Gaither v. State

• Decision Date: 27 February 2012
• Docket Number: Nos. A11A0878,A11A1435.,s. A11A0878
• Parties: GAITHER v. The STATE.Alexander v. The State.
• Court: Georgia Court of Appeals

11 FCDR 3281

312 Ga.App. 53

717 S.E.2d 654

GAITHER

v.The STATE.Alexander

v.The State.

Nos. A11A0878

A11A1435.

Court of Appeals of Georgia.

Oct. 14, 2011.Certiorari Denied Feb. 27, 2012.

Jennifer Adair Trieshmann, for appellant (case no. A11A0878).

James E. Watkins, for appellant (case no. A11A1435).

Robert D. James, Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., for appellee.SMITH, Presiding Judge.

Nacorey Alexander and Daraldo Gaither, who are brothers, were indicted with Rashard Usher and Brandon Ward on one count of battery and four counts of aggravated assault.¹ Alexander and Gaither were tried together, and a jury found them guilty of four counts of aggravated assault. ² Their amended motions for new trial were denied, and they appeal. Finding no reversible error, we affirm.

Construed in favor of the jury's verdict, the facts show that, on August 26, 2007, Usher had an argument with the victim, his estranged wife and the mother of two of his children, the child victims in this case. During the argument, Usher grabbed the victim's keys and cell phone and hit her in the mouth. After calling the police, the victim returned to the home where she lived with her boyfriend, the father of her unborn child. A short time later, she, her boyfriend, and the two child victims were standing together on the small front porch of their home when a black SUV that she recognized as belonging to Ward's mother drove up to the house with four men inside.

Alexander and Ward exited the SUV, exchanged words with the victim's boyfriend, and returned to the vehicle. All of the occupants of the SUV then emerged with firearms. Alexander, Gaither, and Usher approached the boyfriend, who backed up onto the porch steps and fell. The victim testified that “the guns were pointed at the porch, at everybody on the porch.” Gaither struck the victim's boyfriend on the head with his pistol, and then multiple shots were fired. The victim was shot in the upper thigh, breaking her femur, and her boyfriend was shot in the right shoulder.

The victim was not sure whether Alexander or Gaither fired the first shot; the victim's boyfriend testified that Alexander had his pistol pointed at him and that he tried to knock it away but was shot by “the other dude.” Both victims identified Alexander and Gaither as the individuals who attacked them. The children were next to their mother, crying and screaming as the shots were fired.

Case No. A11A0878

1. Gaither asserts the general grounds as to Counts 3 and 4, aggravated assault upon the two children. He contends that the evidence is insufficient because the children, who were two and three years old at the time, did not testify. For that reason, he contends, the State did not show that the children were “in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16–5–20(a)(2). But all the victims were together in a group on the “pretty small” porch, and the victim testified that the guns were pointed at “everybody on the porch.” Gaither's “act of firing his weapon into the group made each individual in the group a separate victim.” (Citations omitted.) Pace v. State, 239 Ga.App. 506, 509(6), 521 S.E.2d 444 (1999). And testimony that the children were crying and screaming when appellant fired into the group “was sufficient for the jury to conclude that they, too, had a reasonable apprehension of receiving a violent injury.” Robertson v. State, 245 Ga.App. 649, 651(1), 538 S.E.2d 755 (2000) (appellant fired three times into vehicle occupied by two adults and two children, wounding one adult; testimony that children were crying sufficient to support conviction for aggravated assault on children). The evidence was sufficient to uphold Gaither's conviction under the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Gaither contends the trial court erred in failing to merge the aggravated assault convictions. This enumeration of error is without merit. Although the convictions arose from the same acts, they did not merge as a matter of fact or law because each count was based upon harm to a different victim. Pace, supra; Harris v. State, 272 Ga.App. 366, 373(6), 612 S.E.2d 557 (2005).

3. Finally, Gaither alleges ineffective assistance of counsel in two respects: counsel's alleged failure to object to improper bolstering testimony and counsel's failure to object to the jury being allowed to view transcripts of witnesses' testimony. For Gaither “to succeed on his claim of ineffective assistance of counsel, he must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Moreover, we accept the trial court's factual findings and credibility determinations unless clearly erroneous.” (Citations and punctuation omitted.) Jackson v. State, 288 Ga.App. 432, 433(1), 654 S.E.2d 232 (2007). Here, the trial court entered a lengthy order on Gaither's ineffective assistance claims and made specific credibility judgments regarding the testimony of trial counsel and the evidence presented at trial, based on the trial court's observations at trial and at the hearing on Gaither's motion for new trial.

