Dickens v. State

• Decision Date: 13 March 2006
• Docket Number: No. S05A2077.,S05A2077.
• Citation: 627 S.E.2d 587
• Parties: DICKENS v. The STATE.
• Court: Georgia Supreme Court

627 S.E.2d 587

DICKENS v. The STATE.

No. S05A2077.

Supreme Court of Georgia.

March 13, 2006.

COPYRIGHT MATERIAL OMITTED

Edwin J. Wilson, Snellville, for Appellant.

Daniel J. Porter, Dist. Atty., John Stuart Melvin, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Julie Amanda Adams, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

Latoya Dickens was convicted of felony murder in the stabbing death of her husband, Otis Dickens. She appeals from the denial of her motion for new trial,¹ challenging the effectiveness of her trial counsel and contending that comments by the trial judge violated OCGA § 17-8-57. Finding no error, we affirm.

1. The jury was authorized to find that Dickens called 911 and said she was going to kill her husband and had armed herself with a knife. Two minutes later Dickens called 911 again and reported that she had stabbed her husband. Police responding to her calls discovered the victim, stabbed but still alive. He died as a result of the stabbing two days later. In statements Dickens voluntarily made to the first officer on the scene and later reiterated, after being informed of her Miranda rights, to the investigating detective, Dickens explained that after an earlier quarrel with the victim over her use of the family van, she took an hour and a half walk to think things over; upon her return to the apartment, she punched the sleeping victim in the mouth; the victim awoke, grabbed her and pushed her onto a sofa; Dickens went into the kitchen, obtained a knife, made the first 911 call and kicked in the bedroom door to confront the victim; after the victim retreated into the bathroom, Dickens kicked in the bathroom door, struggled with the victim over the knife and stabbed him in the left side, penetrating his lung; she then placed the second 911 phone call and waited for the police to arrive. In explaining her actions, Dickens said that she was "tired of it" and wanted a "normal life." Witnesses for the defense detailed the abusive relationship between Dickens and the victim and an expert in battered person syndrome who evaluated Dickens testified that Dickens was suffering from the syndrome. Dickens testified that she had been in an abusive relationship with the victim since she was 13 years old when he impregnated her with the couple's first child.

The credibility of the witnesses was a matter for the jury. See generally Hufstetler v. State, 274 Ga. 343(1), 553 S.E.2d 801 (2001). The evidence adduced was sufficient to enable a rational trier of fact to find Dickens guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Dickens contends that trial counsel was ineffective in failing to ensure the attendance of Leslie Pines, an out-of-state witness. At the hearing on the motion for new trial, Dickens introduced in support of her claim only her own testimony and that of her trial counsel regarding their understanding that Pines would have testified about the abuse the victim inflicted on Dickens and other women in Louisiana.

In order to prevail on a claim that counsel was ineffective for failing to call a witness, a defendant must show both prongs of the Strickland test, i.e., that counsel's performance was deficient and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong, defense counsel may testify about what an uncalled witness had been expected to say and counsel's testimony in this regard does not constitute hearsay when it is used not to establish the truth of what that witness would have said but rather to explain counsel's actions or tactical decisions regarding the uncalled witness. See, e.g., Allen v. State, 277 Ga. 711(3), 593 S.E.2d 662 (2004) (counsel declined to call witnesses who were not credible due to past criminal activity); Billups v. State, 272 Ga. 15(2)(b), 523 S.E.2d 873 (1999) (counsel declined to call witnesses who could not corroborate alibi defense). It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics, Simpson v. State, 277 Ga. 356(4)(c), 589 S.E.2d 90 (2003); tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances. See generally Jackson v. State, 278 Ga. 235(5)(a), 599 S.E.2d 129 (2004); see also Styles v. State, 279 Ga. 134(4), 610 S.E.2d 23 (2005) (counsel's failure to call witness was due to reasonable trial strategy). Counsel's testimony assessing an uncalled witness's testimony is pertinent to this inquiry because it serves to explicate counsel's decision-making process and it is not hearsay because it derives "its value solely from the credit of the witness [rather than resting] mainly on the veracity and competency of other persons." OCGA § 24-3-1(a).

