Maurice Shields v. State

• Court: Court of Appeals of Georgia
• Decided: July 10, 2014
• Docket: A14A0083
• Status: Published

Opinion

SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

July 10, 2014

In the Court of Appeals of Georgia A14A0083. SHIELDS v. THE STATE.

MCFADDEN, Judge.

After a jury trial, Maurice Shields was convicted of multiple counts of

aggravated battery (family violence) and aggravated assault (family violence). He

appeals the convictions, arguing that the trial court erred by denying his motion in

limine to prevent reference to his status as a parolee, that the trial court erred in

considering a prior conviction when sentencing him as a recidivist, and that he

received ineffective assistance of trial counsel. We hold that the trial court did not err

by denying the motion in limine because references to Shields’ parole status were not

improper, that Shields failed to meet his burden of showing the invalidity of the prior

conviction used in sentencing, and that he received effective assistance of counsel.

We therefore affirm the convictions. Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App.

682 (1) (746 SE2d 162) (2013), the evidence shows that the victim and Shields

married while Shields was incarcerated. At the time of his attack on the victim,

Shields had been released from prison and had been living with the victim and their

daughter for five or six months. Shields and the victim were not getting along.

On the day of the incident, August 12, 2009, Shields and the victim argued.

Shields became enraged, picked up the victim, threw her to the floor and threw a chair

at her. The victim left the house with their daughter and went to her doctor. She then

went to the parole office to inform Shields’ parole officer of what happened. The

parole officer said that officers would arrest Shields that day and that the parole

officer would call the victim once this was accomplished.

Eventually, the victim received word that the parole officer had given up trying

to locate Shields that day and would arrest him the next morning. The victim went

home, and Shields was there. Shields began accusing the victim of being unfaithful

and began attacking her. He stabbed her in the chest with scissors; threw a can of corn

at her; grabbed a table that the victim had been using as a shield, placed the table on

the victim, and began jumping on it; threw a spare tire at her twice, breaking her

wrist; and sprayed her with mace.

2 Shields stopped attacking the victim and tried to wash the mace from her. But

then he saw from the victim’s phone that she had been speaking with his parole

officer, and he became enraged again. He hit the victim in the eye with a lamp and

threatened to kill her, holding a knife against her throat.

The next morning, several police officers and parole officers went to the house

to arrest Shields. Shields knew they were coming, and he made the victim hide. When

the officers arrived, Shields told them that the victim was not there. When the victim

heard officers asking her daughter where her mommy was, she left her hiding place.

The officers arrested Shields on a parole warrant. The victim was taken by ambulance

to the hospital. The emergency room doctor who treated her testified about the

victim’s injuries.

1. The trial court did not err by denying Shields’ motion in limine.

Shields argues that the trial court erred by denying his motion in limine to

prevent references to his status as a parolee because the references impermissibly

placed his character in issue. Those references primarily came from two witnesses,

the victim and Shields’ parole officer. The victim testified that when Shields learned

that the victim had been in contact with his parole officer, Shields became enraged

and assaulted her again. The victim’s testimony “was relevant to prove that [Shields]

3 had a motive to [assault] the victim, and relevant evidence is not rendered

inadmissible simply because it incidentally puts the defendant’s character in issue.”

Terrell v. State, 271 Ga. 783, 787-788 (7) (523 SE2d 294) (1999).1 See also

Dickerson v. State, 273 Ga. App. 499, 501 (2) (615 SE2d 584) (2005) (evidence that

defendant was on parole at the time of arrest was admissible to show motive for

giving a false name, even though the evidence might have reflected negatively on

defendant’s character).

Shields’ parole officer testified that the victim had reported the first assault to

her, leading the parole officer to obtain a warrant for his arrest, and about the

circumstances of his arrest. “[T]he decision whether to admit evidence connected to

an arrest lies within the discretion of the trial court. Further, all of the circumstances

surrounding an arrest are admissible for whatever value the jury wants to place on

them. Material evidence is not made inadmissible merely because it inadvertently

places a defendant’s character in issue.” Solis v. State, 268 Ga. App. 493, 500 (3)

(602 SE2d 166) (2004) (citations and punctuation omitted).