(a) Gaither first complains that counsel was ineffective in failing to object to the testimony of a police detective regarding the victim's “truthfulness in her statement to [a police officer] and identification of Appellant because [the officer's] testimony constituted harmful improper bolstering.” ³ The State correctly points out that Gaither is attempting to expand his original allegation of ineffectiveness on appeal. In his motion for new trial, Gaither asserted only that counsel was ineffective in failing to object to the prosecutor's questioning of the detective concerning whether the victim was truthful when she “gave her initial statement to [the officer] and identified the defendants.” (Emphasis supplied.) The trial court ruled only on that assertion.

Where new counsel raises the issue of trial counsel's ineffectiveness on motion for new trial, any ineffective assistance of trial counsel claims not raised at that time are waived. Such claims unasserted at the trial level are procedurally barred, and once a claim is procedurally barred, there is nothing for this Court to review. Because [appellant] has waived this particular ineffective assistance claim, we do not address the same.(Citations, punctuation and footnotes omitted.) Bell v. State, 306 Ga.App. 853, 860(3), 703 S.E.2d 680 (2010). Each specific instance of failure to object must be asserted in the court below. Kohlhaas v. State, 284 Ga.App. 79, 83(2)(b), n. 3, 643 S.E.2d 350 (2007) (appellant attempted to raise trial counsel's failure to object to four statements in prosecutor's closing argument, but raised only two in the trial court; ineffectiveness claims arising from two other statements waived). Gaither may not now expand his assertion in the trial court to include other statements by the victim or any questions directed to detectives concerning those later statements.

With respect to the claim of ineffective assistance that was preserved for review, Gaither cannot demonstrate either that counsel's performance was deficient or that the deficient performance prejudiced the defense. In the victim's initial statement, she identified three perpetrators by name, and omitted Gaither entirely. The testimony therefore exculpated Gaither, and we agree with the trial court's finding that the testimony was not prejudicial; it was highly unlikely that it changed the outcome of the trial. Anderson v. State, 257 Ga.App. 602, 603(2)(c), 571 S.E.2d 815 (2002) (failure to object to testimony favorable to defendant “considered a matter of trial tactics and strategy”).

(b) In Gaither's second claim of ineffective assistance, he contends trial counsel was ineffective “in failing to object to the trial court sending transcripts of [the victims'] trial testimony back to the jury room with the jurors during deliberations in violation of the continuing witness rule.”

During deliberations, the jury sent a note to the trial court asking to review the testimony of the victims, and requesting that a copy of the transcript be sent to the jury room. The court conferred with all counsel and stated, “I would propose to tell them we can provide that to them, but we don't have time to provide it today. It would be tomorrow morning before we could have it available, and then they can tell us whether they want it.” The court asked each counsel individually if that procedure was “agreeable,” and Gaither's counsel responded, “Yes, your honor.” The trial court then instructed the jury: “We can prepare that for you, but I don't think we can get it prepared for you today. It would be tomorrow morning. [The court reporter] has to transcribe that. So if you will just go back to the jury room and continue deliberations. If you do want that testimony, let us know and we'll start working on it.” On the same day, the jury sent another note confirming that they would like the transcript. The proceedings were adjourned and resumed at 9:00 the next morning. The trial transcript for the following day indicates that a verdict was returned immediately. Nothing in the trial transcript, however, shows that the daily transcripts of the victims' testimony were ever delivered to the jury.

At the hearing on the motion for new trial, Gaither's trial counsel indicated that he believed the daily transcripts were prepared because he had a copy. ⁴ He also had a “fuzzy” recollection, derived from a conversation with an individual he could not identify, that the transcripts were sent out to the jury on the following morning. He also believed that “shortly after they got them they came back with a verdict.”

Even assuming that the transcript of the victims' testimony was sent out with the jury, and assuming that trial testimony rather than documentary evidence violates the continuing...