Travis Betterson v. State

FOURTH DIVISION
RICKMAN, P. J.,
MERCIER and PINSON, 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
January 12, 2022
In the Court of Appeals of Georgia
A21A1406. BETTERSON v. THE STATE.
MERCIER, Judge.
Following a jury trial, Travis Betterson was convicted of kidnapping with
bodily injury, hijacking a motor vehicle, aggravated battery, and three counts of
possession of a firearm by a convicted felon during the commission of a crime.
Betterson appeals, arguing that the trial court erred in admitting certain evidence and
in refusing to strike three jurors for cause. He also argues that the case should be
remanded for a hearing on his ineffective assistance of counsel claim. For reasons that
follow, we affirm.
Viewed favorably to the jury’s verdict, see Davenport v. State, 309 Ga. 385,
386 (846 SE2d 83) (2020), the evidence shows that Betterson and the victim were
romantically involved. Betterson often used the victim’s car and typically picked her
up at the end of her overnight shift as a registered nurse at a hospital in Savannah.
On the morning of June 9, 2016, Betterson was 30 minutes late picking the
victim up from work. When Betterson arrived in the victim’s car, she expressed
irritation, and Betterson explained that he had overslept. Betterson drove them to a
nearby gas station, where he stopped for gas. They argued at the gas station, and
Betterson became agitated. The victim requested that Betterson take her to his
parents’ house so that she could rest. She also asked him for her car keys, but he
refused to give them to her and grew angrier as they stood outside the car. Betterson
struck the victim several times in the face with his fist. He then told her that he would
drive her to his parents’ house. As the victim entered the passenger seat of her car,
she noticed that Betterson had a gun in his pocket, and he pulled his shirt to the side
so that she could clearly see it.
Betterson yelled angrily at the victim while driving away from the gas station,
and he did not take her to his parents’ house. Instead, he called another woman on his
phone and stated that if the woman “wanted him to, he’d just kill [the victim].” He
then pointed to a marshy area and told the victim: “I’m going to leave you [there] and
ain’t nobody going to find you.” Betterson stopped the car on the side of the road two
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times and hit her in the face. When he stopped for a third time, the victim grabbed the
car keys from the ignition, but Betterson hit her and recovered the keys. He then
dragged her from the car by her hair, kicked her, spit on her, and left her on the
ground before driving away. A bystander called the police, and the victim was
transported by ambulance to the hospital, where she received treatment for multiple
injuries, including a fractured bone near her left eye.
Based on the evidence presented, the jury found Betterson guilty of kidnapping
with bodily injury, hijacking a motor vehicle, aggravated battery, and felon in
possession of a firearm during the commission of a crime (three counts). The trial
court denied Betterson’s motion for new trial, and this appeal followed.
1. Betterson first argues that the trial court erred in admitting evidence of
ammunition found when the police searched his parents’ residence. Inside a closet in
the house, officers found a 9-millimeter handgun that the victim identified as the
weapon Betterson had with him on the date of the incident. They also recovered “a
random [7.62-millimeter] round, which is a round . . . most commonly see[n] in larger
[AK-47] rifles, mostly used by police and the military . . . [o]r gun enthusiasts.”
Prior to trial, Betterson moved in limine to exclude evidence of the 7.62-
millimeter round as irrelevant and prejudicial. Although not completely clear from the
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record, it appears that the trial court denied the motion, and the evidence ultimately
was admitted. Betterson now argues that the trial court should have excluded the
evidence because it was irrelevant to the issues at trial and “did nothing more than
suggest that [he] was a violent person — particularly where the bullet was connected
to an AK-47 assault rifle.”
The record before us does not disclose the basis for the trial court’s ruling on
Betterson’s motion in limine. But even if the court erred in admitting evidence of the
ammunition, any error was harmless and does not require reversal. See Davenport,
supra at 389 (2). “A nonconstitutional error is harmless if it is highly probable that
the error did not contribute to the verdict.” Id. (citation and punctuation omitted).
Although the State offered evidence that the lone 7.62-millimeter round was found
at the home of Betterson’s parents, it made no effort to link that ammunition to
Betterson or the incident at issue here. On the contrary, the evidence showed that
Betterson possessed a 9-millimeter handgun during the crimes for which he was
indicted and that the “random [7.62-millimeter] round” fit a larger type of rifle.
Moreover, Betterson did not live in the house where the ammunition was found.
Given the lack of evidence connecting Betterson to this ammunition, as well
as the victim’s testimony identifying Betterson as her attacker and describing the
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handgun in his possession, we find it highly unlikely that admission of the 7.62-
millimeter round influenced the jury’s verdict. Accordingly, no reversible error
occurred. See Davenport, supra at 389-390 (2); see also Davidson v. State, 304 Ga.
