Camphor v. State

• Decision Date: 01 May 2000
• Docket Number: No. S00A0106.,S00A0106.
• Parties: CAMPHOR v. The STATE.
• Court: Georgia Supreme Court

529 S.E.2d 121

272 Ga. 408

CAMPHOR v. The STATE.

No. S00A0106.

Supreme Court of Georgia.

May 1, 2000.

Brian Steel, Atlanta, for appellant.

J. Tom Morgan III, District Attorney, Robert M. Coker, Assistant District Attorney, Thurbert E. Baker, Attorney General, Adam M. Hames, Assistant Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee. THOMPSON, Justice.

Zhukov Camphor was convicted by a jury of malice murder, felony murder, burglary and aggravated stalking in connection with the shooting death of his former wife's boyfriend, Tony Leslie. He appeals from the denial of his motion for new trial.¹ Finding no error, we affirm.

On the night of the shooting, Camphor appeared at the home of his ex-wife, Valecia Henderson, in violation of a court order which had been issued one month earlier prohibiting his presence there. He observed a pick-up truck bearing the personal license plate "Tony L." parked in the driveway next to Henderson's vehicle. Armed with a loaded pistol in his waistband, Camphor entered the house asking for Tony. Although Henderson reminded Camphor that he had been ordered to stay away from her residence and repeatedly demanded that he leave, he ignored her and walked through the house in search of the victim. Henderson followed Camphor to her bedroom where Tony Leslie was repairing a VCR. She watched as Camphor drew his pistol and shot and killed the unarmed victim.

Camphor's five children were also in the home at the time. On previous occasions, they had heard their father threaten to shoot Leslie "between the eyes" because of concerns that he would take his place in the family. Upon leaving the Henderson residence, Camphor reminded his daughter, "I told you I was going to do it." He surrendered to authorities two days later.

Forensic evidence established that three bullets had entered Leslie's body through the head, chest, and back. The medical examiner opined that the first bullet was fired into the victim's back.

Camphor testified at trial that he shot Leslie but did so in self-defense because he thought Leslie was about to shoot him. The defense presented expert testimony that at the time of the shooting Camphor was in need of dialysis and he suffered from post traumatic stress disorder, which caused the impaired perception that he was acting in self-defense.

1. The evidence was sufficient for a rational trier of fact to have found Camphor guilty beyond a reasonable doubt of the offenses for which he was convicted, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Bond issues

2. In a prior proceeding, Camphor was arrested on a warrant brought by Henderson for criminal damage to property after he spray painted her car. He appeared pro se at a bond hearing in that matter and was released on a signature bond pending a preliminary hearing. The preliminary hearing took place in June 1997, one month prior to Leslie's death. Camphor again appeared without counsel at that proceeding, where he was ordered as a condition of his bond to stay away from his ex-wife and her residence. The aggravated stalking charge in the present indictment is predicated on a violation of that condition of the bond. See OCGA § 16-5-91.²

Camphor attempts in this proceeding to challenge the validity of the "stay away" condition of the June 1997 bond on several bases. Pretermitting whether the issuance of the pretrial bond may be challenged in a separate proceeding after the time for appeal has expired, we find no error.³

(a) During the 1997 bond hearing the court carefully advised Camphor of his right to a preliminary hearing and his right to counsel; that he could have a preliminary hearing on that date or have the case reset to give him the opportunity to retain counsel; and that a public defender could be appointed to represent him at the preliminary hearing if he could not afford to hire counsel. Camphor executed a written waiver of counsel; however, the preliminary hearing was continued at the State's request. When Camphor appeared on the date scheduled for the preliminary hearing, the court noted that he was without counsel. The court again advised Camphor of the nature of the proceeding and offered him the option to proceed pro se or forego the hearing. Camphor opted to go forward without counsel. Under the circumstances, we reject the assertion that his waiver of counsel was not knowingly and intelligently made. See generally Wayne v. State, 269 Ga. 36(2), 495 S.E.2d 34 (1998).

