Hernandez v. State

• Decision Date: 09 October 2012
• Docket Number: No. A12A1223.,A12A1223.
• Citation: 317 Ga.App. 845,733 S.E.2d 30
• Parties: HERNANDEZ v. The STATE.
• Court: Georgia Court of Appeals

317 Ga.App. 845

733 S.E.2d 30

HERNANDEZ

v.The STATE.

No. A12A1223.

Court of Appeals of Georgia.

Oct. 9, 2012.

George Brandon Sparks, Michael Robert McCarthy, for Appellant.

Herbert McIntosh Poston Jr., Stephen Eric Spencer, George Jason Souther, for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Jose Farjado Hernandez was convicted of attempted murder (OCGA §§ 16–4–1, 16–5–1(a), (b)), family violence aggravated battery (OCGA § 16–5–24(a), (h)), false imprisonment (OCGA § 16–5–41(a)), and giving a false name to officers (OCGA § 16–10–25). Hernandez filed a motion for new trial, which the trial court denied. On appeal, Hernandez contends that (1) the State improperly elicited inadmissible character evidence, which warranted a mistrial; (2) he received ineffective assistance of counsel; and (3) the trial court erred in failing to merge the family violence aggravated battery offense with the attempted murder offense. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Footnote omitted.) Goss v. State, 305 Ga.App. 497, 699 S.E.2d 819 (2010).

So viewed, the evidence shows that Hernandez and the victim began dating in February 2009. Two months later, the couple began residing together at the home of the victim's sister. Hernandez and the victim had a turbulent relationship. Prior to the incident at issue, Hernandez was violent toward the victim on more than one occasion—including an instance where he held a butcher knife at the victim's throat and another where he punched her in the mouth. Although the victim attempted to end the relationship several times, Hernandez would not leave her and told her they were “going to be together forever.” In addition, two days before the incident at issue, Hernandez attacked the victim when she returned to her sister's home, throwing her to the ground and beating her on the head.

On the day at issue, November 15, 2009, the victim was at her friends' residence. The victim fell asleep on the couch. Shortly after the victim woke up, Hernandez walked through the door. Hernandez opened a beer and sat down next to the victim on the couch, telling her that they were going to be together. The victim continued to insist that the relationship was over. After their conversation, Hernandez left to buy the victim something to eat. When he returned, Hernandez drank some beer and fell asleep. The victim left with a friend and went to another apartment for several hours. When she returned to her friends' residence, Hernandez was no longer there.¹ After about 30 minutes, however,Hernandez came back to the residence. The victim asked her friend to call a taxi because Hernandez was intoxicated, and she did not want to be around him in his condition.

The victim went outside when the taxi arrived, but saw Hernandez standing in front of the vehicle. Although she walked around the taxi in an attempt to avoid Hernandez, he came toward her and stabbed her in the stomach with a knife. The victim fell to the ground and tried to push the knife away from her, but Hernandez continued to gesture at her with the knife. The victim's friend finally walked over and hit Hernandez in the head with a chair, knocking Hernandez off of the victim. The victim took the opportunity to run back into her friends' residence and into the bathroom. Since the bathroom door did not lock, the victim sat up against the door to hold it closed. Hernandez attempted to knock the bathroom door open. When the victim no longer heard Hernandez at the door, she exited the bathroom and asked someone to call an ambulance. At that point, Hernandez ran back through the door and started stabbing the victim in the back of her leg. The victim quickly returned to the bathroom. Hernandez chased the victim and continued to try to knock the door down. The victim was able to escape the bathroom via a small window. The victim ran away from the residence toward her friend, who had contacted the police. An ambulance and the police arrived shortly thereafter. As the victim was being put into the ambulance, Hernandez started walking toward them, and the victim identified him to the police. The police took Hernandez to the ground and recovered a kitchen knife from his pocket. Hernandez falsely identified himself to the police as “Victor Martinez,” and he was taken into custody.