460, 465 (3) (819 SE2d 452) (2018) (“We are unconvinced that any error in the
admission of [an alleged co-conspirator’s] statement had an effect on the outcome of
the trial.”).
2. Next, Betterson argues that the trial court erred in refusing to strike for cause
three jurors who, in his view, indicated during voir dire that they could not be fair and
impartial at trial. A party moving to strike a potential juror for cause must show that
the juror “holds an opinion so fixed and definite that the juror will be unable to set the
opinion aside and decide the case based upon the evidence or the court’s charge upon
the evidence.” Palmer v. State, 330 Ga. App. 679, 683 (4) (769 SE2d 107) (2015)
(citation and punctuation omitted). The trial court exercises its discretion in
determining whether to strike a juror for cause, and we will not set aside that
determination absent a manifest abuse of discretion. See id.Voir dire was not transcribed, and the jurors’ responses to the questions posed
by the trial court and counsel during voir dire are not in the record. But the transcript
contains the argument presented by Betterson’s counsel as to why the three jurors
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should be excused for cause, as well as the trial court’s oral ruling on the motion to
strike. Counsel asserted that each juror had described prior experiences that would
hinder his or her ability to fairly and impartially decide the case. The trial court,
however, rejected this argument, concluding from the jurors’ demeanor and responses
that they would be able to follow the court’s instructions and objectively evaluate the
evidence presented.
Betterson has not demonstrated any abuse of discretion here. Without a
complete transcript, we cannot review the jurors’ actual responses to the questions
posed by counsel and the court. And we have no basis for rejecting the trial court’s
determination that these jurors ultimately indicated an ability to decide the case based
on the evidence and the court’s instructions. This claim of error, therefore, lacks
merit. See Palmer, supra at 683-684 (4); see also Bryant v. State, 270 Ga. 266, 271
n.18 (4) (507 SE2d 451) (1998) (“If counsel raise issues on appeal relating to voir
dire, they also must transcribe the voir dire in order for there to be an appellate
review, as an appellant carries the burden of showing error by the record.”).
3. Finally, Betterson requests that we remand the case to the trial court for a
hearing on his ineffective assistance of counsel claim. The record shows that new
counsel represented Betterson during the motion for new trial proceedings, and the
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new attorney raised an ineffective assistance of counsel claim through an amendment
to Betterson’s motion for new trial. Prior to the new trial hearing, however, the
attorney withdrew the amended motion and the ineffective assistance claim. Counsel
explained at the new trial hearing that she had investigated Betterson’s ineffective
assistance allegations and determined that the claim was not viable. She noted that
Betterson disagreed with her decision and wanted to pursue the claim, and the trial
court allowed him to describe his allegations, which related to specific evidence that
he asserted trial counsel should have presented at trial. The trial court informed
Betterson that his attorney had withdrawn the ineffective assistance claim and that he
could probably raise the issue “down the road.” It then denied the motion for new trial
without addressing ineffective assistance.
Betterson now argues through new appellate counsel that trial counsel and his
motion-for-new-trial counsel provided ineffective assistance by (1) not presenting
certain evidence at trial, and (2) failing to raise the ineffective assistance claim in his
motion for new trial. But it is axiomatic that “a claim of ineffectiveness of trial
counsel must be asserted at the earliest practicable moment.” Glover v. State, 266 Ga.
183, 184 (2) (465 SE2d 659) (1996) (citation and punctuation omitted). Although
Betterson had the opportunity to challenge the effectiveness of trial counsel at the
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new trial stage, he failed to do so. His claim with respect to trial counsel, therefore,
has been waived. See Elkins v. State, 306 Ga. 351, 361 (4) (a) (830 SE2d 217) (2019);
Glover, supra.Moreover, any claim that the attorney who represented Betterson at the motion
for new trial performed deficiently by not raising an ineffective assistance claim is
also procedurally barred. As our Supreme Court has explained:
We do not allow a defendant to resuscitate a specific claim of ineffective assistance
of trial counsel that was not raised at the motion for new trial stage by recasting the
claim on appeal as one of ineffective assistance of motion-for-new-trial counsel for
failing to raise the specific claim of trial counsel’s ineffectiveness.
Elkins, supra at 362 (4) (b). See also Williams v. State, 270 Ga. App. 371, 372 (2)
(606 SE2d 594) (2004) (“A defendant cannot resuscitate claims of ineffectiveness
that are procedurally barred simply by bootstrapping them to a claim of
ineffectiveness of appellate counsel.”) (citation and punctuation omitted). If Betterson
“wishes to pursue a claim that his motion-for-new-trial counsel was ineffective in this
regard, he must do so through a petition for a writ of habeas corpus.” Elkins, supra.
Judgment affirmed. Rickman, C. J., and Pinson, J., concur.
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