Stewart v. State ( 1994 )

Benham, Justice.

Appellant was convicted of malice murder in connection with the 1989 stabbing/strangulation death of his girl friend.¹ The State presented evidence that appellant and the victim had had a violen! relationship; that appellant had threatened to kill the victim foui days before she was murdered; that he was searching for her in the early morning hours of the day she was killed; that he was the persor with whom the victim was last seen alive; and that he had scratcl marks on his neck when he was picked up for questioning at the home of the victim’s mother the day following the murder. The evidence was sufficient for a rational trier of fact to determine that appellan! was guilty beyond a reasonable doubt of malice murder. Jackson v Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Prior to trial, the State filed notices of its intent to presen! evidence of allegedly similar transactions, i.e., appellant’s indictmen! for murder and guilty plea to voluntary manslaughter, and appellant’s guilty plea to charges of disorderly conduct and fighting that arose from an incident involving the victim of the murder. See Uniform Superior Court Rule 31.3 (B). The trial court conducted a hearing anc reserved ruling. Id. After the jury was sworn, the trial court announced that the State could not use the voluntary manslaughtei conviction but could use the disorderly and fighting convictions, since they were evidence of prior difficulties between appellant and the victim. The State then informed the court that it intended to presen! evidence that appellant threatened to kill the victim four days prioi to the victim’s death. In response to appellant’s objection that USCR Rule 31.3 (B) required that a pre-trial hearing be held, the trial court ruled that evidence of prior difficulties between the victim and appellant was admissible without the necessity of a pre-trial evidentiary hearing. During trial, the State presented witnesses who each testified that appellant had threatened to kill the victim. Appellant takes issue with the trial court’s decision that USCR 31.3 (B) was not applicable to the evidence concerning the purported threat.

USCR 31 applies to acts or occurrences which are categorized as prior difficulties between the victim and the defendant, Loggins v. State, 260 Ga. 1 (2) (388 SE2d 675) (1990). Before evidence of prior difficulties or quarrels, even those occurring recently, may be presented at trial, the trial court must conduct a hearing pursuant to USCR 31.3 (B), and determine, as to each prior difficulty, that (1) there is sufficient evidence that the prior difficulty occurred; (2) that the evidence is offered for an appropriate purpose; and (3) that there is a sufficient probative connection between the crime charged and the prior difficulty to justify admission of the prior difficulty into evidence. Maxwell v. State, 262 Ga. 73 (2) (b) (414 SE2d 470) (1992). Compliance with USCR 31.1 and 31.3 for all prior acts involving the accused and the victim is mandatory, but non-compliance will be excused as harmless error if the evidence against the accused is overwhelming. Barrett v. State, 263 Ga. 533, 535 (436 SE2d 480) (1993). In light of the circumstantial nature of the evidence adduced against appellant, as well as the testimony of the investigating officer that he continued to suspect as the killer the witness who was the last person to admit being with the victim, it cannot be said that the evidence against appellant was overwhelming.

The State suggests that USCR 31.3 (E) exempts the evidence of the threat from USCR 31.3 (B) if the threat is viewed as part of a single, continuous transaction immediately related in time and place to the charge being tried. See Grace v. State, 262 Ga. 746 (425 SE2d 865) (1993). In Maxwell, however, we observed that the hearing requirements of USCR 31.3 (B) applied to recent difficulties occurring between the accused and the victim up until the victim’s death. See also Giles v. State, 211 Ga. App. 594 (440 SE2d 48) (1993) (where USCR 31.1 and 31.3 (B) were followed regarding prior difficulties that occurred earlier the night of the crime). In light of the above, we cannot say that a threat allegedly made four days before the killing, was immediately related in time and place to the killing so as to be considered part of a single continuous transaction with the killing.

While the failure to have a Maxwell hearing was error, we are unable to conclude at this time that the error requires a new trial. Instead, we remand the case to the trial court to conduct a post-trial Maxwell hearing. See McNeal v. State, 263 Ga. 397 (4) (435 SE2d 47) (1993) (case remanded for post-trial Tribble in camera review); Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993) (case remanded for post-trial Batson hearing); Crawford v. State, 240 Ga. 321 (1) (240 SE2d 824) (1977) (case remanded for post-trial hearing on admissibility of confession); Thornton v. State, 238 Ga. 160 (2) (231 SE2d 729) (1977) (case remanded for post-trial hearing on merits of Brady motion regarding informant’s identity). Should the trial court determine that the State’s evidence concerning appellant’s alleged threat against the victim does not comport with the standards enunciated in Maxwell, a new trial would be warranted. If, on the other hand, the trial court concludes that the evidence is admissible under Maxwell, a new trial is unnecessary.

