Allen v. State
| Decision Date | 01 February 2010 |
| Docket Number | No. A09A2107.,A09A2107. |
| Citation | 690 S.E.2d 492 |
| Parties | ALLEN v. The STATE. |
| Court | Georgia Court of Appeals |
Maurice G. Kenner, Decatur, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Clint C. Malcolm, Asst. Dist. Atty., for appellee.
Sean Garfield Allen appeals his convictions for aggravated battery, aggravated assault, and two counts of third degree cruelty to children. He contends that the trial court erred by allowing the jury to hear the recording of the 911 call made in connection with the underlying incident, by rejecting his claim of ineffective assistance of counsel, and by failing to merge the aggravated battery and aggravated assault counts for sentencing purposes. We find merit only in Allen's merger contention. Accordingly, we affirm Allen's conviction with respect to the cruelty to children counts, vacate the sentences imposed for the aggravated battery and aggravated assault counts, and remand for resentencing on the aggravated battery count.
This case arose from an altercation between Allen and his wife's former husband. On August 19, 2005, the former husband brought his two children home after visitation. The children were then nine and eleven years old and lived with their mother and Allen. The state's evidence showed that, while concealing a golf club behind his back, Allen approached the former husband, who was standing at the end of the residential driveway. The state's evidence further showed that, after a brief discussion, Allen used the golf club to strike the man on his abdomen, then on his head. The man fell to the ground, bleeding profusely from his head. Allen got into his car and sped away. The two children, having witnessed Allen attack their father with the golf club, screamed for their mother, who called 911 for help.
The former husband had sustained a skull fracture and brain injury, which caused him to suffer, inter alia, severe communicative and cognitive impairment; significant physical impairment, including temporarily being unable to use one of his arms and having to re-learn how to walk; and ongoing, chronic seizures.
1. Allen contends that the trial court erred by allowing the jury to hear the recording made of the 911 call, arguing that the recording was not properly authenticated.
The state called as a witness the 911 operator who had taken the emergency call. She testified that she had listened to the recording before coming to court, that she had identified her voice therein, and that the recording was a fair and accurate representation of the call without any alterations or deletions.1 The trial court did not abuse its discretion in allowing the recording to be heard by the jurors.2
2. Allen contends that the trial court erred by rejecting his claim of ineffective assistance of counsel. To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington,3 that counsel's performance was deficient and that the deficient performance was prejudicial to his defense.4 Both the performance and the prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact.5 In reviewing a trial court's determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court's factual findings unless they are clearly erroneous; we review the trial court's legal conclusions de novo.6
(a) Allen asserts that his trial lawyer failed to communicate to him a plea offer from the state to serve five years in prison. At the motion for new trial hearing, Allen recounted that his trial lawyer had persisted: "We can win this." But Allen's trial lawyer gave a different account at the motion hearing. She testified that she had communicated the plea offer to Allen and that Allen had strongly rejected the offer, professing his innocence. "The trial court was authorized to believe counsel's testimony over Allen's."7 Thus, Allen has demonstrated no deficient performance in connection with the plea offer.
(b) Allen argues that his trial lawyer performed deficiently by failing to inquire into his mental health during the trial. Allen points out that, immediately after his trial testimony, he stepped down from the witness stand and prayed aloud. The record shows that, when Allen did so, the defense had rested, and the jury had withdrawn from the courtroom. Allen asserts that his conduct was unusual and should have indicated to his lawyer that he was not competent to stand trial.8
3. Allen contends that the trial court should have merged for sentencing purposes the aggravated assault and aggravated battery offenses.
At issue here is whether the aggravated assault constituted a lesser included offense, as a matter of fact, of the aggravated battery. One may not be "convicted of more than one crime where one crime is included in another."12 OCGA § 16-1-6(1) states that a crime is "included in a crime charged in the indictment or accusation" when "it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the other crime." In Drinkard v. Walker,13 the Supreme Court of Georgia disapproved the "actual evidence" test for determining when one offense is included in another under OCGA § 16-1-6(1) and adopted in its stead the "required evidence" test.14 Accordingly, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."15
Applying this test to the circumstances of this case, we find that the aggravated assault was a lesser included offense of the aggravated battery. Although the aggravated battery statutory provision required proof that the victim was deprived of a member of his body,16 which was not a required showing under the applicable aggravated assault provision,17 the latter provision did not require proof of any fact that was not also required to prove the aggravated battery, as that offense could have been proved under the indictment in this case.18
Contesting merger, the state points out that, with respect to the aggravated assault count, it alleged in the indictment and adduced evidence at trial that Allen had inflicted two strikes upon the victim—whereas the aggravated battery count rested upon only the strike to the head and not upon the strike to the victim's chest. Notwithstanding these circumstances, however, the applicable aggravated assault provision did not require proof that, in addition to striking the victim's head, Allen struck the victim's chest.19
Because OCGA § 16-5-21(a)(2) requires proof of only one act, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded. Moreover, when an indictment alleges that an aggravated assault was committed by two means, the State need prove only one of the two acts constituting the crime of aggravated assault to sustain the conviction.20
Contrary to the state's position, there is no showing that the applicable aggravated assault "provision required proof of a fact which the other did not."21 Thus, in this case, the "required evidence" test was not met.
The state indicted Allen for aggravated assault based upon his golf club attack upon the victim. The state proved that crime by showing that Allen inflicted "a series of strikes in quick succession."22 The record demonstrates that Allen's conduct establishing the aggravated assault count—striking his wife's former husband with a golf club— was "the same act or transaction constituting a violation"23 of the aggravated battery statutory provision—maliciously causing bodily harm to another.24 Because the aggravated assault was therefore a lesser included offense of the aggravated battery, the trial court erred by not merging them for sentencing purposes.25
Judgment affirmed in part and vacated in part, and case remanded with direction.
To continue reading
Request your trial
-
Rodriguez-Nova v. State
...of one party to the recorded conversation. See Hudson v. State, 273 Ga. 124, 127(3), 538 S.E.2d 751 (2000) ; Allen v. State, 302 Ga.App. 190, 191(1), 690 S.E.2d 492 (2010). In this case, the 911 operator reviewed the recording, identified it as a fair and accurate reproduction of the call w......
-
Thomas v. the State.
...287 Ga. 881, 885(4), 700 S.E.2d 394 (2010).(Punctuation omitted.) Ledford, 289 Ga. at 72(1), 709 S.E.2d 239. Allen v. State, 302 Ga.App. 190, 193(3), 690 S.E.2d 492 (2010). See also Gonzales, 298 Ga.App. at 823, 681 S.E.2d 248 (explaining when the required evidence test is used to determine......
-
Riggs v. State, A12A1662.
...demonstrated no deficient performance in connection with the plea offer.” (Footnote and punctuation omitted.) Allen v. State, 302 Ga.App. 190, 192(2)(a), 690 S.E.2d 492 (2010). (d) Riggs argues that trial counsel was ineffective for hiding and destroying several photographs that would have ......
-
Riggs v. Warden
...demonstrated no deficient performance in connection with the plea offer." (Footnote and punctuation omitted.) Allen v. State, 302 Ga.App. 190, 192(2)(a), 690 S.E.2d 492 (2010). Riggs, 319 Ga. App. at 195. Riggs has failed to show that this ruling is unreasonable within the meaning of 28 U.S......