As a result of the incident, the victim suffered stab wounds in her eye, her stomach, her side, her hand, and her leg. During trial, the parties stipulated to the following facts: that the clothing worn by Hernandez on the date of the incident contained the victim's blood; that the knife recovered from Hernandez's person contained the victim's blood; and that the photographic exhibits containing depictions of blood reflected the victim's blood. Hernandez was subsequently charged and convicted of attempted murder, family violence aggravated battery, false imprisonment, and giving a false name to officers.

1. Hernandez contends that the State improperly elicited inadmissible character evidence, and that the trial court should have granted his request for a mistrial on this basis. We disagree.

Motions for mistrial are generally in the discretion of the trial judge, and especially where the cause is a voluntary remark of a witness uninvited by counsel, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the defendant's fair trial rights, the court's discretion will not be overturned.

(Citations omitted.) Ochle v. State, 218 Ga.App. 69, 72(4), 459 S.E.2d 560 (1995). “In reviewing the denial of a mistrial, we look at the relevant circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” (Citations, punctuation, and footnotes omitted.) Owens v. State, 250 Ga.App. 61, 62, 550 S.E.2d 464 (2001).

During the State's direct examination of the victim, the prosecutor questioned the victim regarding her knowledge of Hernandez being known by any other names. After establishing that the victim did not know Hernandez by the name of Victor Martinez, the false name Hernandez gave to the police upon his arrest, the following exchange occurred:

Q Was there ever a time when someone, a female, called him another name?

A Yes.

Q What was that all about?

A There was a girl that c[a]me to his house one time to buy some cocaine from him in the trailer where he used to live.Hernandez's counsel promptly objected and sought a mistrial.

The prosecutor explained that the victim's response was unresponsive to the question, and that his intent was not to elicit testimony regarding Hernandez's past dealings with cocaine. Rather, the prosecutor's intent was to elicit evidence to prove the offense of giving a false name to officers. The prosecutor indicated that his expectation was for the victim to testify only about the fact that Hernandez went by different names; his expectation was based upon his previous discussion with the victim regarding her knowledge of an individual who had called Hernandez by a name that the victim had never previously heard. Moreover, although the prosecutor indicated that he had cautioned the victim about “saying certain things, staying away from certain things,” he could not specifically recall whether he instructed her not to testify regarding the subject of drugs. Nor did the victim recall being instructed not to mention the cocaine sale while testifying about Hernandez's use of different names.

The trial court found that the information about the cocaine was inadmissible and instructed the victim to refrain from any further comments about Hernandez being involved in the sale of cocaine. Although the trial court declined to grant Hernandez's request for a mistrial, it immediately issued the following curative instruction to the jury: “This defendant is not charged with any drug-related offense. Any statement just made by the witness is to be disregarded. It is to have no effect. You shall not consider that in regard to the charges that we are dealing with here today.”

As an initial matter, Hernandez failed to renew his motion for mistrial following the trial court's issuance of the curative instruction, which has waived the issue on appeal.² See Warren v. State, 314 Ga.App. 477, 479(2)(a), 724 S.E.2d 404 (2012). In any event, Hernandez has not shown that the trial court abused its discretion in denying his motion. Hernandez contends that the prosecutor's line of questioning indicated the State's intent to elicit testimony regarding allegations of a cocaine sale, which constituted inadmissible character evidence about Hernandez. Although the prosecutor's question was broadly stated, the trial court was authorized to conclude that the prosecutor did not deliberately elicit impermissible testimony.³Rather, without any specific instruction to avoid mention of the subject, the victim's comment, made only once, was inadvertent. See Starks v. State, 240 Ga.App. 346, 348–349(2), 523 S.E.2d 397 (1999) (concluding that witness's testimony regarding defendant's character, although responsive to the prosecutor's question, was inadvertent where no specific instruction or ruling was violated); Morgan v. State, 161 Ga.App. 484, 487(9), 287 S.E.2d 739 (1982) (holding that mistrial was not warranted where witness's statement about defendant's other charges was made only once, witness was merely responding in narrative form to the prosecutor's questions, and witness was given no warning regarding testimony about other charges). “ Because the trial court acted immediately, ruled out the offensive testimony, and properly instructed the jury to disregard the statement, and give it no consideration whatsoever, we...