Merchant v. State
| Decision Date | 12 August 2022 |
| Docket Number | A22A1153 |
| Parties | MERCHANT v. The STATE. |
| Court | Georgia Court of Appeals |
Willingham Law Firm, David Russell Willingham, Marietta, for Appellant.
Barry Edward Morgan, Solicitor-General, Marietta, Melissa Tatum, Anda Lopazan Griner, Assistant Solicitors-General, for Appellee.
Phipps, Senior Appellate Judge.
Clarence Merchant was found guilty of simple battery following a bench trial. He appeals the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support the verdict; (2) the trial court erred by depriving him of his right to a trial by jury; (3) the trial court erred by failing to properly and timely advise him of his right not to testify, as well as his right not to have his refusal to testify held against him; and (4) his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.
Reviewing the record in a light most favorable to the verdict, Smith v. State , 304 Ga. 752, 753, 822 S.E.2d 220 (2018), the evidence shows that in the early hours of September 1, 2019, Merchant, his stepdaughter C. C.,1 and her boyfriend K. M. were at Merchant's home when Merchant became upset about noise that C. C. was making as she searched for her cat. Loud alerts were triggered on Merchant's home security system each time C. C. entered and exited the home. Merchant asked C. C. to stop opening doors, and when she did not, an argument ensued. During the argument, Merchant "swung on" his stepdaughter and hit her on the side of her head, near her left eye.
Merchant then called 911 and requested police assistance because "he was having some difficulties with his stepdaughter." Police made no arrests after speaking with Merchant, C. C., and K. M., because, according to the responding officer, C. C. had no visible injuries at that time. The next morning, after noticing redness, swelling, and bruising on her face, C. C. again met with police. Merchant was then charged, via accusation, with one count of family violence battery, one count of battery, and two counts of simple battery.
The court conducted a bench trial during which Merchant, C. C., and two police officers testified. At the close of evidence, the trial court found Merchant guilty of simple battery and not guilty of the remaining charges and sentenced to him to 12 months of probation. Merchant timely filed a motion for new trial. After a hearing, the trial court denied Merchant's motion, and this appeal followed.
1. Merchant first contends, without elaboration, that the evidence at trial was insufficient to support the verdict.2 We disagree.
As relevant to this case, simple battery is committed when a person "[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another." OCGA § 16-5-23 (a) (1). Here, Merchant was charged with "unlawfully and intentionally" making physical contact "of an insulting and provoking nature" with C. C. The evidence that he "swung on" and hit her in the face is sufficient to sustain his conviction for simple battery under Jackson v. Virginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 1979. See, e.g., Babb v. State , 252 Ga. App. 518, 520 (4)-(5), 556 S.E.2d 562 (2001) (); Waters v. State , 252 Ga. App. 194, 196 (2), 555 S.E.2d 859 (2001) ().
2. Merchant next contends that the trial court deprived him of his right to a trial by jury. We disagree and conclude that the record supports the trial court's determination that Merchant knowingly, voluntarily, and intelligently waived his right to a jury trial.
The constitutional right to a jury trial may be waived only if the State proves beyond a reasonable doubt that a defendant did so knowingly, voluntarily, and intelligently. The State can do so by either (1) showing on the record that the defendant was cognizant of the right being waived; or (2) supplementing the record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly, voluntarily, and intelligently made. [An appellate court] review[s] a trial court's acceptance of a waiver of a constitutional right for clear error.
Agee v. State , 311 Ga. 340, 343–344 (2), 857 S.E.2d 642 (2021) (citations omitted). "One of the ways the state may prove this is by demonstrating from the record transcript that the defendant understood the rights he was waiving." Safford v. State , 240 Ga. App. 80, 82 (2), 522 S.E.2d 565 (1999).
In its order denying Merchant's motion for new trial, the trial court found that Merchant waived his right to a trial by jury because he: (1) was directly questioned in open court three separate times about the right to a trial by jury and declined to exercise his right each time; (2) had been advised by his trial counsel of his right to a jury trial but was "adamant" that he wanted to proceed with a bench trial; (3) was advised by the court of the maximum penalties for each count for which he was charged, as well as the State's pretrial offer — which he rejected, again stating that he wanted to proceed with a bench trial; and (4) "possesse[d] the requisite intelligence to make such a waiver" given his age and employment.3 The record supports these findings.
The transcript shows that, before trial, the court asked Merchant about his decision to proceed via a bench trial, as follows:
At this point, Merchant's trial counsel interjected that it was, in fact, Merchant's decision to proceed with a bench trial even though counsel had advised him "that a jury would probably be [his] best option." Merchant indicated that he understood his counsel's advice and expressed once more his desire to proceed with a bench trial "to get this over with." After the trial court ensured that Merchant was aware of the State's pretrial offer and the maximum penalties following a conviction, the case proceeded to a bench trial.
Merchant contends that the trial court's inquiry was insufficient to show that he knowingly, voluntarily, and intelligently waived his right to a jury trial. In support of his assertion, Merchant argues that the trial court did not educate him about issues such as the number of jurors empaneled or the requirement that any jury verdict be unanimous. However, we have declined to find that a defendant "must be informed by the trial court of all the complexities of the jury process" in order to waive the right to jury trial. Seitman v. State , 320 Ga. App. 646, 648, 740 S.E.2d 368 (2013) (emphasis omitted). Rather, we have held that "the record must affirmatively show that the defendant made the decision to waive his right to a jury trial, or at least that he ... agreed with the decision." Jackson v. State , 253 Ga. App. 559, 561, 560 S.E.2d 62 (2002). And, in this regard, Brown v. State , 277 Ga. 573, 573-574 (2), 592 S.E.2d 666 (2004) (citation and punctuation omitted). Here, the record establishes that the trial court asked Merchant if he understood and waived his right to trial by jury and accepted the waiver only after Merchant demonstrated that he was cognizant of the right being waived.
Merchant also claims that his trial counsel's advice about the right to a trial by jury was deficient; however, he did not file an enumeration of error on the issue. Therefore, to the extent Merchant seeks to raise a claim of ineffective assistance of trial counsel in this regard, we do not consider it. See OCGA § 5-6-40 ; Jones v. State , 332 Ga. App. 506, 507, n. 2, 773 S.E.2d 463 (2015) ; Smith v. State , 186 Ga. App. 303, 308 (3), 367 S.E.2d 573 (1988) () (citation and punctuation omitted).
Viewing the totality of the circumstances, we believe the State has met its burden of proving that Merchant made a voluntary, intelligent, and knowing waiver of his right to a jury trial. See Agee , 311 Ga. at 343-344 (2), 857 S.E.2d 642 ; Safford , 240 Ga. App. at 82 (2), 522 S.E.2d 565. Accordingly, we find no error.
3. In his third enumeration, Merchant contends the trial court erred by failing to advise him, before he testified, of his rights to remain silent and to not have his refusal to testify held against him.4 The trial court found that Merchant had been "properly advised of his right to remain silent, both by the Court and Trial Counsel, and that he alone elected to testify at trial after conferring with (and against the advice of) Trial Counsel." Because Merchant has failed to show that any of his rights were abridged, this enumeration presents no basis for reversal.
A review of the record shows that Merchant's trial counsel concluded his direct examination and the trial court took a lunch break during Merchant's cross-examination. When the parties returned from lunch, the State informed the...
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