2. Appellant asserts as error the trial court’s grant of the State’s motion in limine prohibiting appellant from making any reference to the results of a polygraph examination of a witness for the State. While a jury may be apprised that a polygraph examination has been administered to a witness to explain the conduct of the witness (New-berry v. State, 260 Ga. 416 (3) (395 SE2d 813) (1990)) as long as n< inference regarding the results of the test is raised (Carr v. State, 259 Ga. 318 (1) (380 SE2d 700) (1989); Wilson v. State, 254 Ga. 473, 477 (330 SE2d 364) (1985)), the results of a polygraph examination art admissible only upon an express stipulation of the parties. State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). In the absence of tht required stipulation, the trial court did not err when it proscribed ap pellant from referring to the results of a polygraph exam.

3. Appellant takes issue with the admission of the testimony of í witness who had previously undergone hypnosis in connection witl his recollection of events involving this case. We note that “in Geor gia, the testimony of a previously hypnotized witness will not be con sidered corrupt and inadmissible . . . .” Walraven v. State, 255 Ga. 276, 282 (336 SE2d 798) (1985). Due to his failure to object at trial t( the admission of the challenged testimony, appellant waived furthei appellate review of the issue.

4. The trial court’s failure to charge the jury on implied malice was not harmful to appellant since the jury was instructed that i1 must find actual malice before it could find appellant guilty of malice murder.

5. Appellant testified that he did not see the victim the day she was killed, and that he did not stab the victim. Since there was nc evidence to support an instruction on the law of voluntary manslaughter, the trial court’s failure to instruct the jury on the subjed was not error. Wright v. State, 253 Ga. 1 (4) (316 SE2d 445) (1984)

6. Appellant next contends that he received ineffective assistance of counsel at trial. Having asserted such an allegation, appellant hac the burden to establish that his attorney’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that, but for the unprofessional errors, the result oi the proceeding would have been different. Smith v. State, 262 Ga. 480, 481 (422 SE2d 173) (1992). In so doing, appellant must overcome the strong presumption that trial counsel’s performance “ ‘falls within the wide range of reasonable professional assistance. . . .’” Johnson v. State, 262 Ga. 545 (1) (422 SE2d 659) (1992).

Appellant alleges that trial counsel was inadequately prepared, did not reasonably investigate the case, did not communicate with appellant, and conducted an inadequate voir dire. Trial counsel testified at the hearing and described himself as a veteran murder defense attorney who had rendered effective assistance of counsel to appellant He reported that he had met with appellant and his family several times, that the State had turned its entire file over to him, and that a police investigator had freely discussed the case with him. While members of the venire were not qualified as to their relationship to James Dawson, a State’s witness who was also a suspect in the case, no harm resulted since Dawson’s half-sister who served as an alternate juror did not discuss the case with the jury. Trial counsel explained that he had not called as witnesses several people whose names were given him by appellant’s family because the potential witnesses suffered credibility problems or had nothing significant to say. Other shortcomings of counsel enumerated by appellant did not constitute error (see, e.g., Divisions 2, 3, and 5, supra), or constituted trial strategy or tactics. The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel. Van Alstine v. State, 263 Ga. 1, 4-5 (426 SE2d 360) (1993). We affirm the trial court’s conclusion that appellant did not establish ineffective assistance of counsel.

Judgment affirmed and case remanded with direction.

All the Justices concur, except Hunt, P. J., Hunstein and Carley, JJ., who dissent.

1 The crime occurred in the early morning hours of September 29, 1989, and appellant was arrested later that day. He was indicted on January 9, 1990, and the trial took place on October 16-17, 1990, immediately after which appellant was sentenced to life imprisonment. His motion for new trial was filed on November 15,1990, amended on April 2 and September 6,1991, and denied on June 25,1993. The case was orally argued before this court on October