Holloman v. State

744 S.E.2d 59, 293 Ga. 151, 2013 Fulton County D. Rep. 1702, 2013 WL 2372297, 2013 Ga. LEXIS 501
CourtSupreme Court of Georgia
DecidedJune 3, 2013
DocketS13A0542
StatusPublished
Cited by16 cases

This text of 744 S.E.2d 59 (Holloman v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holloman v. State, 744 S.E.2d 59, 293 Ga. 151, 2013 Fulton County D. Rep. 1702, 2013 WL 2372297, 2013 Ga. LEXIS 501 (Ga. 2013).

Opinion

Melton, Justice.

Following a jury trial, Howard Holloman, Jr., appeals his conviction for malice murder, felony murder, aggravated battery, aggravated assault, and cruelty to children, contending that the trial court gave the jury an incomplete instruction on aggravated assault, certain text messages were improperly admitted into evidence, trial counsel rendered ineffective assistance, and improper impeachment evidence was admitted during the hearing on his motion for new trial.1 We affirm.

1. In the light most favorable to the verdict, the record shows that, on the evening of August 24, 2009, Eva Rodney left her six-month-old son, Nathaniel, with Holloman. Holloman was alone with Nathaniel until the next morning, when Rodney arrived in response to a message from Holloman that Nathaniel would not take his bottle. Rodney found Nathaniel, who appeared to be asleep, in his swing in the basement. When Rodney picked up Nathaniel, she discovered that he was unresponsive, gurgling, and turning blue. Rodney frantically dialed 911, and the 911 operator told Rodney to lay Nathaniel on the floor and to perform CPR. When emergency personnel arrived at the home, they discovered that Nathaniel did not have a pulse. After being rushed to the hospital, Nathaniel was declared dead shortly after arriving. A subsequent autopsy revealed various severe injuries throughout the child’s body, including bruises on his face and torso, injury to his mouth, and tears in the tissue of his liver and heart. Based on the information obtained during the autopsy, the [152]*152State’s medical examiner concluded and testified that Nathaniel died from blunt force injury to the torso and that the manner of his death was homicide.

This evidence was sufficient to enable the jury to find Holloman guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Holloman contends that the trial court gave the jury an incomplete charge on the crime of aggravated assault because the charge omitted a definition of simple assault. The trial court charged: “[A] person commits the offense of aggravated assault when the person assaults another person with any object, device, or instrument that when used offensively against a person is likely to or actually does result in serious bodily injury.” Because Holloman did not object to the trial court’s charge before the jury retired to deliberate, we must review his contention on appeal for “plain error.” The plain error test adopted in State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011), authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. See Terry v. State, 291 Ga. 508 (2) (731 SE2d 669) (2012).

We considered a similar argument in Cantera v. State, 289 Ga. 583, 586 (713 SE2d 826) (2011), although the doctrine of plain error was not applicable in that case. We explained:

[Tjhere is a distinction between aggravated assault cases with injuries that have been intentionally inflicted based upon the evidence and those where, although there may be injuries, intent may be in question. In cases where intent is in question, a charge on simple assault must be given so the jury can see that, although no physical harm may have been done, the defendant could still be found guilty of aggravated assault if the jury finds that the defendant attempted to commit a violent injury or if the defendant performed an act which placed the victim in reasonable apprehension of immediately receiving a violent injury. See, e.g., Chase[ v. State, 277 Ga. 636, 640 (2) (592 SE2d 656) (2004)] (simple assault charge describing “violent” nature of injury that would support assault conviction was necessary where defendant killed his wife by shooting through the floor of the room above her, although he could not see her while he was shooting).

[153]*153Cantera, supra, 289 Ga. at 586 (2). The only evidence presented in this case was that Nathaniel’s injuries were consistent with a severe beating and blunt force trauma that precipitated his death.

Where, as here, however, the jury has already been properly instructed on general intent and there is no question regarding the [nature of the injuries as being deliberately inflicted and the cause of death being a homicide due to abuse], there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault. See Sutton[ v. State, 245 Ga. 192, 193 (2) (264 SE2d 184) (1980)].

Id. This enumeration therefore lacks merit, especially in consideration of the plain error doctrine.

3. Holloman contends that the trial court erred by admitting certain text messages he sent to Rodney, arguing that the text messages were not properly authenticated. The record shows that, during trial, the State introduced text messages Holloman sent to Rodney on the morning of Nathaniel’s death. Prior to the admission of these messages, Holloman’s counsel informed the trial court that he did not object to the admission of the text messages as long as a foundation was laid for them. Subsequently, the State elicited testimony from Rodney that the cell phone containing the messages belonged to her, the messages were sent to her by Holloman, and photographs of her cell phone screen accurately portrayed the messages that had been sent. Holloman did not object to this testimony or the subsequent admission of the text messages. In the absence of any such objection, his current argument regarding the authenticity of the messages has been waived. Williams v. State, 255 Ga. 97, 100 (4) (335 SE2d 553) (1985).

4. Holloman contends that he received ineffective assistance because trial counsel failed to (a) object to the admission of the text messages sent to Rodney’s cell phone and (b) obtain an expert witness to rebut the testimony of the State’s medical examiner regarding Nathaniel’s cause of death.

In order to succeed on his claim of ineffective assistance, [Holloman] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the [154]*154Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court’s decision, “ ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

(a) Holloman first contends that trial counsel rendered ineffective assistance by failing to make an authentication objection to Holloman’s text messages to Rodney.

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Bluebook (online)
744 S.E.2d 59, 293 Ga. 151, 2013 Fulton County D. Rep. 1702, 2013 WL 2372297, 2013 Ga. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holloman-v-state-ga-2013.