Watkins v. State

• Decision Date: 27 August 2021
• Docket Number: A21A1126
• Citation: 862 S.E.2d 720
• Parties: WATKINS v. The STATE.
• Court: Georgia Court of Appeals

862 S.E.2d 720

WATKINS

v.The STATE.

A21A1126

Court of Appeals of Georgia.

August 27, 2021

Nefertara Clark, for Appellant.

Leigh Ellen Patterson, Rome, Leah Cristina Mayo, for Appellee.

Mercier, Judge.

Ervin Watkins, Jr., appeals his conviction of aggravated battery,¹ claiming that the evidence was insufficient, that the State committed prosecutorial misconduct, and that the trial court erred by denying his motion for mistrial and in evidentiary rulings. Watkins also argues that he received ineffective assistance of counsel. For the following reasons, we affirm.

1. Watkins claims that the evidence was insufficient to support his conviction. Construed to support the jury's verdict, see Norton v. State , 293 Ga. 332, 333, 745 S.E.2d 630 (2013), the evidence showed that on October 13, 2018, the victim rode a bicycle to a gas station, where he was picking up cans outside. Angela Watkins, Watkins's mother, drove into the parking lot of a neighboring business, parked her vehicle and walked toward Christopher North. North and Angela then walked together, past the entrance of the gas station, and towards the victim. As they approached the victim, Watkins drove into the gas station parking lot, exited his vehicle and approached the group. After Watkins reached the group, he immediately began to hit the victim. Watkins and North hit the victim repeatedly and continued to do so after the victim fell to the ground. At one point, the victim stood up, but Watkins picked him up, and slammed the victim back to the ground. The attack lasted about one minute, and then Watkins, North and Angela left the area.

The victim's treating emergency room physician testified that the victim had facial swelling and a fractured collarbone. The physician opined that the victim's "busted nose" and fractured collarbone were both consistent with a physical altercation.

The victim testified that after the attack, while he was in jail on a methamphetamine-related charge, Watkins bonded him out, apologized, bought him a meal, and offered to pay the victim $200 to drop the charges against him. Watkins took the victim to a library and prepared an affidavit for the victim's signature. The affidavit stated that the incident "was blown out of proportion," that the victim was on methamphetamine at the time of the attack and that the victim would "like to make it known that [he does] not want to go forward with this prosecution."

Watkins took the victim to the sheriffs office, where the victim signed the affidavit and it was notarized. Watkins then presented the affidavit to an investigator with the district attorney's office. The investigator separated Watkins and the victim, and the victim told the investigator that he did not want to drop the charges.²

Watkins was indicted and tried with North, his co-defendant. At trial, surveillance videos of the attack and the surrounding area were played for the jury. The videos do not contain audio.

Watkins called Belinda Jones as a witness, who testified that on the day in question she was walking her dog near the gas station when she saw the victim ride by on a bicycle. As he rode past her, the victim appeared shaky and rode into the road, where a car, driven by Angela, narrowly avoided hitting him and Angela honked her car horn. The victim used a profane racist slur against Angela and said "I'll kill you" while continuing to ride to the gas station.

Angela testified similarly as Jones. After her interaction with the victim while he was riding his bicycle, she parked at a laundromat near the gas station. She then saw North, a family friend, and asked him to accompany her into the gas station. As they approached the front door, the victim, who was near the entrance, said that "b**** would like to hit me," while identifying Angela's race. Watkins then joined the group, and the victim moved "like he was going for [Watkins.]" Then "the fight started."

Watkins testified that he happened to arrive at the gas station as his mother was walking to the front door with North. He claims that it appeared like the victim, who Watkins had never met before, "was fixing to do something to [his mother]" and the fight ensued.

The jury found North not guilty of aggravated battery, but guilty of battery, and Watkins guilty of both offenses. The trial court denied Watkins's motion for new trial.

(a) Watkins argues that the evidence was insufficient to support his conviction of aggravated battery, which was based on his indictment for rendering a member of the victim's body useless. See OCGA § 16-5-24 (a).

