Everhart v. State

• Decision Date: 25 May 2016
• Docket Number: A16A0652
• Citation: 786 S.E.2d 866,337 Ga.App. 348
• Parties: Everhart v. The State.
• Court: Georgia Court of Appeals

337 Ga.App. 348

786 S.E.2d 866

Everhart

v.The State.

A16A0652

Court of Appeals of Georgia.

May 25, 2016

Reconsideration Denied June 9, 2016

Marko Ludvik Burgar, Atlanta, James David Michael, Decatur, Burgar & Michael, for Appellant.

Mary Beth Gregoire, Asst. Dist. Atty., Leigh Ellen Patterson, Dist. Atty., Rome, for Appellee.

Peterson

, Judge.

Jonanthony Everhart, convicted of two counts of cruelty to children in the first degree, and one count of cruelty to children in the second degree, appeals from the denial of his motion for a new trial. Everhart argues that (1) the trial court erred in allowing deposition testimony to be read at trial; (2) the trial court erred in failing to conduct a pretrial hearing on other acts evidence; (3) his trial counsel rendered ineffective assistance of counsel in several respects; and (4) Count 1 of the indictment did not allege the crime of cruelty to children in the first degree. We reverse Everhart's conviction on Count 1 for cruelty to children in the first degree because Everhart's trial counsel provided ineffective assistance by failing to demur to the fatally defective indictment. We affirm Everhart's remaining convictions because (1) the other aspects of trial counsel's performance of which Everhart complains do not constitute ineffective assistance that prejudiced his defense, (2) Everhart's counsel agreed to the deposition without Everhart's presence and Everhart acquiesced in that waiver of his presence, and (3) admitting evidence of prior difficulties between Everhart and the victim's brother neither required a hearing nor harmed Everhart.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State , 230 Ga.App. 224, 224, 496 S.E.2d 292 (1998) (citation omitted). So viewed, the evidence shows that Everhart was living with the victim, who was a three-month-old infant at the time, and the victim's two-year-old brother and mother, although he was not the biological father of the children. One evening, Everhart demanded money from the victim's mother to buy marijuana and cigarettes. When she refused, Everhart jerked the young victim out of the car seat and started beating him repeatedly in the ribs with a broom handle. Everhart also shook the victim. Despite obvious resulting injuries, including bloody urine in the victim's diaper, Everhart and the victim's mother did not bring the victim to the hospital until several days later, claiming another adult, Ms. Smith, had dropped the victim. The victim was noted as having serious life-threatening injuries, was intubated, and was transferred via emergency helicopter to a children's hospital. Medical assessment of the victim revealed a skull fracture

, brain bleeding and damage, internal bleeding and organ damage, multiple rib fractures, retinal hemorrhages, and resulting seizures, all of which were likely to result in significant life-long impairment. The physicians who testified at trial agreed that the injuries were not compatible with the victim having simply been dropped or falling, but rather were the result of physical abuse. The victim's brother also had bruising. The victim and his brother were taken into protective custody, and their mother and Everhart were subsequently arrested and charged with various crimes pertaining to both children.¹

At Everhart's trial, testimony regarding the extent and cause of the victim's injuries was presented through the deposition of Dr. Greenbaum, a forensic pathologist. The victim's mother and a police officer also provided testimony regarding a previous episode in which Everhart hit the victim's brother repeatedly over a twenty minute period. Ms. Smith, who Everhart had originally claimed injured the victim, also testified that she had to provide some care to the victim while the victim's mother and Everhart were outside smoking marijuana. Additionally, a witness from the Division of Family and Children's Services (“DFCS”) testified regarding her interview of Everhart, and Everhart's videotaped interview by a police investigator was played at trial. Everhart was found guilty of the charges pertaining to the victim, but not those pertaining to the victim's brother. Everhart filed an amended motion for a new trial, which the trial court denied, prompting this appeal.

1. Everhart argues that the trial court erred in allowing the testimony from Dr. Greenbaum's deposition to be introduced at trial because the deposition occurred outside of his presence and without sufficient notice to him and because no notice of intent to depose Dr. Greenbaum was provided to or approved by the trial court. We disagree.

