Holman v. State

• Decision Date: 29 October 2014
• Docket Number: No. A14A1284.,A14A1284.
• Court: Georgia Court of Appeals
• Parties: HOLMAN v. The STATE.

329 Ga.App. 393

765 S.E.2d 614

HOLMAN

v.The STATE.

No. A14A1284.

Court of Appeals of Georgia.

Oct. 29, 2014.

Jennifer Adair Trieshmann, for Appellant.

Lynda S. Caldwell, Asst. Dist. Atty., Peter J. Skandalakis, Dist. Atty., for Appellee.

Opinion

DILLARD, Judge.

Following a trial by jury, Ulysses Holman was convicted of driving under the influence to the extent that he was less-safe to drive (DUI less safe) and serious injury by vehicle. On appeal from these convictions, Holman contends that (1) the evidence is insufficient to sustain his convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. For the reasons set forth infra, we affirm.

1. At the outset, before addressing the facts of this case or Holman's enumerations of error, we note that this Court previously issued an opinion in this appeal on September 9, 2014 (which has since been recalled and vacated), in which we also affirmed Holman's convictions, albeit for a different reason. In that original opinion, we based our decision on the fact that in his notice of appeal, Holman did not request that a trial transcript be included as part of the appellate record. And because no transcript was requested, we believed that a transcript had not been transmitted to this Court for our review.

Specifically, we affirmed Holman's convictions in that earlier opinion because OCGA § 5–6–37 dictates that a notice of appeal shall set forth, inter alia, “a designation of those portions of the record to be omitted from the record on appeal,” and “[i]n addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.”¹ But here, Holman's notice of appeal stated only that nothing should be omitted from the record on appeal. The notice did not request that a transcript of evidence and proceedings be transmitted to this Court as a part of the appellate record, and, in such a case, we are not at liberty to infer otherwise. Indeed, as our Supreme Court has explicitly held, “[t]he specification that ‘nothing’ is to be omitted from the record would not infer that the transcript is to be included, since the appellant is required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted.”²

The apparent absence of the trial transcript in the case sub judice made it impossible for this Court to review Holman's enumerations of error concerning the sufficiency of the evidence, the court's instructions to the jury, and trial counsel's allegedly ineffective assistance.³ And it is well established that it is the burden of the complaining party to “compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.”⁴ Additionally, when no transcript is included in the record on appeal we “must assume that the evidence was sufficient to support the judgment.”⁵ We therefore affirmed the judgment of the trial court on this ground.⁶

On September 22, 2014, Holman's counsel belatedly filed a Notice of Intention to Apply for Writ of Certiorari to the Supreme Court of Georgia,⁷ rather than filing a motion for reconsideration.⁸ On September 30, 2014, Holman—not his counsel—called this Court's clerk's office to make inquiry regarding the reasons for our disposition in the prior appeal and was directed to speak with his counsel regarding same. Nevertheless, following that call, our clerk's office, on its own initiative, discovered that a transcript of proceedings was indeed transmitted to this court in a prior appeal by Holman.

On March 29, 2012, Case No. A12A1504 was docketed with this Court, and in that case, Holman sought to appeal the same convictions at issue in the case now before us. At that time, Holman filed his appeal pro se and, as is the case in his current appeal, did not specify in his notice of appeal whether or not a transcript of evidence and proceedings were to be transmitted to this Court. Nevertheless, it appears that the lower court sua sponte transmitted all available transcripts despite Holman's failure to comply with OCGA § 5–6–37.

However, prior to filing an appellate brief in Case No. A12A1504, Holman filed a motion to remand the case to the trial court for the appointment of appellate counsel, which we granted on May 11, 2012; and on that same date, we issued a remittitur to the lower court. Thereafter, in May 2012, the trial court appointed appellate counsel to represent Holman; however, no appeal was filed and a Motion for Out of Time Appeal was granted on January 30, 2013. But still, no appeal was filed until after Holman and the State subsequently entered into a consent order for the filing of an out-of-time-appeal in September 2013. Finally, a notice of appeal in the current case was filed on September 16, 2013, the contents of which are described supra.

