Bowen v. Noel

Decision Date19 January 2022
Docket NumberS21A1133
Citation313 Ga. 92,868 S.E.2d 213
Parties BOWEN v. NOEL.
CourtGeorgia Supreme Court

Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant.

Ashleigh Bartkus Merchant, John B. Merchant, III, The Merchant Law Firm, P.C., 701 Whitlock Avenue Suite J43, Marietta, Georgia 30064, for Appellee.

Peterson, Justice.

Rodney Noel was granted habeas relief from his conviction for murdering nine-month-old Terrell Williams ("Terrell"). The habeas court held that Noel's appellate counsel provided ineffective assistance for two related reasons: (1) counsel failed to challenge the trial court's denial of Noel's right to impeach his intimate partner and Terrell's mother, Crystal Williams ("Williams"), using three prior violent acts by her, and (2) counsel failed to assert Noel's right to use these acts as proof that Williams, not Noel, killed Terrell. The State appeals.

We disagree with the habeas court that appellate counsel's performance was constitutionally ineffective. Noel's claim regarding alleged impeachment error fails because it was not preserved at trial and so could not have been successfully raised on appeal. And Noel has not shown that any deficiency of appellate counsel regarding proof of third-party guilt was prejudicial. We therefore reverse.

1. Background
(a) Noel is accused of murdering Terrell Williams.

According to trial testimony, in March 2007, Noel, Terrell, and Williams traveled to Atlanta from Chicago for the weekend, staying at a hotel. Shortly before this, there was an incident where Williams threw Terrell into his car seat, but when Terrell left Chicago, he appeared to be healthy. Early in the weekend he had a hurt lip, which Noel and Williams attributed to Terrell's car seat tipping over on the hotel floor while he was not strapped in. A doctor specializing in child protection testified that she found this explanation suspicious, but could not rule out the possibility that this injury was accidental.

Hotel housekeeper Laverne1 Pickett testified that the following Monday afternoon, she was cleaning the room next to Noel's. She heard a baby crying and a man repeatedly saying "shut up," then a thump, after which the noise stopped. She knocked on the door, and Noel answered. She looked past him into the room and saw Terrell in a car seat.

Noel attempted to cast doubt on Pickett's testimony. He testified that she never came to his door. He presented a copy of the time-card reflecting when Pickett clocked in and out for work, and that card indicated that Pickett may have left for the day before she claimed to have encountered Noel. However, the hotel's record keeper explained that the card did not necessarily show that Pickett had departed, and confirmed that Pickett was assigned to clean Noel's room and others on the floor that day and that Pickett initialed a form indicating that she cleaned that room. Noel also called his defense investigator, who testified that he spoke with Pickett. The investigator testified that Pickett told him Noel was dressed (which conflicted with another witness's testimony from the same timeframe) and that Pickett told the investigator she did not, in fact, hear a thump. In addition, Noel presented evidence that a different housekeeper reported hearing "unnatural" baby cries near Noel's room, but no other sounds, and that this housekeeper denied that Pickett ever mentioned what she saw when she went to the room.

Separately from Pickett's testimony, a hotel maintenance engineer testified that he saw Noel naked in the room's doorway (a paramedic also described Noel as undressed), panicking and shouting for help while crouching over Terrell. The engineer called 911 and instructed Noel in CPR. Police officers and paramedics arrived. Paramedics did not find anything in Terrell's mouth, although he had "a white substance" around it. When they asked Noel what happened, all he said in response was that Terrell "had some ice cream earlier." Terrell had no pulse or breath, and his eyes were fixed and dilated. Terrell was placed on life support at the hospital and soon died.

Williams told a hospital social worker, and testified at trial, that she never believed Noel hurt Terrell. According to the social worker, Williams "initially smiled and giggled often" while accompanying Terrell on his way to the hospital. Williams denied doing so. Noel's cousin also testified that she spoke by phone with Williams while Williams was at the hospital, and Williams seemed unconcerned about Terrell but very anxious about Noel. Hospital records did note that Williams cried "profusely" when she learned that Terrell sustained severe brain damage.