Although “the taking of testimony is a critical part of the trial at which the defendant has the right to be present[,]” a defendant may waive that right either personally or through his counsel. Holsey v. State , 271 Ga. 856, 861, 524 S.E.2d 473 (1999)

; see also

Brooks v. State , 271 Ga. 456, 457, 519 S.E.2d 907 (1999). “For there to be a waiver by defendant's counsel, the waiver must be made in the defendant's presence or with his express permission, or else the waiver must be subsequently acquiesced in by the defendant.” Brooks , 271 Ga. at 457(2), 519 S.E.2d 907 (footnote omitted).

Everhart was not present during the deposition, but Everhart's counsel indicated that he was “waiving the appearance of Mr. Everhart,” although he had not yet discussed the issue with Everhart. When Dr. Greenbaum's deposition was later introduced at trial, neither Everhart nor his attorney objected. This silence constituted Everhart's acquiescence in the waiver of his presence at the deposition. See Holsey , 271 Ga. at 861(5), 524 S.E.2d 473

(when defendant's “counsel made no objection and [defendant] remained silent as well,” court concluded that defendant “acquiesced in the proceedings that occurred ... in his absence”); Zamora v. State , 291 Ga. 512, 519–20(7)(c), 731 S.E.2d 658 (2012) (appellant's failure to object upon discovering the details of a bench conference conducted in his absence amounted to acquiescence).

Everhart argues Holsey

does not apply because in that case the court affirmatively addressed the issue with the defendant, and thus the defendant's silence was more meaningful than it is here. This is a misreading of Holsey. In Holsey, the trial court simply informed the parties that certain juror questions during a site visit that the defendant did not attend had been answered; the court did not ask the defendant or his counsel anything about the defendant's absence. Id. at 861(5), 524 S.E.2d 473. Neither the defendant nor his counsel objected, and therefore the defendant was found to have acquiesced in the proceedings. Id. In any event, the rule in Holsey has been applied in a number of other cases in which a defendant's silence has been taken as acquiescence even in the absence of a specific statement to the defendant by the court. See, e.g. , Scudder v. State , 298 Ga. 438, 440(2), 782 S.E.2d 638 (2016)

; Zamora , 291 Ga. at 519–20(7)(c), 731 S.E.2d 658 ; Jackson v. State , 278 Ga. 235, 237, 599 S.E.2d 129 (2004).

We also note that this case is necessarily different from the other case Everhart relies upon, Cesari v. State , 334 Ga.App. 605, 780 S.E.2d 56 (2015)

. In that case, the defendant was denied reentry into the courtroom during the course of his trial, an action in which he did not acquiesce. Id. , 334 Ga.App. at 610(1), 780 S.E.2d 56. No equivalent event occurred here.

Everhart also argues that the State failed to follow the requirements for using a deposition at trial set forth in formerOCGA § 24–10–130

, which includes a provision for notice. But regardless of any technical defect in the State's failure to adhere to former OCGA § 24–10–130's requirements, Everhart's counsel had actual notice of the deposition, was present, and cross-examined the witness. See, e.g. , Burrell v. State , 258 Ga. 841, 844, 376 S.E.2d 184 (1989) (technical violation of statute's notice provision harmless where, among other things, defendant had an opportunity to cross-examine).

Because Everhart ultimately acquiesced in his counsel's waiver of his presence at the deposition, there was no violation of Everhart's constitutional rights, and any violation of the statute's notice provision was harmless.

2. Everhart also argues that the trial court erred by failing to conduct a pretrial hearing to determine the admissibility of other criminal wrongdoing and prior bad acts and by failing to make explicit rulings regarding relevance and prejudice. We disagree.

Everhart objects to the admission of evidence pertaining to a prior police response to a 911 call. Someone had called police to report hearing a child being beaten for approximately twenty minutes. The responding officer testified that when he arrived at the residence, “I talked to all three of the children for a minute. All of them seemed fine. They were just running around playing like any normal children would be doing[.]” The responding officer further testified that he checked to see if they were okay, and that the children did not seem to be in any distress. The police officer did not take any further action because he did not observe anything that warranted a report to DFCS, and was not even certain that Everhart was the same individual at the residence when he responded to the 911 call. The victim's mother testified that, on the day of the 911 call, Everhart had beaten the victim's brother with a belt because he did not like the way the child was looking at him.

(a) Everhart does not direct us to authority requiring a hearing before evidence of prior difficulties may be admitted. Prior to the new Evidence Code, former Uniform Superior Court Rule 31.3

required notice of an intent to introduce evidence of similar transactions and a hearing in order to decide whether the evidence was admissible.

Former Unif. Sup. Ct. Rule 31.3(A), (B)....