Bester v. State

• Decision Date: 18 November 2013
• Docket Number: No. S13A1192.,S13A1192.
• Parties: BESTER v. The STATE.
• Court: Georgia Supreme Court

294 Ga. 195

751 S.E.2d 360

BESTER

v.The STATE.

No. S13A1192.

Supreme Court of Georgia.

Nov. 18, 2013.

Roy W. Copeland, Copeland & Haugabrook, Valdosta, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Atlanta, Richard Lowery Perryman, III, Dist. Atty., Robert Alan Rogers, Asst. Dist. Atty., Adel, for appellee.

HUNSTEIN, Justice.

Appellant Rashad Bester appeals his convictions for malice murder and other crimes relating to the strangulation death of Shawna Webber. ¹ On appeal, Bester claims that the trial court erred in denying his claim that his trial counsel provided ineffective assistance and his claim that the prosecutor violated his equal protection rights by the use of a peremptory strike in selecting the jury. We affirm Bester's convictions for malice murder and sodomy, but vacate his conviction and sentence for aggravated assault, because the conviction for that offense merged with his malice murder conviction.

1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed that about 12:15 a.m. on October 26, 2008, Bester enlisted the help of a friend, Maurice Sims, to look for Bester's cell phone along the side of McCranie Street in Atkinson County. Bester told Sims that he had dropped the phone there earlier that night when he had stopped to go to the bathroom. In looking for Bester's phone, Sims saw legs under some bushes and told Bester. Bester did not act surprised, and when Sims said they needed to report it to authorities, Bester said that they should not because his cell phone, which they did not find, was near there. Sims reported the body the next morning. That day, the police discovered the victim's body in a ditch along the side of McCranie Street. Bester's cell phone and glasses were found about 12 feet from the victim's body; sperm found in the victim's rectum was matched to Bester through DNA testing; and tire tracks and shoe prints found at the crime scene matched the tread on Bester's car and shoes found in it. In sum, the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Bester was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, the malice murder and aggravated assault counts of the indictment were predicated on Bester strangling the victim, and because there is no evidence that the victim suffered a non-fatal injury followed by a deliberate interval before the fatal strangulation, the conviction and sentence for aggravated assault must be vacated. See Alvelo v. State, 290 Ga. 609(2), 724 S.E.2d 377 (2012).

2. Bester asserts that he received ineffective assistance of trial counsel. To prevail on this claim, he must show that his counsel's performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “This burden, although not impossible to carry, is a heavy one.” Young v. State, 292 Ga. 443, 445(3), 738 S.E.2d 575 (2013). If an appellant fails “to satisfy either the ‘deficient performance’ or the ‘prejudice’ prong of the Strickland test, this Court is not required to examine the other.” Sifuentes v. State, 293 Ga. 441, 445(4), 746 S.E.2d 127 (2013).

(a) Bester contends that trial counsel was ineffective in failing to challenge four prospective jurors for cause on the ground that they knew one of the potential witnesses for the State. We disagree.

“ ‘A juror's knowledge of, or relationship with, a witness, attorney, or party is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused.’ ” Coe v. State, 293 Ga. 233, 236(2), 748 S.E.2d 824 (2013) (citation omitted). After the four prospective jurors indicated that they knew the witness in question, the prosecutor asked them whether they “would have a problem putting that friendship or knowledge of him aside and base your verdict on what comes out [in the courtroom], anybody have a problem.” No prospective juror answered that they would have such a problem, and there is no evidence in the record that any of the four prospective jurors held a fixed and definite opinion of Bester's guilt based on their friendship with that one witness (who did not testify at trial). Accordingly, if trial counsel had moved the trial court to excuse any of these jurors for cause, the trial court would have acted well within its discretion in denying that motion. See id. (“ ‘Whether to strike a juror for cause lies within the sound discretion of the trial judge.’ ”). “The failure of [Bester's] trial counsel to make a motion that the court was authorized to deny does not establish ineffective assistance by that counsel.” Billings v. State, 293 Ga. 99, 107(7), 745 S.E.2d 583 (2013).

(b) Bester contends that trial counsel was ineffective in failing to move to strike one prospective juror for cause who said that one of his best friends had adopted one of the victim's children and a second prospective juror who said that his brother-in-law had adopted two of her children. However, when trial counsel asked these two jurors whether the adoptions would affect their ability to be a fair juror, they both said that it would not. In light of these responses and the lack of any other evidence in the record that these two jurors held a fixed and definite opinion of Bester's guilt, the trial court would have acted well within its discretion in denying a motion to strike those two prospective jurors for cause. See Coe, 293 Ga. at 236, 748 S.E.2d 824. Accordingly, trial counsel did not perform deficiently by failing to make such a motion. See Billings, 293 Ga. at 107, 745 S.E.2d 583.

(c) Bester contends that trial counsel was ineffective in failing to file a motion in limine to preclude the State from introducing evidence as a similar transaction that he raped a former girlfriend at a hotel in February 2008. At trial, although the victim acknowledged that she spoke with a police officer at the hotel in February 2008 and that she was upset, she denied that Bester had raped her. The responding police officer, however, testified that the victim had patches of hair missing from her head, that she was bloody and very upset, that the victim told her that she and Bester were having sex and Bester started getting rough, and that she told him “no” several times, but he would not stop.

Bester now contends that trial counsel was ineffective in failing to file a motion in limine to preclude evidence of the alleged rape on the ground that the victim denied that Bester raped her. Trial counsel, however, did not provide deficient performance by failing to file a motion in limine. The State had the burden to prove the admissibility of the similar transaction at a hearing held for that purpose. See Uniform Superior Court Rule 31.3(B); Johnson v. State, 292 Ga. 22(2), 733 S.E.2d 736 (2012). Here, the trial court held a similar transaction hearing at which trial counsel argued that evidence of the incident should not be admitted because the victim denied that she had been raped. Thus, trial counsel in fact raised the argument that Bester now says that he should have raised, and trial counsel did not perform deficiently by failing to file a redundant motion in limine to assert the same ground he had already raised at the similar transaction hearing.

Moreover, “ ‘[t]he decision to admit similar transaction evidence ... is within the trial court's discretion and will not be disturbed absent an abuse of discretion.’ ” Matthews v. State, 294 Ga. 50, 52(2)(a), 751 S.E.2d 78, 2013 WL 5878175, at *2 (2)(a) (Case No. S13A1170, decided Nov. 4, 2013). The victim's denial that the rape occurred goes to the weight of this evidence, not its admissibility. See Lewis v. State, 275 Ga.App. 41(2)(c), 619 S.E.2d 699 (2005). And the victim's prior inconsistent statements to the police officer who responded to the hotel were admissible as substantive evidence. See Bryant v. State, 288 Ga. 876(8)(b), 708 S.E.2d 362 (2011). Thus, even if Bester's trial counsel had filed a motion in limine to challenge the admissibility of the alleged rape, the trial court would have acted within its discretion in denying the motion, and trial counsel did not perform deficiently by failing to make such a motion. See Billings, 293 Ga. at 107, 745 S.E.2d 583.

(d) Bester next contends that trial counsel was ineffective in failing to request any jury charges. However, in his motion for new trial and at the hearing on the motion for new trial, Bester failed to point to any deficiency in the trial court's charge or to any charge that trial counsel should have requested that was not covered by the trial court's jury charge. Bester's merits brief suffers from the same shortcoming. Bester therefore has offered nothing “ ‘more than mere speculation that, absent the counsel's alleged error [ ], a different result probably would have occurred at trial.’ ” Baker v. State, 293...