Carl v. State, A98A1198.

• Decision Date: 20 August 1998
• Docket Number: No. A98A1198.,A98A1198.
• Citation: 234 Ga. App. 61,506 S.E.2d 207
• Parties: CARL v. The STATE.
• Court: Georgia Court of Appeals

506 S.E.2d 207

234 Ga. App. 61

CARL v. The STATE.

No. A98A1198.

Court of Appeals of Georgia.

August 20, 1998.

Certiorari Denied January 8, 1999.

Strongwater & Cherniak, Leeza R. Cherniak, Atlanta, for appellant.

James R. Osborne, District Attorney, for appellee. JOHNSON, Presiding Judge.

Richard John Carl, Jr. appeals his conviction of rape of a 14-year-old girl.

1. Carl contends that his motion for new trial should have been granted based on a claim of newly discovered evidence. We disagree.

A new trial should be granted due to newly discovered evidence when a defendant satisfies the six requirements of Timberlake v. State, 246 Ga. 488, 491(1), 271 S.E.2d 792 (1980). Among these requirements are that the evidence has come to defendant's knowledge since trial, that it was not owing to the want of due diligence that he did not acquire it sooner, and that it is so material that it would probably produce a different verdict. All six requirements must be met to secure a new trial. Id.

Carl's appellate counsel contends that the testimony of Jason Bodie, a/k/a Jason Boody, the only eyewitness to the alleged rape of the victim, is newly discovered evidence requiring the grant of Carl's motion for new trial. Bodie was Carl's friend and was with him on the night of the incident. The substance of Bodie's testimony is that he observed Carl and the victim having what appeared to him, from the positions and sounds of the parties, to be consensual sex.

The record establishes that at trial Carl's counsel was aware Bodie had been present on the night of the incident, was aware that prior to trial a detective had interviewed Bodie, and was aware that Bodie was not present at trial and probably would not be called as a state's witness. As a matter of trial strategy, trial counsel asserted that it was Bodie and not Carl who had sex with the victim. Thus, this is not a situation involving a newly discovered witness. Bodie had entered the vacant house with Carl and the victim on the night of the incident. Further, on appeal Carl makes no claim that Bodie refused to testify or refused to submit to pretrial interview by Carl. See Davis v. State, 221 Ga.App. 375, 471 S.E.2d 307 (1996) (defendant made no effort to subpoena accomplice and sought no continuance because of his unavailability).

"A new trial may be granted when material evidence, not merely cumulative [sic] in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him; but it must appear that neither the applicant nor his counsel knew of the existence of such evidence before the trial and that the same could not have been discovered by the exercise of ordinary diligence. [Cit.]" Norman v. Goode, 121 Ga. 449, 453, 49 S.E. 268 (1904). A defendant is not entitled to go to trial hoping to convince the jury by relying on a particular trial strategy and, when that strategy fails, attempt to obtain a new trial by proffering evidence which he knew or which, although newly available, could have been discovered earlier by exercise of due diligence. See also Humphrey v. State, 252 Ga. 525, 528(3), 314 S.E.2d 436 (1984). One of the requirements of Timberlake, supra at 491, 271 S.E.2d 792, is that it must not be because of want of due diligence that the allegedly newly discovered evidence was not acquired sooner. Due diligence must have been employed by the defendant. Carl was fully aware of the existence of Bodie and his close proximity to the crime scene. He was also aware that Bodie had been interviewed prior to trial by a law enforcement official. Carl has failed to carry his burden on appeal of establishing that he used due diligence as required by Timberlake.

Additionally, the trial court found that Bodie's credibility would be seriously impaired in the event of a new trial; thus, his testimony would serve only to impeach the victim's credibility and would not be so material that it probably would produce a different verdict in the event of a new trial. One of the Timberlake requirements is that new evidence must be so material that it would probably produce a different verdict. Id. at 491, 271 S.E.2d 792. In determining whether any newly discovered evidence would probably produce a different verdict, a trial court should not consider new evidence in isolation. Alexander v. State, 186 Ga.App. 787, 790(4), 368 S.E.2d 550 (1988). Rather, it should consider the strength and weaknesses of both the state's and the defendant's case and the nature and strength of a defendant's new evidence. See id. Moreover, the court should evaluate any credibility problems inherent in the new evidence and determine whether because of such problems, the proffered evidence probably would not result in a different verdict. See Davis, supra at 378, 471 S.E.2d 307. The trial court did not abuse its discretion in this matter. See Jewell v. State, 261 Ga. 861, 862(2), 413 S.E.2d 201 (1992).

2. The trial court did not err in denying Carl's motion for new trial on the grounds of ineffective assistance of trial counsel. To establish a claim of ineffective assistance of counsel, Carl must show his trial counsel's performance was deficient and the deficiency so prejudiced his defense that a reasonable probability exists that the trial result would have been different if the deficiency had not occurred. Nihart v. State, 227 Ga.App. 272, 273(1), 488 S.E.2d 740 (1997).

(a) Pretermitting whether trial counsel's performance was deficient in failing to interview Bodie and to call him for trial is whether if such deficiency had not occurred, a reasonable probability exists that a different verdict would have been reached. We conclude that no such reasonably probability exists. It is asserted Bodie would testify that: Carl and the victim were kissing that evening and were holding hands as they went upstairs in the vacant house; Bodie later heard sounds of intercourse from upstairs and observed the victim on top of Carl engaged in an act of sexual intercourse; the act of intercourse appeared to be consensual; and Bodie did not hear the victim scream or protest. At trial, the victim testified that Carl had sexual intercourse with her by force and without her consent and, although she was crying at the time, she did not scream or call for help. Thus, some of Bodie's post-trial testimony would be cumulative.

Additionally, review of the record in its entirety shows that it was the strategy of Carl and his trial counsel to blame the rape on Bodie should the jury believe the victim was in fact raped. As Bodie would deny that he committed the rape and would testify that he saw Carl having sexual intercourse with the victim, it is clear that presenting Bodie as a defense witness would undermine the original defense strategy. Carl has not overcome the presumption that the failure to call Bodie as a defense witness at trial falls within the range of reasonable professional assistance and might be considered sound trial strategy. Ferrell v. State, 261 Ga. 115, 119(3), 401 S.E.2d 741 (1991). We will not use hindsight to evaluate the wisdom of this strategy.

(b) Carl also claims his trial counsel was inadequate for failing to call Terry Hicks as a witness. Hicks observed the similar transaction rape victim in the presence of Carl after the alleged rape had occurred and would have testified that she was smiling, was not crying, and did not appear to be upset, and that Carl's reputation was pretty good as far as he knew.

Pretermitting whether the failure to interview and call Hicks as a witness was deficient professional conduct is whether if such deficiency had not occurred a reasonable probability exists that a different verdict would have been reached. We conclude that no reasonable probability exists that a different verdict would have likely been reached. Hicks merely observed a similar transaction rape victim's demeanor later during the night of her asserted rape by Carl. At most, Hick's testimony would have been offered to impeach the similar transaction rape victim's rape claim and to show Carl's "pretty good" character. Carl has failed to make an affirmative showing that specifically demonstrates how trial counsel's failure to call Hicks probably would have affected the outcome of this case. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615, 458 S.E.2d 623 (1995).

(c) Trial counsel's decision not to call character witnesses, including Hicks, was a matter of trial tactics. We agree with the trial court's findings that trial counsel's decision not to call witnesses cannot be considered as deficient...