However, a defendant cannot use defense counsel's testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness's testimony. Defense counsel's testimony in that regard is hearsay evidence, Dewberry v. State, 271 Ga. 624(2), 523 S.E.2d 26 (1999); Prather v. State, 259 Ga.App. 441(4), 576 S.E.2d 904 (2003); see also Fuller v. State, 278 Ga. 812(2)(d), 607 S.E.2d 581 (2005) (counsel's testimony cannot be used to prove that witness had prior felony); and hearsay, of course, has no probative value. Bridges v. State, 279 Ga. 351 n. 12, 613 S.E.2d 621 (2005). Hearsay evidence cannot be used either under the first Strickland prong to rebut the reasonableness of trial counsel's tactical decision or under the second Strickland prong to establish that the defense was prejudiced by counsel's deficient performance. Either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness's testimony.²

Although in the typical case defense counsel discusses the expected testimony of a witness in order to justify a tactical decision not to call the witness, in this case counsel testified about the anticipated substance of Pines's testimony in order to explain his opinion that his failure to ensure her attendance at trial meant he performed deficiently. Dickens now seeks to use counsel's testimony, as well as her own testimony about Pines's expected statements, to prove that counsel's deficient performance prejudiced her defense. However, Dickens was required to offer "more than mere speculation" that this witness may have had evidence that would have assisted her case at trial. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 616, 458 S.E.2d 623 (1995). Hearsay cannot serve to establish that the crucial nature of Pines's testimony would have been relevant and favorable. Accord Hudson v. State, 277 Ga. 581(4)(a), 591 S.E.2d 807 (2004) (unsworn witness statements made to police insufficient to support claim that failure to call witnesses prejudiced defense). To the extent language in other cases indicates that trial counsel's hearsay testimony may legally be considered in lieu of the uncalled witness's direct or affidavit testimony in these circumstances, that language is hereby overruled. See, e.g., Cain v. State, 277 Ga. 309(4), 588 S.E.2d 707 (2003).³

Therefore, because Dickens neither called Pines to testify at the motion for new trial hearing nor presented a legally acceptable substitute for Pines's direct testimony so as to substantiate her claim that Pines's testimony would have been relevant and favorable to her defense, "`it was impossible for [Dickens] to show there is a reasonable probability the results of the proceedings would have been different.'" Goodwin v. Cruz-Padillo, supra, 265 Ga. at 615, 458 S.E.2d 623. Under these circumstances, ineffective assistance of counsel has not been shown.

3. Appellant contends the trial court committed reversible error by violating OCGA § 17-8-57 when the judge interrupted the direct examination of a defense witness. The transcript reveals that when the witness stated she "never really saw [the victim] hit [appellant]," then went on to say, "[b]ut I knew—," the trial judge interrupted and stopped any further testimony by saying that the witness had answered the question. When the witness was asked about another incident, the trial judge asked the witness if she had seen the victim strike appellant at that time, to which the witness replied she had not. The trial judge then asked defense counsel whether the witness had been informed about hearsay and asked defense counsel to explain hearsay to the witness. Defense counsel complied and resumed her examination of the witness. The witness gave another response based on hearsay, at which time the trial judge interrupted and told the witness to answer the question based on her own knowledge. Counsel's question to the witness about what appellant had told her regarding any incidents of the victim hitting appellant prompted the trial judge to ask when appellant told the witness about being struck by the victim. When the witness began to talk about an incident in Louisiana, the trial judge directed that she listen to the question. Counsel resumed questioning, but the trial judge stopped counsel by interjecting, "No, you asked how often would they talk." At this point, lead defense counsel asked that the jury be excused and, after the jury left, voiced his objection that the trial court was interjecting itself into the case, challenging the witness when no objection had been made by the prosecution, had taken over the role of the prosecution and "plac[ed] upon the jury an opinion of what the Court feels." After the trial court denied appellant's motion for mistrial, the jury returned and defense counsel resumed her examination of the witness.

It is reversible error for "any judge in any criminal case, during its...