Gibbs v. State

• Decision Date: 16 April 2018
• Docket Number: S17G1343
• Citation: 303 Ga. 681,813 S.E.2d 393
• Court: Georgia Supreme Court
• Parties: GIBBS v. The STATE.

303 Ga. 681

813 S.E.2d 393

GIBBS

v.The STATE.

S17G1343

Supreme Court of Georgia.

Decided: April 16, 2018

Reconsideration Denied May 21, 2018

Forrest K. Shealy, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Amelia G. Pray, Jaret T. Usher, Assistant District Attorneys, for appellee.

Benham, Justice.

Appellant Kevin S. Gibbs was convicted of aggravated assault upon a police officer and other offenses arising out of an encounter he had with a Smyrna police officer on February 12, 2013, commencing at a city park. Gibbs was behind the wheel of a car backed into a parking space in a remote area of the park when the officer drove his patrol vehicle into that same parking area. The officer testified at trial that he intentionally placed his vehicle at an angle so that it would not block Gibbs from leaving, and then he exited the patrol vehicle and approached Gibbs's car. The relevant facts established at trial are largely set forth in the Court of Appeals opinion affirming the convictions. See Gibbs v. State , 340 Ga. App. 723, 724-725 (1), 798 S.E.2d 308 (2017). Our own examination of the record reveals that as the officer approached Gibbs's car, Gibbs stepped on the accelerator, causing the car to lurch forward and strike the officer's leg. Even after the officer drew his weapon and ordered Gibbs to stop and exit his vehicle, Gibbs again accelerated the car and struck the officer a second time. The officer dove out of the way while firing his weapon. The gunshot shattered the driver-side window and struck Gibbs. Gibbs then sped away from the park, let his passengers out, and then drove recklessly through heavy traffic while being pursued by patrol cars, ultimately colliding with another vehicle before being stopped by the police.

One of the State's witnesses at trial was a nurse at the hospital where Gibbs was admitted for treatment of his gunshot wound after being taken into custody. As part of the routine admitting process, the nurse questioned Gibbs about his medical history and made a written record of certain information he offered in response. This Court granted a writ of certiorari to examine two issues: Whether the Court of Appeals erred in its determination that the nurse's testimony regarding Gibbs's statement to her that he had used marijuana on the day of the crimes was admissible as intrinsic evidence; and whether the Court of Appeals erred in determining that Gibbs waived his right to argue that trial counsel was ineffective for failing to object to the testimony regarding his marijuana use because he failed to question trial counsel about that issue at the motion for new trial hearing. As set forth below, we conclude the Court of Appeals erred in its determination that Gibbs waived his right to argue ineffective assistance of counsel, but we nevertheless agree that the trial court's denial of Gibbs's motion for new trial was properly affirmed.

1. Trial counsel objected to the nurse's testimony because the evidence showed the nurse had not given Miranda warnings before obtaining Gibbs's statement that he had smoked marijuana the day he was admitted to the hospital, but this was a meritless objection since no requirement exists for a private citizen who is not acting on behalf of the State to give self-incrimination warnings before questioning a person accused of a crime. See Williams v. State , 302 Ga. 474, 484 (IV) (c), 807 S.E.2d 350 (2017). Trial counsel made no other objection to the nurse's testimony. In his amended motion for new trial, Gibbs, represented by a new attorney as appellate counsel, asserted that his trial counsel provided ineffective assistance as a result, among other things, of his failure to challenge the admissibility of the nurse's testimony on the ground that it improperly placed Gibbs's character into issue without a showing by the State that such evidence could reasonably create a motive for the crimes charged. Gibbs appealed the trial court's denial of the motion for new trial. The Court of Appeals concluded that "[t]he nurse's testimony was not subject to an objection under OCGA § 24-4-404 (b) [Rule 404 (b) of the Georgia Evidence Code] because it is intrinsic evidence."¹ Gibbs , 340 Ga.App. at 727 (2)(a), 798 S.E.2d 308. Based on this conclusion, the Court of Appeals ruled that trial counsel's performance was not deficient for failing to make such an objection, and thus the trial court did not err in denying Gibbs's motion for new trial alleging ineffective assistance of counsel on this ground. Id. at 728 (2)(b), 798 S.E.2d 308.

Having examined the record and the argument of the parties, we conclude it is unnecessary to determine whether the testimony regarding Gibbs's statement about use of marijuana was admissible as intrinsic evidence because, in any event, its admission created no prejudice given the strong evidence of Gibbs's guilt.² Because ineffective assistance of counsel requires both deficient performance and prejudice,³ Gibbs's claim of ineffective assistance of counsel for counsel's failure to object to this testimony on the grounds of relevance or the inadmissibility of evidence of other bad acts fails. See Jones v. State , 302 Ga. 488, 493 (2) (b), 807 S.E.2d 344 (2017) (even if deficient performance is demonstrated, a claim of ineffective assistance of counsel cannot be sustained if the appellant fails to meet the burden of showing a reasonable probability that the outcome of the trial would have been different); see also Gill v. State , 295 Ga. 705, 708 (2), 763 S.E.2d 719 (2014).

2. At the hearing on his motion for new trial, Gibbs also asserted ineffective assistance as a result of counsel's failure to object to the nurse's testimony on the ground that it violated Gibbs's medical records privacy rights. The Court of Appeals noted that appellate counsel did not question trial...