent of cross-
examination is “within the realm of trial tactics and strategy, and usually provide no
basis per se for a reversal of appellant’s conviction”) (citation and punctuation
omitted).
Second, Crider claims that Kerlin’s testimony that Crider “did not contribute
to the household expenses” could have been impeached by producing a check from
Crider to Kerlin for hundreds of dollars. Again, Crider provides no record citation for
the testimony she is contesting. During Kerlin’s cross-examination, he testified that
Crider did not have a job, and he was “pulling the financial weight in the
relationship.” However, these statements came in response to trial counsel’s questions
about Kerlin’s dissatisfaction with Crider as a partner, which trial counsel was
attempting to use as a way to argue that Kerlin started the argument that led to the
shooting, making him the primary instigator that night. This decision was an issue of
trial strategy, which we conclude was not unreasonable given the facts in this case.
23
Finally, Crider claims that Kerlin’s testimony that Crider was angry and drunk
on the night of the incident could have been impeached with testimony from Crider’s
family members that she was not drunk or angry earlier that day. As explained in
Division 1 (a) above, we conclude that Crider has failed to show that counsel’s
actions were objectively unreasonable, or that having her family members testify
about her mindset before the shooting would have changed the outcome of the trial.
Accordingly, we find no merit to this claim of ineffective assistance.
2. Crider next asserts that the trial court erred in refusing to instruct the jury on
self-defense. She argues that some evidence supported this jury instruction, including
Kerlin’s possession of weapons, the size disparity between Kerlin and herself, and
that he aggressively approached her that night demanding that she leave the house.
Additionally, Crider argues that, despite the trial court’s insistence that she testify to
support a self-defense jury instruction, such is not required in Georgia.
“To authorize a requested jury instruction, there need only be slight evidence
supporting the theory of the charge. Whether the evidence presented is sufficient to
authorize the giving of a charge is a question of law.” Garner v. State, 303 Ga. 788,
790 (2) (815 SE2d 36) (2018) (citation and punctuation omitted). “[A] person is
justified in using force which is intended or likely to cause death or great bodily harm
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only if he or she reasonably believes that such force is necessary to prevent death or
great bodily injury to himself or herself or a third person or to prevent the commission
of a forcible felony.” OCGA § 16-3-21 (a).
In this case, Crider “has pointed to no evidence to support a reasonable belief
that shooting the victim was necessary to defend [her]self . . . from any imminent use
of unlawful force.” Garner, 303 Ga. at 790 (2); see also Hunter, 281 Ga. at 694 (2)
(“To establish justification, a defendant must show the circumstances were such as
to excite the fears of a reasonable person that [her] safety was in danger.”) (citation
and punctuation omitted); Bruson v. State, 293 Ga. App. 226, 227-228 (2) (744 SE2d
695) (2013) (although a defendant is not required to testify in support of a
justification defense, trial court must look at evidence admitted at trial to determine
whether justification instruction is warranted). Although she and Kerlin were engaged
in an argument before the shooting, nothing in the record suggests that Crider was in
danger of imminent violence when she retrieved her gun and pointed it at the victim.
Nor was there evidence that she was in danger of imminent violence when she fired
the gun. Although Kerlin retrieved his unloaded firearm to defend himself from
Crider’s initial assault, the record supports that his response to her was not aggressive
and that he did not point his weapon at her.
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To the contrary, there was evidence presented that Crider was the initial
aggressor on the night of the shooting, as Kerlin testified that she retrieved her gun
when he stepped out of the bedroom, and she pointed it at him when he reentered the
room. Accordingly, where the evidence shows that the defendant is the aggressor, no
self-defense instruction is required. Garner, 303 Ga. at 790-791 (2). See also OCGA
§ 16-3-21 (b) (3) (a person is not justified in using force if she “[w]as the aggressor
. . . unless [s]he withdraws from the encounter and effectively communicates to such
other person [her] intent to do so”). Thus, the trial court’s decision not to give a
justification instruction was not reversible error.
3. Crider also asserts that the trial court erred in refusing to merge Count 1, the
aggravated assault conviction, with Count 2, the aggravated battery conviction, as
there was no deliberate interval between the two criminal acts. We disagree.
“Whether offenses merge is a legal question, which we review de novo.”
Regent v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016) (citation omitted). To avoid
merger, “a deliberate interval must exist between the completion of one criminal act
and the start of a separate criminal act.” Id. (citation omitted).
Count 1 of Crider’s indictment charged her with one count of aggravated
assault, based on her pointing the firearm at Kerlin. Counts 2, 3, and 4 charged her
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with aggravated battery based on harm caused to Kerlin’s stomach, liver, and colon,
respectively, from the gunshot fired by Crider. As explained above, the trial court
ruled that the three aggravated battery convictions would merge into one conviction,
but that the aggravated assault conviction would not merge with the combined
aggravated battery conviction.
In Regent, we explained that aggravated assault and aggravated battery can
merge because, although the two offenses are established by proof of different facts,
an aggravated assault count can be considered to be included in an aggravated battery
count, when they are based on a “single criminal act[.]” 299 Ga. at 175-176; see also
OCGA § 16-1-6 (2) (providing that one crime is included in another, if that crime
charged differs from the other “only in the respect that a less serious injury or risk of
injury to the same person . . . suffices to establish its commission). However, the
crimes charged in Regent were based on one continuous criminal act, wherein the
defendant “straddled his girlfriend, slashed her throat and, almost immediately
thereafter . . . cut her again.” 299 Ga. at 174, 176.
The facts in Regent are distinguishable from the ones present here. At trial,
Kerlin testified that Crider pointed the gun at him for an extended period of time,
following him as he moved around the bedroom. They had a conversation, and Crider
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continued to follow him, before eventually aiming the gun at his stomach and firing
the weapon. These facts show that the aggravated assault was completed before the
battery took place. See OCGA § 16-5-21 (a) (2) (defining assault with a deadly
weapon); OCGA § 16-5-21 (k) (2015) (defining family violence aggravated assault).
Thus, there was a deliberate interval between Crider’s aggravated assault and her
aggravated battery. Compare Lowe v. State, 267 Ga. 410, 412 (1) (b) (478 SE2d 762)
(1996) (malice murder count did not merge with aggravated assault count because the
aggravated assault was completed, and there was an ensuing interval where defendant
walked around the car before aiming and firing fatal shot at victim), with Ingram v.
State, 279 Ga. 132, 133 (2) (610 SE2d 21) (2005) (where no deliberate interval exists
between assault and another criminal acts, assault conviction must merge with other
conviction).
4. Finally, Crider filed a supplemental brief citing the Supreme Court’s recent
decision in State v. Lane, __ Ga. __ (838 SE2d 808) (2020, which held that reviewing
court should consider collectively the prejudicial effect of trial court errors and
deficient performance by counsel – at least where those errors involve evidentiary
issues). Specifically, Crider asks us to consider the cumulative effect of counsel’s
errors. However, nothing in Lane has changed our analysis where we have found no
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examples of ineffective assistance of counsel. See __ Ga. __ (1), (4) (838 SE2d at
812-813, 817-818) (explaining that we will consider cumulative effect of counsel’s
errors when counsel was deficient in two distinct respects and the trial court
committed at least one evidentiary error). Accordingly, where Crider has failed to
show error, she has likewise failed to show cumulative error. Koonce v. State, 305 Ga.
671, 678 (2) (f) n.3 (827 SE2d 633) (2019).Thus, we conclude that the trial court did
not err in denying Crider’s motion for new trial.
Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.
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