1 “Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the admissibility of this sort of ‘[e]vidence of other crimes, wrongs, or acts’ is governed by OCGA § 24-4-404 (b).” Thompson v. State, __ Ga. __, __ n. 5 (__ SE2d __) (Case No. S14A0235, decided April 22, 2014).

4 Shields has not shown that the trial court abused his discretion by denying the

motion in limine.

2. Shields has not shown that the trial court erred by sentencing him as a

recidivist.

Shields argues that the trial court erred by sentencing him as a recidivist under

OCGA § 17-10-7 (c), because one of the convictions upon which the state relied was

inadmissible. Specifically, Shields argues that the state failed to prove the

voluntariness of the guilty plea upon which that prior conviction was entered. The

state introduced a certified copy of the conviction, which reflected that Shields had

pled guilty thereto and had been represented by counsel. The burden then shifted to

Shields

to prove that the plea[ was] not voluntary. [Shields], however, did not present any evidence on this point. Although he cites [Gadson v. State, 197 Ga. App. 315, 317-318 (4) (398 SE2d 409) (1990),] for the proposition that the state, rather than he, was required to show that the plea[ was] voluntary, our decision in [Gadson] was based on the Supreme Court of Georgia’s opinion in Pope v. State[, 256 Ga. 195, 209 (17) (345 SE2d 831)]. The [c]ourt subsequently overruled Pope on the issue of the allocation of burdens of proof regarding the voluntariness of pleas in non-death penalty cases.

5 Mikell v. State, 309 Ga. App. 608, 610 (710 SE2d 824) (2011) (citations and footnote

omitted). “Absent an affirmative showing that [Shields’] plea was not voluntary, a

trial court is entitled to rely on a presumption of regularity with regard to the plea

process.” Rucker v. State, 304 Ga. App. 184, 188 (2) (b) (ii) (695 SE2d 711) (2010)

(citation and punctuation omitted).

3. Ineffective assistance of counsel.

Shields argues that trial counsel was ineffective in three ways: counsel failed

to object to inadmissible hearsay; counsel did not properly inform Shields of the

effects of recidivist punishment; and counsel failed to introduce evidence of Shields’

mental illness in mitigation of sentencing. None of these alleged errors amounts to

ineffective assistance of counsel.

To prevail on his claim of ineffective assistance of counsel, Shields is required

to show both deficient performance by trial counsel and actual prejudice. Strickland

v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith

v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Shields “fails to meet his

burden of proving either prong, then we do not need to examine the other prong.”

Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted).

(a) Hearsay.

6 Shields argues that trial counsel was ineffective for failing to object to two

specific statements which he contends were hearsay that bolstered the victim’s

credibility.

Shields argues that trial counsel was ineffective for failing to object to the

victim’s testimony that during the assault, their daughter was shouting, “Leave

Mommy alone.” At the motion for new trial hearing, counsel testified that he did not

object because the testimony fell under two exceptions to the hearsay rule applicable

at the time of trial, the res gestae exception and the excited utterance exception. We

agree, see Cox v. State, 274 Ga. 204, 206 (3) (553 SE2d 152) (2001), and counsel was

not ineffective for failing to object.

Shields argues that trial counsel was ineffective for failing to object to the

victim’s testimony that, when she informed the parole officer of the abuse, the parole

officer said she suspected Shields had been abusing the victim. Assuming that

counsel’s failure to object to this testimony was error, Shields has not shown

prejudice. To the extent the parole officer’s suspicion was relevant, it was relevant

only to the issue of whether Shields actually committed aggravated battery and

aggravated assault against the victim. Given the other evidence that Shields

committed those crimes, he has not shown a reasonable probability that, had counsel

7 objected to the victim’s testimony about the parole officer’s suspicions, the outcome

of his trial likely would have been different. See Johnson v. State, __ Ga. __, __ (3)

(__ SE2d __ ) (Case No. S14A0558, decided June 30, 2014) (because there was

admissible evidence on a point, the admission of hearsay evidence on that point did

not in reasonable probability affect trial’s outcome so as to demonstrate that counsel

rendered ineffective assistance by failing to object).

