Sutton v. State

• Decision Date: 11 March 2020
• Docket Number: A19A2433
• Parties: SUTTON v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 399

841 S.E.2d 2

SUTTON

v.The STATE.

A19A2433

Court of Appeals of Georgia.

March 11, 2020

Jeffrey L. Grube, Centerville, for Appellant.

George Herbert Hartwig III, District Attorney, Alicia Deck Gassett, Assistant District Attorney, for Appellee.

Markle, Judge.

Following a jury trial, Melvin Andrew Sutton was convicted of aggravated assault ( OCGA § 16-5-21 ). Sutton appeals from his conviction and the denial of his motion for new trial, challenging the sufficiency of the evidence, and contending that his trial counsel rendered ineffective assistance by failing to (1) conduct a reasonable investigation and adequately interview witnesses, (2) object to the testimony of an unsworn witness, and (3) introduce certain exculpatory evidence. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that, upon returning home after running errands with their son, Sutton and the victim argued in their front yard.

Sutton began hitting the victim and strangling her. She fell back into her van, and he continued to strangle her until she passed out. Their son attempted to intervene because it appeared that the victim could not breathe and had stopped moving; but he was unsuccessful, and Sutton began choking the victim again. The victim honked the horn to try to draw attention to the situation, managed to fight Sutton off, and was able to escape with her son and call 9-1-1. She met the police at a nearby parking lot, and she and her son gave statements. The responding officer observed that the victim had red marks and scratches on her neck, as if someone had choked her, and that one of her teeth had been knocked out. The officer took photographs of her injuries, and these were admitted at trial and published to the jury. After Sutton was arrested, the victim signed an affidavit not to prosecute because she was too frightened to testify against Sutton. Nevertheless, the victim testified at trial.

The jury convicted Sutton of aggravated assault. Sutton filed a motion for new trial, as amended, contending that the evidence did not support the verdict, and that he received ineffective assistance of counsel on a number of grounds, including those raised before this Court. Following a hearing, the trial court denied the motion, and this appeal followed.

1. Sutton first argues that the evidence was insufficient to support his conviction for aggravated assault because the State failed to prove the necessary element that he used his hands as a deadly weapon. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Thus, in evaluating the sufficiency of the evidence, we do not assess witness credibility or weigh the evidence, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. And the verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

(Citations and punctuation omitted.) Johnson v. State , 351 Ga. App. 690, 692, 832 S.E.2d 676 (2019).

Turning to the specific charge as set forth in the indictment, OCGA § 16-5-21 (a) (3) provides that "[a] person commits the offense of aggravated assault when he ... assaults ... [w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation[.]" Strangulation is defined as "impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person." OCGA § 16-5-19 (11).

Sutton points to the absence of evidence of bruising, broken bones, or abrasions suffered by the victim and notes that no medical or dental records were introduced at trial. Sutton disregards the officer’s testimony to the contrary: that he observed abrasions on the victim’s leg and on her neck. Moreover, Sutton overlooks the necessary element of strangulation as set forth in the plain language of OCGA §§ 16-5-21 (a) (3) and 16-5-19 (11), as well as in the indictment.¹ See Ledbetter v. State , 349 Ga. App. 154, 157 (1), 825 S.E.2d 530 (2019) ("[W]hen the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.") (citations and punctuation omitted).

Here, there is ample evidence that Sutton strangled the victim, as defined by OCGA § 16-5-19 (11). The victim testified that Sutton put his hands around her neck, that she could not breathe, and that the pressure caused her to pass out,² as well as to clench her teeth so tightly that it broke one of the teeth on her denture plate. Both the victim’s son and the responding officer corroborated her testimony. And, the jury was able to view the photographs of the victim’s neck. Thus, there is some competent evidence to satisfy the strangulation element of the aggravated assault charge. OCGA § 16-5-21 (a) (3) ; see Johnson , 351 Ga. App. at 692, 832 S.E.2d 676.

2. Sutton next argues that trial counsel rendered ineffective assistance by failing to (1) conduct a reasonable investigation and adequately interview witnesses, (2) object to the testimony of an unsworn witness, and (3) introduce certain exculpatory evidence.³

We disagree.

To succeed on a claim that counsel was constitutionally ineffective, [Sutton] must show both that his attorney’s performance was deficient, and that he was prejudiced as a result. Strickland v. Washington , 466 U. S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong of this test, counsel’s performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms. And under the second prong, prejudice is demonstrated only where there is a reasonable probability that, absent counsel’s errors, the result of the trial would have been different. A "reasonable probability" is defined as a probability sufficient to undermine confidence in the outcome. Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong. And although both the performance and prejudice components of an ineffectiveness inquiry involve mixed questions of law and fact, a trial court’s factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous.

(Citations and punctuation omitted.) Green v. State , 302 Ga. 816, 817-818 (2), 809 S.E.2d 738 (2018). Bearing these principles in mind, we address each of Sutton’s claims of ineffective assistance of counsel in turn, finding no merit to them.

(a) Sutton first argues that his trial counsel rendered ineffective assistance by failing to conduct a reasonable investigation and to thoroughly interview witnesses. Specifically, Sutton takes issue with trial counsel’s failure to interview the responding officer, his probation officer, the victim, and potential character witnesses. We are not persuaded.

"It is trial counsel’s obligation to conduct a reasonable and thorough pretrial investigation, including locating and interviewing potential witnesses." State v. Walker , 327 Ga. App. 304, 307, 758 S.E.2d 836 (2014).

Pretermitting whether trial counsel’s performance was deficient in this regard,⁴ Sutton cannot show he was prejudiced by any such deficiency. "To show prejudice on a claim that trial counsel failed to adequately investigate the case, [Sutton] had to at least make a proffer as to what additional investigation would have uncovered, and not merely speculate that such information exists and would have made a difference." (Citation and punctuation omitted.) Lupoe v. State , 300 Ga. 233, 241 (2) (b), 794 S.E.2d 67 (2016). However, at the motion for new trial hearing, Sutton made no proffer of what these potential witnesses would have said. He has thus failed to show that the outcome of the trial would have been different, and cannot satisfy the prejudice prong of Strickland . Id. ; Colbert v. State , 345 Ga. App. 554, 556-557 (2), 813 S.E.2d 777 (2018).

(b) Sutton next claims that trial counsel was ineffective because he failed to object to the victim’s son’s unsworn testimony. We disagree.

At trial, the victim’s son, who was 11 at the time, was asked by the prosecutor if he knew the difference between the truth and a lie, and if he swore to tell the truth, to which he responded in the affirmative. Pretermitting whether this colloquy was sufficient to constitute sworn testimony pursuant to OCGA §§ 24-6-603 and 17-8-52,⁵ Sutton has not shown that he was prejudiced by trial counsel’s failure to object to the manner in which the son was sworn or to his subsequent testimony.

Here, the victim alone provided strong, if not overwhelming, evidence of Sutton’s guilt.⁶ And, although her son was the only eyewitness to the altercation, both his testimony and that of the responding officer confirmed the victim’s testimony. Moreover, the son’s testimony was cumulative of the victim’s properly admitted testimony in all respects. Sutton thus cannot show that there was a reasonable probability that the outcome of the trial would have been different had trial counsel objected to the son’s testimony.

See Wilson v. State , 297 Ga. 86, 88 (2), 772 S.E.2d 689 (2015) ("The failure of trial counsel to object to such cumulative evidence does not support a claim of ineffective assistance of counsel.").

(c) Finally, Sutton contends that his trial counsel was ineffective for failing to submit to the jury the entire affidavit not to prosecute, and to seek to admit into evidence the...