Collier v. State, A03A1728.
| Decision Date | 18 March 2004 |
| Docket Number | No. A03A1728.,A03A1728. |
| Citation | 596 S.E.2d 795,266 Ga. App. 345 |
| Parties | COLLIER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sexton & Morris, P.C., Joseph S. Key, Stockbridge, for appellant.
J. Gray Conger, Dist. Atty., David B. Ross, Asst. Dist. Atty., for appellee. PHIPPS, Judge.
Billy James Collier was convicted of two counts of aggravated assault for stabbing Stephen Cambron and James McCoy. His motion for new trial was denied. He appeals, contending that the trial court erred by admitting similar transaction evidence and by ruling that he had not been deprived of effective counsel. While Collier has not demonstrated reversible error concerning the evidentiary issue, he has clearly shown ineffective assistance of counsel. Accordingly, we reverse, and remand for further proceedings consistent with this opinion, including a new trial.
The state's evidence showed that on the night of August 19, 2001, Collier was at a bar. Cambron, who was also there, noticed a man lying on the ground. While Cambron was bending down to help the man, Collier rushed to them, hit Cambron in the back of his head, backed away, and then pulled out a knife. Cambron did not know Collier and asked him why he had hit him. Collier responded, "Come on, you little son-of-a-bitch." Unarmed, Cambron approached Collier and hit him with his fists. During the ensuing fight, Cambron received knife gashes across his chest and leg. Cambron walked away from the fight and headed back to help the man on the ground. Collier spun Cambron around by the shoulder and then stabbed him in the abdomen. The police arrived and recovered the knife from a woman, who had been seen with Collier earlier that evening.
The state's evidence also showed that on the night of November 8, 2001, Collier was inside a bar and became involved in a verbal altercation among several patrons. For some of the patrons, the verbal altercation escalated into physical fighting outside the bar. Collier followed the commotion outside, where a crowd had gathered. Collier pulled a knife from his pocket. Someone fired a gun. Robert Martin was shot and fell to the ground. While McCoy was leaning down to help Martin, Collier stabbed McCoy in the abdomen. Martin and McCoy were unarmed and had been uninvolved in the earlier verbal and physical fights. The police found a knife inside the bar on the floor beside a slot machine and showed it to Collier. Collier told police first that the knife was his, next that the knife was "like his," and last that the knife was like one he had once owned.
The state introduced evidence of two similar transactions. The first incident occurred at a bar one night in May 1988. An eyewitness testified that Collier began hitting an older, disabled man named Jim Starnes, and a fight ensued between them. When the bar manager, Jim Jones, asked Collier to leave, Collier began waving a gun and threatening to kill Jones and his family. Police found the gun on another patron. The state presented a copy of Collier's guilty plea to terroristic threats entered in connection with that incident.
The second incident occurred at a bar one night in August 1988. An eyewitness testified that Collier was using the bar's telephone when the bar's owner told him that his time on the telephone was limited. After Collier rebuked her, her husband, Danny Clayberger, asked Collier to get off the telephone. Collier swung his fist at Clayberger, and the two fought. Collier pulled out a knife, and then stabbed Clayberger in the chest. Several patrons beat Collier with pool sticks until he left.
Collier took the stand and gave an account for each incident. He claimed that his actions had been justified because he had been defending others or himself. He explained that he almost always carried a knife to defend himself and that he had not known whether the individuals he injured were armed.
Recounting the Cambron incident, Collier recalled being inside the bar when a friend informed him that a fight was about to begin outside. Collier went outside, where a crowd had gathered around several people kicking and hitting a man. Collier recognized another man who was lying on the ground. Collier headed to help him, and someone shoved him. As he fought that person, others, including Cambron, began beating him. While being shoved and beaten from all directions, Collier pulled out his knife. He grabbed one of the men attacking him and stabbed him. Collier testified, "I thought I was being mobbed and I was getting them off of me."
