Pierre v. State

• Decision Date: 21 April 2021
• Docket Number: A21A0200
• Citation: 360 Ga.App. 95,858 S.E.2d 532
• Court: Georgia Court of Appeals
• Parties: PIERRE v. The STATE.

360 Ga.App. 95

858 S.E.2d 532

PIERRE

v.The STATE.

A21A0200

Court of Appeals of Georgia.

April 21, 2021

Reconsideration Denied June 25, 2021

Jason Michael McLendon, Atlanta, for Appellant.

Pamela M. Bettis, Adelle Petersen, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Adam Pierre, III, guilty of family violence simple battery and criminal trespass, but not guilty of family violence battery. Pierre filed a motion for new trial, which he amended four times. Following the trial court's denial of Pierre's motion for new trial, he filed this appeal. On appeal, Pierre contends that he received ineffective assistance of trial counsel in a number of respects. For the following reasons, we affirm Pierre's convictions.

The record shows that Pierre and the victim are married, and, during their tumultuous marriage, Pierre often hit his wife in the face. Two days before the incident at issue, Pierre told the victim he wanted a divorce, so she moved into the bedroom and locked herself in. She also transferred $1,200.00 from the couple's joint business account to her personal account. On December 12, 2017, Pierre noticed that the victim had transferred the money, and, while the victim was on the phone talking with her daughter, Pierre began banging on the victim's door, demanding that she "open this motherf***ing door." The victim opened the door, and Pierre demanded that she put the money back. When the victim responded that she did not have the money, Pierre said, "I'm going to beat your ass tonight." Pierre grabbed the victim's phone, and, when it would not shut off, he threw it on the bed. The victim backed up to the other side of the bed and begged Pierre not to hit her, but Pierre grabbed her and began to punch her. The victim covered her face with her arm, and she was struck in the arm. She was so afraid that she soiled herself, but Pierre told her he did not care "if [she] shit all over [herself]."

Pierre then grabbed the victim's phone and threw it against the corner of the bed footboard, shattering the screen. Pictures of the broken phone and glass on the carpet were introduced into evidence. Pierre told the victim to get her "shit" and "[g]et the f*** out of my house." As the victim was cleaning herself off, her daughter called Pierre's phone, and Pierre told the daughter that her mother was a thief. The victim yelled for her daughter to call 9-1-1, grabbed some belongings, and left the house while Pierre shouted at her. She fled to a neighbor's house, where she waited for police to arrive.

The victim's daughter testified that Pierre was physically and emotionally abusive to the victim. According to the daughter, she was on the phone with the victim when she heard the victim scream for Pierre not to hit her. Then the call dropped. The daughter tried to call back the victim several times, but the calls kept going to voicemail, so she dialed 9-1-1. The daughter finally reached Pierre on his phone, and he told her that the victim could not talk because she was busy crying, but the daughter kept Pierre talking and insisted that she speak with the victim. The daughter believed that as long as Pierre was talking to her, he would not hit the victim. The daughter called 9-1-1 again when the victim screamed for her to call 9-1-1. Both 9-1-1 calls were played for the jury.

Pierre testified that he was angry and banged on the victim's door to confront her about the money she withdrew. He also acknowledged that the victim was on the phone when they had their argument, that the victim soiled herself during the argument, and that the victim's daughter called him on his phone to speak with the victim. However, according to Pierre, the victim's phone was cracked prior to the incident, he was five feet away from her when she said, "don't hit me[,]" and she was walking out of the apartment when she screamed, "call 9-1-1." Pierre testified that he immediately left the room when the victim said "don't hit me" because he realized she was trying to get a reaction from someone on the phone, and he did not know what happened next. Pierre's defense was that his wife fabricated the allegations against him to gain leverage in their divorce.

Based on this evidence, the jury found Pierre guilty of family violence simple battery and criminal trespass, but not guilty of family violence battery. This appeal followed the denial of Pierre's motion for new trial.

In his sole enumeration of error, Pierre asserts that he received ineffective assistance of trial counsel because his attorney failed to (1) object to the admission of a prior hearsay statement bolstering the victim's credibility, (2) object to an allegedly unlawful comment on his silence, and (3) investigate the case and introduce impeachment evidence. Pierre further contends that "the collective effect from trial counsel's deficient performance prejudiced the verdict[.]"

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, 457-458 (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). Moreover, the Supreme Court of Georgia has held that an acquittal on one or more counts "is a relevant factor which strongly supports the conclusion that the assistance rendered by the attorney fell within that broad range of reasonably effective assistance." Moon v. State , 288 Ga. 508, 516 (9), 705 S.E.2d 649 (2011) (citation and punctuation omitted). Thus, Pierre's acquittal on the charge of family violence battery is a strong indicator that his trial counsel was effective. After reviewing Pierre's claims in accordance with these standards, we conclude that Pierre has not met his burden of demonstrating that his trial counsel was ineffective.

We first note that Pierre's counsel testified at the motion for new trial hearing that at the time of the hearing he had performed approximately 40 jury trials, and one-fourth of them had involved batteries. Trial counsel explained that his strategy for Pierre's defense was to use "brute force, he said, she said," which he had used as a successful strategy in other battery cases. In addition, the transcript shows that trial counsel subjected the State's witnesses to a thorough and sifting cross-examination, made appropriate objections, and succeeded on a motion in limine.

1. We begin with Pierre's argument that his trial counsel performed deficiently by failing to object to the admission of a

prior hearsay statement bolstering the credibility of the victim. Specifically, Pierre contends that his trial counsel should have objected to the admission of the victim's written statement given to police because the victim's veracity had not been attacked, and, thus, the prior consistent statement was inadmissible. We find no error.

Prior consistent statements generally are admissible only where the witness's credibility has been attacked or to rebut a charge of recent fabrication or improper influence or motive. OCGA § 24-6-613 (c). It is undisputed that these issues were not present in this case. However, trial counsel testified at the motion for new trial hearing that he did not object to the introduction of the victim's written statement because it was introduced at the end of the victim's direct testimony and he wanted to use it to impeach the victim. According to trial counsel, he likes to have an "anchor" to lock the witness into their statements so "even if they testified exactly to [the written statement] on direct, maybe on cross I can get them to have their story unravel. So, they're locked in on this written statement. And if they deviate on cross, then I can attempt some impeachment there." In fact, trial counsel used the statement during the victim's...