Pattarozzi v. State

• Decision Date: 03 March 2021
• Docket Number: A20A1994
• Citation: 358 Ga.App. 675,856 S.E.2d 51
• Parties: PATTAROZZI v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 675

856 S.E.2d 51

PATTAROZZI

v.The STATE.

A20A1994

Court of Appeals of Georgia.

March 3, 2021

Steven Alexander Miller, for Appellant.

Christopher Allen Arnt, Herbert E. Franklin, La Fayette, Jessalyn Dean Barrett, for Appellee.

Phipps, Senior Appellate Judge.

A jury convicted Terry Monty Pattarozzi of two counts of failure to register as a sex offender, and the trial court denied his motion for a new trial. On appeal, Pattarozzi contends that his trial counsel rendered ineffective assistance by failing to object to four exhibits going out with the jury. For the following reasons, we affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004).

The record shows that, as the result of a 1993 conviction, Pattarozzi was required to register as a sex offender with the Chattooga County Sheriff's Office. On December 13, 2018, a deputy in the Chattooga County Sheriff's Office received information regarding Pattarozzi. Based on this information, the deputy began an investigation into Pattarozzi, first by pulling his file to see if any new addresses had been added, then by attempting unsuccessfully to make contact with Pattarozzi and his wife by phone. On December 17, 2018, the deputy went to Pattarozzi's house. When she arrived, no one was home. There were no vehicles in the driveway, and there was no sign of the dog that had always barked when the deputy had previously been to Pattarozzi's house. The next day, the deputy, who had never had difficulty reaching Pattarozzi before, was again unable to contact Pattarozzi. The information that she had received and her inability to contact Pattarozzi led the deputy to believe that he had absconded. The deputy applied for and received a warrant for Pattarozzi's arrest on December 18, 2018.

Pattarozzi called the deputy on December 27, 2018, asking whether there was a warrant for his arrest. She told him that she could not give him that information over the phone, but he could come into the office with identification to find out. Pattarozzi was arrested at his house later that afternoon. On December 31, 2018, after he was released from jail, Pattarozzi went to the deputy's office and filled out a change of employment form. On the change of employment form, Pattarozzi stated that he had changed his employment on September 30, 2018. Pattarozzi told the deputy that he had been in Colorado starting a business.

Pattarozzi was charged with two counts of failure to register as a sex offender. In the first count, Pattarozzi was charged with failing to give the Chattooga County Sheriff's Office updated information regarding his address within 72 hours after his address information changed. In the second count, he was charged with failing to provide updated information regarding his place of employment within 72 hours after his employment information changed.

The evidence introduced by the State at trial included an annual verification form sent to Pattarozzi notifying him that he was due to re-register with the Chattooga County Sheriff's Office within 72 hours prior to his September 21 birthday (exhibit 3); a Georgia sex offender registration notification form with a checklist initialed and signed by Pattarozzi (exhibit 4); the warrant for Pattarozzi's arrest (exhibit 5); and the change of employment information form that Pattarozzi completed on December 31, 2018 (exhibit 6). The affidavit supporting the arrest warrant included the following statement: "Subject is registered at the listed address and has not been located there in over 72 hours. Subject was located by Colorado DOC parole [division] to be residing at 1362 Wolff Street, Denver, CO 80204. Subject failed to [register] this address."

The jury found Pattarozzi guilty on both counts. He filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

On appeal, Pattarozzi argues that his trial counsel rendered ineffective assistance because he failed to object to exhibits 3, 4, 5, and 6 going out with the jury in violation of the continuing witness rule.

To establish that his trial counsel was constitutionally ineffective, Appellant must prove both deficient performance by counsel and resulting prejudice. To show that his lawyer's performance was deficient, Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. This is no easy showing, as the law recognizes a ‘strong presumption’ that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

Even when a defendant has proved that his counsel's performance was deficient in this constitutional sense, he also must prove prejudice by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Rather, Appellant must demonstrate a ‘reasonable probability’ of a different result, which, the United States Supreme Court has explained, is a probability sufficient to undermine confidence in the outcome.

The reviewing court need not address both components of the inquiry if the defendant makes an insufficient showing on one. In all, the burden of proving a denial of effective assistance of counsel is a heavy one, and Appellant has failed to carry that burden.

Brown v. State , 302 Ga. 454, 457 (2), 807 S.E.2d 369 (2017) (citations and punctuation omitted). See also Jones v. State , 318 Ga. App. 342, 346 (3), 733 S.E.2d 400 (2012) (defendant must show by clear and convincing evidence that the performance of his lawyer was not within the range of reasonable professional lawyering).

Whether a trial attorney renders constitutionally ineffective assistance is a mixed question of law and fact. "The proper standard of review requires that we accept the [trial] court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts." Head v. Carr , 273 Ga. 613, 616 (4), 544 S.E.2d 409 (2001). After reviewing Pattarozzi's claims in accordance with these standards, we conclude that he has not met his burden of demonstrating that his trial counsel was deficient.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.

Rainwater v. State , 300 Ga. 800, 803 (2), 797 S.E.2d 889 (2017) (citation omitted).

The continuing witness rule prohibits writings from going out with the jury when the evidentiary value of such writings depends on the credibility of the maker. Documents that are prohibited by the continuing witness rule from going out with the jury include answers to written interrogatories, written dying declarations, and signed statements of guilt. These documents, which generally contain their makers’ assertions of purported truths, are ascribed evidentiary value only to the extent that their makers are

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