Recounting the McCoy incident, Collier testified that he had watched the verbal altercation inside the bar move outside. Sitting inside, he could see one of his friends "go across the door one time just flying backwards and then I[saw] him come back." When Collier went outside to check on him, he became briefly involved in the fighting. That fighting ended when everyone scattered at the sound of gunfire. Collier then saw that his friend was pinned to the ground by three men, who were kicking and hitting him. Collier recalled that he pulled out his knife and then "went over there swinging my knife at them," stabbing some person who had charged him.
Recounting the Starnes/Jones incident, Collier testified that he had been "picking at" Jim Jones, that Jones became upset, that an old man approached him and made a gesture toward him, and that he reacted to that gesture by hitting that man. Collier testified that when he realized that the police had been called, he retrieved his gun from his car. He denied threatening anyone with it, stating that he had passed it to a friend only to hide.
Recounting the Clayberger incident, Collier testified that while he was using the telephone, Clayberger "kept banging around on the bar with the pool stick telling me to put the GD phone down, do this, do that." Then, two individuals swung at him with pool sticks, injuring him. During the ensuing fight, he heard someone say, "kill him," at which point, he stuck his knife into the chest of one of the men beating him.
1. Collier contends that the trial court erred in admitting the similar transaction evidence.
( a) Collier argues that the state failed to make the three showings required by Williams v. State.1 Williams requires that before independent acts may be admitted into evidence, a hearing must be held, at which the state must make three affirmative showings: it must identify a proper purpose for admitting the independent act; it must establish that the accused committed the independent act; and it must show sufficient similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.2
At a pretrial hearing to determine the admissibility of the similar transactions, the state announced that it was seeking to present eyewitness testimony of Collier's prior acts of stabbing Clayberger, hitting Starnes with his fist, and threatening to kill Jones and his family while waving a gun. Although Collier points out various dissimilarities between the independent acts and the charged offenses, the law does not require that they be identical. Whether evidence of an extrinsic transaction is admitted depends on its relevance to the issues in the trial of the case.3 The state asserted that the evidence countered Collier's defense of justification by showing Collier's modus operandi, scheme, course of conduct, and bent of mind under particular circumstances. The state also asserted that the independent acts were sufficiently similar to the charged offenses because each incident had started at night, in a bar, and had quickly escalated to Collier's commission of or threat to commit great bodily harm to unarmed, male victims. The Starnes/Jones incident was further similar to the charged offenses, the state asserted, because Collier hid his weapon after that altercation.
"When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity."4 We find that the trial court did not abuse its discretion in determining that the state met the requirements set forth in Williams.5
(b) Collier argues that the trial court committed reversible error by failing to make an affirmative determination on the record that the independent acts were admitted for some proper purpose.6 We have previously rejected this argument, holding:
Even if the trial court erred by failing to make specific findings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, no harmful error occurred because ... the evidence was sufficient for the trial court to have concluded that the Williams[ ] requirements were satisfied.7
Having concluded that the trial court was authorized to find that the state met the Williams requirements, we find no harmful error.
(c) Collier argues that the state's notice of intent to introduce the independent acts was insufficient. The notice pertinently provided:
1. On August 11, 1988, Billy Collier stabbed one James Danny Clayberger in Muscogee County, Georgia which resulted in a no bill by the Grand Jury. 2. On May 13, 1988, Billy Collier committed Terroristic Threats on one Jim Jones and also hit one James Sarner with his fist. A certified copy of the plea of guilty to Terroristic Threats is attached.8
Collier points out that the notice failed to state a purpose for the evidence and that the notice did not mention that he had also threatened Jones's family and waved a gun while making the threats. Further, Collier complains that the state did not attach a copy of the "no bill indictment" in the Clayberger incident and that it did not attach a copy of the guilty plea in the Jones incident.9
[T]he notice of intent to introduce evidence of similar crimes should clearly specify the proper purpose for which introduction...
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