The victim's treating physician testified that the victim's fractured collarbone would limit the movement of the victim's arm for four to six weeks, and the victim testified that it restricted movement of his arm. "The bodily member need not be rendered permanently useless, and even the temporary reduced use of a bodily member may be sufficient to render it useless under the aggravated battery statute." Ganas v. State , 245 Ga. App. 645, 647 (1) (b), 537 S.E.2d 758 (2000) (footnotes omitted) (evidence of victim's broken finger

was sufficient evidence of rendering a member of the victim's body useless). The evidence authorized the jury to find that Watkins caused bodily harm to the victim by rendering his arm useless by fracturing his collarbone. See Dean v. State , 313 Ga. App. 726, 727 (1), 722 S.E.2d 436 (2012) (sufficient evidence of rendering the victim's hand useless when defendant fractured victim's arm near the hand).

(b) Watkins also argues that the evidence was insufficient to support his battery conviction. The indictment charged that Watkins caused visible bodily harm to the victim. See OCGA § 16-5-23.1 (a). The physician testified that Watkins's nose was "busted," and video of the bloodied victim was played at the trial. There was sufficient evidence to support Watkins's conviction. See Johnson v. State , 260 Ga. App. 413, 414 (1), 579 S.E.2d 809 (2003) (there was ample evidence of battery when the victim had scrapes and bruises on her neck consistent with being choked, along with the victim's testimony regarding the attack).

2. Watkins argues that the trial court erred by denying his motion for mistrial. While the prosecutor was questioning a police officer on direct examination, the prosecutor asked "[h]ow did you conclude your investigation?" The officer replied, "Mr. Watkins failed to come to the police department and speak with me." Watkins's counsel objected and moved for a mistrial. The trial court denied the mistrial but gave a curative instruction.³ Watkins argues that the officer's testimony violated his right to remain silent.

"Whether to grant a mistrial is within the trial court's discretion, which an appellate court will not disturb unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial." Jones v. State , 305 Ga. 750, 755 (3), 827 S.E.2d 879 (2019) (citation and punctuation omitted). Here, the officer's comment was non-responsive and made in passing. "Further, juries are presumed to follow curative instructions in the absence of proof to the contrary." Id. Watkins has provided no evidence that the jury disregarded the court's instruction, and therefore this allegation of error cannot be sustained. See id.

3. Watkins claims that the trial court erred in evidentiary rulings by limiting his cross-examination of the victim. "Like most questions about the admissibility of evidence, the scope of cross-examination is committed in the first instance to the sound discretion of the trial court, and we review a limitation of cross-examination only for an abuse of that discretion." Lucas v. State , 303 Ga. 134, 136-137 (2), 810 S.E.2d 490 (2018).

(a) Watkins argues that the trial court erred by limiting his questioning of a police officer regarding whether the victim had told him that "meth made him do crazy things." However, earlier in the trial the victim admitted that he had previously told police officers that he acted "crazy" while under the influence of methamphetamine. As such, it was a prior consistent statement.

A prior consistent statement will be admissible only if:

(1) the witness’ credibility has been attacked, by some means other than impeachment by evidence of character or prior convictions; and (2) the prior statement logically rebuts that attack. Further, if the attack is by a charge of recent fabrication or improper influence or motive, a prior statement may logically rebut the attack only if it was made before the alleged fabrication, influence, or motive came about.

McGarity v. State , 311 Ga. 158, 165 (3), 856 S.E.2d 241 (2021) (punctuation omitted); see OCGA § 24-6-613 (c). Our review of the record reveals that while the victim's credibility was attacked, the prior consistent statement did not logically rebut that attack. Here, the victim admitted to the very statement at trial, and no other evidence was introduced to show that methamphetamine did not make the victim "crazy." As such, the trial court did not abuse its discretion by holding that the prior consistent statement was inadmissible.⁴

(b) Watkins also argues that the trial court erred by limiting his cross-examination of the victim regarding potential bias. While on cross-examination, defense counsel asked the victim questions about his prior arrest "for meth," and the victim responded that he was on probation. Defense counsel then asked: "Are you concerned that ... since the State is asking you to testify, that might have an effect on your probation?" The State objected, and the trial court sustained the objection.

"[A] defendant must be allowed to cross-examine a witness about punishment that the witness may have avoided as a result of a deal with the State for his testimony in the prosecution of the defendant." Hill v. State , 310 Ga. 180, 190-191 (7), 850 S.E.2d 110 (2020) (citation and punctuation omitted). While a trial court has discretion in limiting cross-examination, "[i]t is clear that the...