Wallace v. State

• Decision Date: 21 October 2008
• Docket Number: No. A08A0957.,A08A0957.
• Citation: 669 S.E.2d 400,294 Ga. App. 159
• Parties: WALLACE v. The STATE.
• Court: Georgia Court of Appeals

669 S.E.2d 400

294 Ga. App. 159

WALLACE v. The STATE.

No. A08A0957.

Court of Appeals of Georgia.

October 21, 2008.

Jimmonique R.S. Rodgers, Fort Gordon, for appellant.

Denise D. Fachini, District Attorney, for appellee.

BARNES, Chief Judge.

A jury convicted Michael Wallace of rape, aggravated assault, and kidnapping with bodily injury, and he was sentenced as a recidivist to multiple consecutive life sentences. Wallace argues on appeal that his trial counsel was ineffective and the trial court erred in denying his motion to be present at the hearing on his motion for new trial; in curtailing his witness examinations during the motion hearing; and in sustaining the State's objection to his psychiatrist's affidavit. For the reasons that follow, we affirm the trial court.

1. We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions. Campbell v. State, 278 Ga. 839, 840(1), 607 S.E.2d 565 (2005). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict. Id.

Viewed in that light, the evidence at trial established that the victim was a nurse at the county jail where Wallace was incarcerated. Due to staffing shortages, the nurse habitually escorted prisoners to and from her examination room by herself. After someone stole cash from the nurse's purse, Wallace told her he knew who did it, and the nurse questioned him twice with others present or listening. The day before the incident, Wallace completed a form requesting medical care and said he had further information about the stolen money, but needed to speak with the nurse alone because a jail employee was involved.

The next day, the nurse escorted Wallace from his cell to her examination room and he told her he needed to look at pictures of new inmates to identify the thief. When the nurse went to her office next to the examination room to start her computer, Wallace followed. He held a knife to her face, forced her head into the kneehole beneath her desk, pulled down her pants, and raped her while digging his fingernails into her hips. An employee attempted to contact the nurse by radio regarding another inmate's medical crisis, so Wallace dragged her from under the desk and forced her to return to the examination room with him and respond to the call.

The inmate who was ill was placed in the adjacent medical holding room. The nurse went to the holding room but did not cry out immediately. She returned to the examination room but because she did not know if Wallace still had the knife, she silently motioned for the other employees to step into the office and followed them. With Wallace alone in the examination room, the victim made an outcry. The victim went to the emergency room, where a physician observed crescent-shaped wounds on the victim's hips from Wallace's fingernails, and obtained fluid from her that contained motile sperm. A sample collected from the victim contained Wallace's DNA. A GBI investigator found a homemade knife hidden in the victim's office with fingerprints on it that an expert identified as Wallace's.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Wallace guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Wallace argues that the trial court erred in refusing to allow him to attend his motion hearing to testify and assist his counsel in presenting his claim for ineffective assistance. He waived this claim, however, because he failed to file his amended motion for new trial claiming ineffective assistance until the day of the hearing.

Wallace's trial counsel filed a motion for new trial on the general grounds within 30 days of the verdict. The motions hearing was originally scheduled for October 24, 2007, but on November 5, 2007, the court reset it to November 26, 2007. On November 15, 2007, Wallace's new counsel moved to have Wallace present at the hearing to assist her. The trial court orally denied the motion.

At the hearing, Wallace's new counsel filed an amended motion for new trial claiming ineffective assistance of trial counsel for the first time, along with a "motion to clarify the court's action" on Wallace's request to be present at the hearing. The trial court explained that it denied Wallace's initial motion to be present at the hearing because Wallace had raised only the general grounds at that time, and his presence was not necessary to determine whether the State had presented sufficient evidence to convict him. The trial court further found his motion to be present untimely "under the Department of Corrections' rules" because he did not file his amended motion raising grounds requiring his presence until the day of the hearing.

While a defendant's constitutional right to confrontation does not generally extend to post-verdict procedures such as a motion for new trial, Backey v. State, 234 Ga.App. 265, 267(4), 506 S.E.2d 435 (1998), he has a "broader due process right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." (Punctuation omitted.) United States v. Boyd, 131 F.3d 951, 954 (11th Cir.1997). In this case, Wallace's presence at the hearing was not necessary to consider his initial motion for new trial on the general grounds, and therefore the trial court did not err in denying his initial motion to be present filed 11 days before the hearing. Pretermitting whether Wallace's presence during the ineffective assistance hearing would have contributed to the fairness of the proceeding, his failure to file the amended motion until the hearing date made it impossible for the court to obtain his presence. Wallace did not seek a continuance. He cannot complain of a result he caused, and induced error cannot form the basis of a due process claim. Hill v. State, 269 Ga.App. 459, 461(1), 604 S.E.2d 300 (2004). Wallace thus waived any due process claim he might have had regarding his absence from the hearing on his ineffective assistance claim.

3. Wallace claims the trial court erred in curtailing his cross-examination at the motion hearing of two employees at the jail where the rape occurred, testimony he asserts would establish the existence of "evidence his trial counsel failed to investigate and present at trial." Wallace's defense was going to be that he had a relationship with the nurse and that the sexual intercourse was consensual. In his opening statement, trial counsel outlined the defense, but after the State rested Wallace decided not to testify, leaving counsel with nothing to argue on that point during closing. Wallace now contends that his trial counsel should have called two of the jailers as witnesses to establish discrepancies in the nurse's story.

The burden is on the defendant claiming ineffectiveness of counsel to establish that his attorney's representation in specific respects fell below an objective standard of reasonableness, and that "a reasonable probability [exists] that, but for counsel's unprofessional errors, the result of the...