Dimauro v. State

• Decision Date: 26 May 2017
• Docket Number: A17A0180
• Citation: 801 S.E.2d 558
• Parties: DIMAURO v. The STATE.
• Court: Georgia Court of Appeals

341 Ga.App. 710

801 S.E.2d 558

DIMAURO

v.The STATE.

A17A0180

Court of Appeals of Georgia.

May 26, 2017

Reconsideration Denied June 14, 2017

Donald Franklin Samuel, Atlanta, for Appellant.

Joshua Daniel Morrison, Paul L. Howard Jr., Atlanta, Melissa D. Redmon, for Appellee.

Dillard, Presiding Judge.

Following a jury trial, former police officer Nicholas Dimauro was convicted of aggravated assault, aggravated battery, and two counts of violating his oath of office. Dimauro appeals these convictions, arguing that the trial court erred in (1) admitting evidence of a similar transaction; (2) admitting evidence that a witness was harassed; (3) admitting opinion evidence from various police officials; (4) refusing to give a requested special jury instruction on the reasonable use of force; (5) admitting the prior consistent statements of a witness; (6) excluding certain impeachment evidence; (7) failing to dismiss the indictment on the ground that he was prohibited from presenting evidence to the grand jury; and (8) failing to intervene and address the prosecutor's alleged misconduct during closing argument. For the reasons set forth infra , we affirm Dimauro's convictions.

Viewed in the light most favorable to the jury's verdict,¹ the record reflects that on September 4, 2010, Robert Wormley, who is white, was walking home in the Bankhead neighborhood of Atlanta around 3:00 a.m. Some Atlanta Police Department ("APD") officers, including Dimauro, referred to white people they saw in this neighborhood as "tourists," and generally considered them to be suspicious characters.² That night, Dimauro was on patrol when he stopped Wormley, who was walking in the middle of the road, and asked him for identification. Wormley—who was a convicted felon on probation and out past his curfew—responded that he had no identification. Dimauro again asked to see some form of identification, and Wormley once again responded that he had no identification and told Dimauro that he was going home. Dimauro then directed Wormley to put his hands on the patrol car, which he did. While Wormley's hands were on the vehicle, Dimauro struck him in the back of the head with a flashlight or a baton, and Wormley then took off running. As he fled, Wormley's flip flops caused him to trip and fall, but he sustained no injuries. But while he was still on the ground, Dimauro caught up to Wormley, immediately kneed him in his side, and then hit him in his left forearm with a baton.

Wormley was eventually able to get away from Dimauro, and he ran around a fence and into a backyard, where he hid behind a piece of plywood laying against the back of the house. And shortly thereafter, several other officers responded to the scene. Indeed, from his hiding place, Wormley could see multiple flashlights coming around the side of the house and into the yard. Wormley then heard someone exclaim, "there he is," and then he felt someone jump on the plywood. An unidentified officer then kicked Wormley in the face, he was knocked unconscious, and the next thing he remembered was waking up in a police car.

From the scene, Wormley was transferred to Grady Hospital, where he was treated for a collapsed lung, a fractured wrist, broken ribs, lacerations on his forehead and scalp, and cracked teeth. While he was hospitalized, Wormley made a statement to an officer from internal affairs. Four days later, Wormley was released from the hospital. He was then immediately transported to jail on charges of aggravated battery on a police officer, obstruction, and being a pedestrian in the roadway. At trial, Wormley admitted that he had used cocaine earlier that evening, had prior felony convictions, and had spent time in prison. Wormley also testified that, just before the trial began, the State nolle prossed an unrelated escape charge that he had been facing.

Ultimately, Dimauro was indicted by a grand jury for aggravated battery by depriving Wormley of the use of his arm and ribs, aggravated battery by disfiguring Wormley's head, aggravated assault, and two counts of violating his oath of office. Following a jury trial, he was found not guilty of aggravated battery by depriving Wormley of the use of his arms and ribs and found guilty on the remaining charges. Dimauro then filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Dimauro first asserts that the trial court erroneously admitted evidence under OCGA § 24-4-404 (b) (i.e., Rule 404 (b)) in order to establish intent and mistake of fact. Specifically, he argues that evidence regarding an assault against another man Dimauro attempted to detain should not have been admitted to show intent because the charged crimes were general intent crimes, and similar transaction evidence is most appropriate in cases involving specific intent. Dimauro also asserts that a video shown to the jury of the assault against the other man was more prejudicial than probative. We disagree.

OCGA § 24-4-404 (b) provides that

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.³

The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called "other acts" evidence:⁴

(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.⁵

As to the first factor, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."⁶ And as to the second factor, even if Rule 404 (b) evidence is relevant, we must still decide whether "the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403."⁷ Of course, application of the Rule 403 balancing test is "a matter committed principally to the discretion of the trial courts," but as we have explained before, "the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly."⁸ Finally, we review the admission of Rule 404 (b) evidence "for a clear abuse of discretion," a deferential review requiring us to make "a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similaritybetween the extrinsic act and the charged offense, as well as temporal remoteness."⁹

Prior to trial, Dimauro filed a motion in limine seeking to prevent the State from presenting evidence regarding ten different allegations of excessive force that had been made against him throughout his time as an officer with the APD. Thereafter, the State filed its notice of intent to introduce "other acts" evidence concerning two incidents, and Dimauro filed a motion to prevent the introduction of such evidence. Specifically, the State sought to introduce evidence that Dimauro (1) falsely accused a man of dragging him with a vehicle and pinning him in during an arrest, and (2) used excessive force against Clemmin Davis while attempting to detain him in 2011.

At the hearing on these matters, the State sought to introduce evidence, including a short video, showing that on April 29, 2011, Dimauro, along with two other officers, struck Davis while attempting to arrest him. Dimauro asserted, during an internal investigation, that Davis was resisting arrest. The State argued that the incident was relevant to the jury's determination of whether Dimauro was truthful regarding his encounters with citizens and whether the amount of force he used was actually necessary to bring a suspect into custody. Dimauro argued that the Davis incident was not relevant to show intent or lack of mistake of fact, was not similar to the charged offense, and that the video of the assault was merely intended to inflame the passions of the jury. The court took the matter under advisement and ultimately ruled, based on its consideration of the motions and oral argument, that the Davis incident was admissible to show Dimauro's "intent to commit an assault upon the victim as well as his lack of mistake of fact in his assertion of the suspect's resistance leading to the use of force." The trial court deemed the other incident inadmissible and prohibited the State from referring to it or any other allegations of excessive force against Dimauro.

At trial, Davis testified that on April 29, 2011, he fled from police officers during a traffic stop. He eventually ran into a wooded area and fell to the ground. While he was on the ground, three officers, including Dimauro, punched, kicked, and hit him for several minutes. The State also presented testimony from a man who saw and videotaped Davis's beating and uploaded the video to YouTube. The

14-second video, made on the witness's cell phone, was introduced into evidence and played for the jury. The video is not of great quality, but it depicts three officers in a wooded area, surrounding Davis. Although the video clearly depicts the officers on either side of Davis hitting and kicking him, it is difficult to see what Dimauro, who is in the middle of the three officers, is doing.

As an initial matter, we note that although Dimauro argues that similar transaction evidence is most appropriate in cases involving specific intent, he concedes that Rule 404 (b) evidence "is not automatically excluded in general intent crimes."¹⁰ Here, Dimauro was charged with aggravated battery, aggravated assault with a deadly weapon, and violating his...