During the investigation that ensued in our clerk's office following the September 30, 2014 phone call from Holman, this Court discovered that in early February 2014, the trial court called this Court to inform it that a second appeal would be forthcoming, at which point a hold was placed on the record from the prior appeal in order to preserve it.⁹ This proved to be a stroke of luck for Holman because: (1) the record from Case No. A12A1504 had not already been recycled by this Court;¹⁰ and (2) it was, once again, the trial court that undertook the responsibility of ensuring that a transcript was included on appeal despite Holman's repeated failures to make any of the statutorily-required specifications in his notice of appeal.¹¹

In sum, neither Holman nor Holman's counsel took any action to ensure that (1) the transcript transmitted sua sponte by the trial court in the prior appeal was held in this Court for use in the subsequent appeal or (2) this Court was aware that Holman intended to use the transcript transmitted with the prior appeal as the transcript in the current appeal.¹² Indeed, although the trial court requested that the transcript be held over a year after the remittitur had been issued in the prior appeal (and after Holman filed his statutorily deficient notice of appeal), it was, nevertheless, Holmanwho had a statutory duty to include in his notice of appeal that no transcript was to be transmitted with the current appeal.¹³ And to the extent Holman wished to rely upon the transcript transmitted by the trial court in the prior appeal (which was being held in this Court as a matter of courtesy to the trial court), he had a duty under OCGA § 5–6–37 to specify in the notice of appeal that he was not requesting the transmission of the transcript in this appeal because one had previously been transmitted in a prior appeal and was already on hold at the Court. Suffice it to say, even when this Court has been notified by an appellant that a transcript should be placed on hold, it remains the “primary responsibility of the appropriate parties and not this [C]ourt to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this [C]ourt prior to the issuance of our appellate decision.”¹⁴ As such, an appellant must include in the notice of appeal his or her intention to rely upon a previously transmitted transcript in order to satisfy the dictates of OCGA § 5–6–37. This, Holman did not do. And one cannot complain of an appellate ruling, order, or judgment that “his own legal strategy, appellate procedure or conduct aided in causing.”¹⁵

Nevertheless, despite the repeated procedural errors by Holman, and despite appellate counsel's election to bypass the filing of a motion for reconsideration,¹⁶ we chose to sua sponte vacate our prior opinion and reinstate this case to address Holman's enumerations of error on the merits.¹⁷ We did so because our Court had not yet addressed the unique procedural situation presented by this appeal in a published opinion. This opinion, then, shall serve to place future appellants on notice that similar procedural errors may result in automatic affirmance of a trial court's decision.

2. As previously noted, Holman argues that his convictions must be overturned because (1) the evidence is insufficient to sustain those convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. We disagree.

Viewed in the light most favorable to the jury's verdict,¹⁸ the record reflects that in the late afternoon of June 30, 2007, Holman was traveling on Interstate 85 when his car crossed the median and made impact with the elderly victim's vehicle. As a result of this collision, the victim lost consciousness at the scene, sustained lacerations to the face, bruising to the chest, bruising to internal organs, a fractured vertebrae, and an injury to the bowel that was so severe it required removal of a portion of that organ and left the victim with bulging intestines.

Witnesses to the crash testified that, prior to the accident, Holman's vehicle weaved around the road; was traveling at over 75 miles per hour, or at an “incredible rate of speed”; aggressively passed other cars on the interstate; and then careened over the median, fish-tailed across the road, and struck the victim's vehicle. One of these witnesses also testified that when she approached Holman to render aid, she immediately noticed that he “reeked” of an alcoholic beverage and had “very, very red” eyes.

Likewise, the responding law-enforcement officer testified that Holman smelled of an alcoholic beverage, had watery and bloodshot eyes, and spoke with slurred, slow speech. The officer also testified that Holman did not understand an initial explanation of Georgia's implied-consent notice and became irate and belligerent...