Oliver v. State

• Decision Date: 02 May 2016
• Docket Number: No. A16A0096.,A16A0096.
• Citation: 337 Ga.App. 90,786 S.E.2d 701
• Parties: OLIVER v. The STATE.
• Court: Georgia Court of Appeals

337 Ga.App. 90

786 S.E.2d 701

OLIVER

v.The STATE.

No. A16A0096.

Court of Appeals of Georgia.

May 2, 2016.

Reconsideration Denied May 13, 2016.

Howard Walton Anderson III, for Appellant.

Brian M. Rickman, Dist. Atty., James E. Staples Jr., George R. Christian, Asst. Dist. Attys., for Appellee.

PETERSON, Judge.

After a jury trial, Stanley James Oliver was convicted of kidnapping with bodily injury, rape, and aggravated assault of his former girlfriend, F.W. He appeals the denial of his motion for a new trial, arguing that his counsel was ineffective for (1) failing to subpoena Oliver's telephone records for potential use at trial; (2) opening the door to admission of evidence of Oliver's acquittal on prior charges; and (3) failing to request a limiting instruction on that prior bad acts evidence. Because trial counsel's questioning that opened the door to admission of Oliver's prior acquittals did not constitute deficient performance, and because the other complained-of actions by defense counsel did not create a reasonable probability of a different outcome, we affirm.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga.App. 224, 224, 496 S.E.2d 292 (1998) (citation omitted). So viewed, F.W. had been romantically involved with Oliver but broke off contact with him after he became violent with her on at least one occasion in February 2008. On March 8, 2008, Oliver came to F.W.'s mother's house, where F.W. was staying, and she went with him to his home. F.W. testified that Oliver indicated he “wanted to talk” and “work things out” but she went with him because she was scared. She testified that she remained at the house until March 12, smoking methamphetamine with Oliver but having no food or drink during that time. Oliver took the battery from F.W.'s phone. Shortly after F.W. arrived at Oliver's house, two visitors came over, but F.W. didn't seek help from them because she “didn't think that it was gonna get as bad as it got.” The following day, however, Oliver began beating her, hitting her with his fists, a strap and a fireplace poker, ripping out some of her hair, and threatening to kill her. When F.W. would fall off a couch, he would hit her again and tell her to get back on the couch and not move. At one point, F.W. approached the door to the home, and Oliver stabbed her in the leg with a knife. On her last night in the home, F.W. and Oliver had sexual intercourse; she testified that she did not want to but “thought that was the only way I was gonna get to leave.” On March 12, while Oliver was in the bathroom, F.W. saw her mother's car in the driveway and left with her.

F.W. went to a hospital, where she underwent a medical examination and received treatment. The sheriff's deputy who was dispatched to the hospital testified that F.W. was “contused from head to foot,” with a large patch of hair having been pulled out of her scalp, a puncture wound in her thigh, and various lacerations and abrasions over her body. A Georgia Bureau of Investigation agent took pictures of F.W.'s injuries that were entered into evidence. Agents who investigated the scene at Oliver's home recovered a fire poker, leather strap and knife. They also found a large clump of hair that was shown to have been forcibly removed from F.W.'s head.

Oliver defended himself through extensive cross-examination of F.W., testimony by friends, and his own testimony. Several defense witnesses gave testimony to the effect that they had seen F.W. during the time period in question and she did not appear held against her will. Defense witnesses testified in particular that during that time, F.W. mentioned plans to marry Oliver and had several personal items such as toiletries at his home.

Oliver testified that on March 8, 2008, he telephoned F.W., invited her to go out to a bar, and picked her up near her mother's home, per her instructions. Oliver testified that F.W. never asked to be let out of the house and the two left his house at least once during her visit. He denied stabbing her with the knife, hitting her with his fists or the fire poker or strap that were in evidence, or pulling out her hair. Oliver said that at one point F.W. left the house and came back looking as though she had been in a fight and suggested that her injuries were caused by another man. Oliver declined to dispute that the clumps of hair found in his home belonged to F.W. He said he and F.W. had consensual sex multiple times during her visit and denied that he raped her.