(b) Relying on Hood v. Carsten, 267 Ga. 579, 481 S.E.2d 525 (1997), Camphor claims his due process rights were violated when the court modified the pretrial bond to include the stay away provision without prior notice. In Hood we held that minimal due process is required prior to the revocation of bond "[b]ecause a bond revocation involves the deprivation of one's liberty." Id. at 581, 481 S.E.2d 525. Unlike Hood, Camphor was not deprived of his freedom and he had an opportunity to be heard before his bond was modified. The court merely imposed a reasonable restriction as a condition of pretrial release.

"When a defendant is charged with a violent crime against a specific victim, it is within the trial court's inherent powers to require that the defendant avoid any contact with the victim as a condition of remaining free pending trial." Clarke v. State, 228 Ga.App. 219, 220(1), 491 S.E.2d 450 (1997). The condition imposed in this case was appropriate and reasonable under the facts and did not constitute an abuse of the court's discretion.

Severance

3. Camphor contends that the trial court erred in denying his motion to sever the aggravated stalking charge from the other indicted offenses for purposes of trial. He submits that severance was required because the evidence offered to convict him of aggravated stalking was "wholly unrelated" to the remaining counts of the indictment and was unduly prejudicial. We disagree.

Where two or more offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single plan or scheme, severance is discretionary with the court. Gober v. State, 247 Ga. 652, 653(1), 278 S.E.2d 386 (1981). The act of aggravated stalking formed part of a single continuing plan to gain unlawful entrance to the Henderson home, culminating in the death of Tony Leslie. Thus, the evidence used to convict Camphor of aggravated stalking was inextricably bound to the essential elements of the burglary charge as well as intent and bent of mind for the murder charges. Watson v. State, 176 Ga. App. 610(2), 337 S.E.2d 54 (1985).

Taking into consideration the number of offenses charged and the complexity of the evidence to be offered, we conclude that the trier of fact was able to distinguish the evidence and apply the law intelligently as to each offense. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975). Accordingly, the trial court did not abuse its discretion in refusing to sever the aggravated stalking charge. Id.

Evidence of prior difficulties

4. The trial court did not err in admitting evidence of prior difficulties between Camphor and the victim without pretrial notification to the defense.

Prior difficulties are not subject to the notice requirements of USCR 31. Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998). The mere fact that Wall had not been decided at the time of [Camphor's] trial is of no consequence. See Smith v. State, 270 Ga. 123, 124(2), 508 S.E.2d 173 (1998) (applying Wall retroactively).

Laney v. State, 271 Ga. 194(4), 515 S.E.2d 610 (1999).

Nor does the retroactive application of the ruling in Wall violate ex post facto constitutional requirements. In Love v. State, 271 Ga. 398, 399(1), 517 S.E.2d 53 (1999), we determined that a statute which does "nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed," did not violate ex post facto requirements. Likewise, our ruling in Wall merely allowed for the admissibility of prior difficulty evidence without the requisite pretrial notice. Accordingly, we find no ex post facto violation. Love, supra.

Assistance of trial counsel

5. Camphor contends that he was denied effective assistance of trial counsel in several respects. To prevail on this claim, Camphor must establish that counsel's performance was deficient and but for that deficiency, there is a reasonable likelihood that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id., 466 U.S. at 690, 104 S.Ct. 2052.

(a) It is asserted that trial counsel should have objected to admission of the stay away order and resultant evidence. Counsel testified at the hearing on the motion for new trial that he did not object because he did not believe that the stay away order was erroneous. In light of our determination that the evidence was properly admitted, any such objection would have been fruitless.

(b) Nor was counsel ineffective in failing to interview and call as a witness Officer Mitchell who was among the first investigators on the scene. It had been noted in Officer Mitchell's report that Henderson stated she was in the laundry room when Camphor entered the house and asked the victim's whereabouts. Camphor asserts that this information would have discredited Henderson's testimony at trial that she followed him to the bedroom and observed the shooting.

Trial counsel explained that he made the tactical decision not to call Officer Mitchell because he feared that Mitchell might clarify his report in a way that would harm Camphor's defense, and because the information...