(b) Recidivist sentencing.

Shields argues that counsel was ineffective for failing to inform him correctly

about recidivist sentencing. He argues that trial counsel informed him that he would

be sentenced under OCGA § 17-10-6, but OCGA § 17-10-7 actually applied. He

argues that trial counsel informed him that if he were convicted of both aggravated

assault and aggravated battery, in the “best case scenario” he could be sentenced to

40 years, but that OCGA § 17-10-7 does not require consecutive sentences. However,

Shields does not assert that these alleged deficiencies harmed him, and he has thus

failed to show ineffective assistance of counsel. Cf. Davis v. State, 325 Ga. App. 572,

575 (2) (754 SE2d 151) (2014) (“Where. . . the defendant’s complaint is that he went

to trial instead of pleading guilty because of counsel’s deficient representation, the

proper question at the prejudice step is whether the defendant demonstrated that, but

8 for counsel’s deficient performance, there is a reasonable probability that he would

have accepted the [s]tate’s plea offer.”) (citation and punctuation omitted).

(c) Mitigation evidence.

Shields enumerates as error that counsel was ineffective for failing to introduce

evidence that he had been diagnosed with major depressive disorder. Although

Shields enumerates as error that counsel should have introduced this evidence as a

defense and in mitigation of sentencing, the only argument he makes concerns

counsel’s failure to introduce this evidence in mitigation of sentencing. Thus, the

portion of the enumeration concerning the failure to introduce this evidence as a

defense is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

As evidence of his diagnosis, Shields points to a report prepared by a forensic

psychologist from the Georgia Regional Hospital at Savannah, who evaluated Shields

to determine his competency at the time he committed certain acts on August 12,

2009,2 to determine his competency to stand trial, and to recommend a possible

disposition. In her report, the forensic psychologist noted that since October 2009,

Shields had been treated for major depressive disorder, which had been diagnosed

2 This is the same day as the attack at issue here, but it is not clear whether the report, which is addressed to a different judge than the judge who presided here, was prepared for this case.

9 while he was incarcerated for the August 12 acts. The forensic psychologist

concluded that there was no evidence that on August 12, Shields was acting from a

delusional compulsion that overmastered his will or that he lacked the capacity to

distinguish right from wrong because of mental illness or mental defect. Finally, the

forensic psychologist determined that Shields did not require inpatient psychiatric

hospitalization and that he was not at imminent risk for harm to himself or others, but

rather that he had symptoms of sadness. In sum, the only evidence regarding Shields’

depression was the forensic psychologist’s observation that another doctor had

diagnosed Shields for depression some time before.

As for Shields’ sentence, the court ordered that the 20-year sentence on count

two was to be served consecutively to the 20-year sentence on count one, but the 20-

year sentences on the remaining four counts upon which Shields was sentenced were

to be served concurrently with count two. In other words, instead of sentencing

Shields to serve 120 years incarceration, he sentenced Shields to serve 40 years

incarceration.

Shields “has pointed to no evidence . . .that the proffered mitigating [evidence

– an observation by a forensic psychologist that another doctor had diagnosed Shields

with depression –] would have altered the trial court’s sentence. Accordingly,

10 [Shields] has not shown that trial counsel’s failure to present this evidence in

mitigation prejudiced him.” Carroll v. State, 252 Ga. App. 142, 148 (4) (c) (555 SE2d

807) (2001) (citations omitted).

Judgment affirmed. Andrews, P. J., and Ray, J., concur.