Oliver was convicted on all counts at trial. He moved for a new trial, arguing, among other things, that the trial judge had erred in allowing F.W. to testify about Oliver's earlier acquittal on similar crimes against another person. The judge who considered his motion for new trial (not the judge who presided over the trial)¹ granted Oliver a new trial on that ground. We reversed, with the clarification that our ruling did not affect the motion judge's ability to consider remaining issues raised in the motion for new trial. State v. Oliver, 326 Ga.App. 759, 755 S.E.2d 293 (2014). The motion judge subsequently considered, and rejected, Oliver's claims of ineffective assistance of counsel. That is the ruling before us now.

In order to prevail on an ineffective assistance of counsel claim, Oliver “must show that trial counsel's performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel's deficient performance.” Scott v. State, 290 Ga. 883, 889(7), 725 S.E.2d 305 (2012) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In reviewing a claim of ineffective assistance, the appellate courts give deference to the lower court's factual findings and credibility determinations unless clearly erroneous, but review a lower court's legal conclusions de novo. Grant v. State, 295 Ga. 126, 130(5), 757 S.E.2d 831 (2014) (citation omitted).

1. Oliver first argues that his trial counsel's failure to subpoena Oliver's telephone records for possible use at trial amounted to ineffective assistance of counsel. We disagree.

The phone records in question apparently would have shown that F.W. made telephone calls to Oliver in the days leading up to the kidnapping. The records also appear to show calls back and forth between the two on March 8, the day F.W. says Oliver picked her up at her mother's home. At the motion for new trial hearing, trial counsel testified that those records would have been helpful to rebut F.W.'s testimony that she had not had “consensual contact” with Oliver in the weeks leading up to the incident, did not call him or answer his calls, and was surprised when he showed up at her mother's home. The defense also suggests on appeal that the State's case would have been rebutted by phone record entries showing that Oliver placed calls on his phone while outside of his home during the weekend that F.W. claimed she was being involuntarily held there.

Although counsel introduced Oliver's cell phone into evidence at trial, he did not pursue any questioning about its call log, apparently because the battery was dead. The motion judge rejected Oliver's claim of ineffectiveness on this basis, finding that counsel's performance in failing to subpoena the records was not deficient, but strategic, in the light of trial counsel's testimony that he thought the defense had “overwhelming evidence” that Oliver and F.W. were “living as man and wife.”

The motion judge's conclusion that trial counsel made a strategic decision not to use the records because he had enough other evidence to make the defense case is undermined by trial counsel's apparent failed attempt to present evidence about the phone calls using Oliver's phone itself. But, assuming without deciding that trial counsel's performance was deficient in this regard, we find that there is not a reasonable probability that the outcome of the case would have been different had counsel obtained and introduced the records. Although F.W.'s credibility was an important issue at trial, the considerable physical evidence corroborating F.W.'s testimony—and rebutting Oliver's—kept this case far from the kind of “he said, she said” credibility contest in which we might find prejudice. See State v. Crapp, 317 Ga.App. 744, 748(2), 732 S.E.2d 806 (2012) (failure to introduce available documents corroborating defendant's testimony prejudicial where trial was “pure credibility contest” with State's case “resting largely upon the identification testimony of one witness”). F.W. presented at the hospital with bruising all over her body, a large clump of hair missing, and a wound in her leg, supporting her claim that Oliver had assaulted her, including stabbing her when she tried to leave his home. Police found at Oliver's home clumps of F.W.'s hair, and the items she claimed Oliver had assaulted her with. This is not a “he said, she said” case, but a “he said, she said, with a lot of physical evidence corroborating what she said” case. See generally Wallace v. State, 294 Ga. 257, 260(3)(b), 754 S.E.2d 5 (2013) (considering strength of State's case in evaluating whether prejudice is shown).

Once the jury concluded, based in part on this physical evidence, that Oliver was lying when he denied assaulting F.W. or keeping her in his home, it also was entitled to disbelieve his claim that their sexual activity was consensual. Although the phone records might have tended to show that events did not transpire exactly as F.W. had claimed—i.e., that she may have been in contact with him more than she admitted, or that Oliver left the home at some point during the time she was staying at his house—they did not refute the core claims at issue: that Oliver had assaulted and raped F.W. and, for at least some period...