It was undisputed at trial that only Noel was in the room with Terrell immediately before Terrell began manifesting a medical emergency. Williams told police that she had put Terrell in his car seat so he could sleep, gone downstairs to do laundry, and upon returning, found Terrell unresponsive. She testified that Noel told her Terrell had choked while Noel was sleeping.

Noel told a paramedic he was in the shower when he heard Terrell choking and got out to help. But he later told a detective that when Williams went downstairs, he dozed off and awoke to the sound of Terrell choking. He then shook Terrell and tried to do CPR, put water on him in the shower,2 and held him in front of the air conditioner. Asked by a detective to demonstrate how he shook Terrell, Noel gave "a very physical shake." Noel testified that after none of this worked, he called for help. Noel soon told the detective, though, that the detective had misunderstood him and gave a different demonstration, indicating that he only lightly shook the car seat. At trial, Noel testified that he "jostled" either Terrell or the car seat holding him.

At trial, medical experts disagreed about the cause and timing of Terrell's medical event. It was undisputed that Terrell suffered a fatal "severe brain injury

" including bleeding and swelling. The only expert who testified about choking denied that choking could have caused Terrell's injuries. According to three State experts, Terrell's head injuries were consistent with having been violently shaken shortly before manifesting a medical emergency. However, the medical examiner attributed Terrell's death only to non-accidental traumatic head injuries generally, and could not make a determination about shaking as the specific cause. The defense's expert testified that Terrell's head injuries were consistent with being hit by a hand or fixed object – not with being shaken – and could have been inflicted up to 24 hours before Terrell became nonresponsive. He testified that Terrell's head injuries may not have been immediately visible or quickly incapacitating. Terrell also had some bruising on his buttocks and thigh, according to the defense expert and a State expert. (Additionally, while the medical examiner attributed the buttocks shading to a natural skin mark, he did note buttock abrasions and thigh bruising.) The defense expert indicated that the buttock bruising was from blunt force and could have been caused by squeezing or by being struck with a linear object, like a belt. The medical examiner also stated that a belt could have caused the thigh bruising. Two of Williams's belts were found in the hotel room, and Noel denied having any belts of his own with him. Another State expert disavowed being able to tell when this non-head bruising — which she did not personally see when examining Terrell — was caused.

(b) Noel tries to introduce Williams's three violent acts.

During the trial, Noel blamed Williams for Terrell's injuries and tried to present evidence of three prior violent acts Williams had committed in Illinois. In 2004, she struck a fellow high school student with a padlock and pleaded guilty to battery, receiving a one-year sentence. In 2007, she was charged with domestic battery for pushing her adult aunt to the ground; it is not clear whether this resulted in a conviction. In 2008 — between Noel's 2007 indictment and his 2009 trial in this case — Williams pleaded guilty to domestic battery with bodily harm, which Noel characterizes as the stabbing of an ex-boyfriend, and she was sentenced to 18 months of probation.

The State moved in limine to exclude evidence of these acts. Noel's counsel initially said that "the applicable statute" as to admissibility was former OCGA § 24-9-84.1, under which he claimed "any evidence" of crimes punishable by one year or more "can be introduced into the trial," and "what we're talking about here is impeachment material relevant to a State's witness."3 He continued that he wanted "to introduce certified copies of these documents into evidence to impeach [Williams] in the event she did not acknowledge the conduct." But counsel then stated, "I'm not offering this information to impeach her. I'm going to be asking her questions about the offenses for the purposes of showing her propensity for violence and inability to control her anger," adding that "nothing could be more germane" to his defense. Following a lengthy exchange, counsel concluded by disavowing any intention of impeaching Williams: "... I'm not seeking to impeach her. That's not the goal here. That's not what I need to do. I'm only asking the questions to establish her propensity for violence and inability to control her anger, which is absolutely relevant to the facts in this case." The trial court asked whether this was "just a question of relevance." Counsel agreed that it was, as he was just trying to show that the only other person who could have fatally injured Terrell "is a violent person who can't control her anger." The trial court barred the evidence as irrelevant and because "the probative value does not exceed the...

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