Montgomery v. State

828 S.E.2d 620, 350 Ga. App. 244
CourtCourt of Appeals of Georgia
DecidedMay 24, 2019
DocketA19A1353
StatusPublished
Cited by4 cases

This text of 828 S.E.2d 620 (Montgomery v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery v. State, 828 S.E.2d 620, 350 Ga. App. 244 (Ga. Ct. App. 2019).

Opinion

Barnes, Presiding Judge.

*244A jury found Nathan Alan Montgomery guilty of false imprisonment, aggravated assault, and hindering an emergency telephone call. Following the denial of his amended motion for new trial, Montgomery appeals, contending that the trial court erred in finding that he intentionally placed his general character in issue and, consequently, erred in permitting the State to cross-examine a witness about his criminal history. Montgomery further contends that the trial court committed plain error by not instructing the jury on how to consider evidence of a defendant's general good character, and that his trial counsel rendered ineffective assistance by failing to request such an instruction. Discerning no basis for reversal, we affirm.

On appeal after a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Anthony v. State , 317 Ga. App. 807, 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that Montgomery and the victim were married for several years and had a volatile, contentious relationship. In early 2015, Montgomery and the victim separated and filed for divorce. On March 21, 2015, which was before the divorce was finalized, Montgomery encountered the victim at a brewery. The victim left to go home after Montgomery upset her, and Montgomery had a coworker drive him to the victim's house a short while later.

After arriving at the victim's house, Montgomery entered through an unlocked door while his coworker waited in the car. The victim asked Montgomery to leave, but he forced her into another room, lifted her up, slammed her to the floor, jumped up and down on her chest with his feet, pressed her face into the floor with his foot, and placed her in a headlock. When the victim reached for her cell phone and told Montgomery she was calling the police, Montgomery grabbed her arm, wrestled the phone away from her, and threw it against the wall across the room. During the attack, Montgomery confined the victim in the bathroom for a period of time and would not let her leave. According to the victim, Montgomery also forced her to perform oral sex and to have sexual intercourse with him and placed a pillow over her face to suffocate her. Montgomery left the victim's house after the *245attack, and she called 911 and was transported to the hospital by ambulance.

Montgomery was indicted for rape, aggravated sodomy, false imprisonment, aggravated *623assault (two counts), and hindering an emergency telephone call. During the jury trial, the victim testified to the attack by Montgomery as set forth above. She also testified about four prior difficulties between her and Montgomery, including prior incidents in which he sexually and physically abused her. The State sought to corroborate the victim's description of the attack through photographs taken of her at the hospital and the sheriff's office and emails between her and Montgomery on the day of the attack. Additionally, among other witnesses, the State called an investigator from the sheriff's office who testified that the victim appeared "terrified" at the hospital and described the bruises and other marks that he saw on her neck, arms, and leg.

Montgomery elected to testify and denied that he ever physically or sexually assaulted the victim. He also called eleven character witnesses who testified about his reputation for honesty and/or their opinion that he was trustworthy. After one of the character witnesses testified more broadly that Montgomery was "to be admired," the trial court warned that the defense was getting close to the line of placing Montgomery's general character in issue. Ultimately, when one of the character witnesses testified on direct-examination that Montgomery was a "man of integrity," the trial court ruled that the defense had intentionally placed Montgomery's general character in issue and thus had opened the door to the State cross-examining the witness about whether the witness knew or had heard about Montgomery's drug, alcohol and driving-related arrests and convictions.

Later in the trial, during the charge to the jury, the trial court gave an instruction on evidence of the defendant's character for truthfulness, pointing out to the jury that "[y]ou should consider any such evidence along with all the other evidence in deciding whether or not you have a reasonable doubt about the guilt of the defendant." Defense counsel had requested the instruction.

Following its deliberations, the jury found Montgomery guilty of false imprisonment, hindering an emergency telephone call, and one count of aggravated assault (based on the allegation that he jumped up and down on the victim's chest with his feet). The jury acquitted him of rape, aggravated sodomy, and the second count of aggravated assault (based on the allegation that he covered her face with the pillow in a manner "likely to result in strangulation"). Montgomery then filed a motion for new trial, as amended, which the trial court denied after conducting a hearing in which Montgomery's two trial attorneys testified. This appeal then ensued.

*2461. Montgomery contends that the trial court erred in finding that he intentionally placed his general character in issue and, therefore, erred in permitting the State to cross-examine one of his character witnesses about his criminal history. We disagree.

Under Georgia's current Evidence Code, the admissibility of evidence of a defendant's character is governed by OCGA §§ 24-4-4041 and 24-4-405.2 See Timmons v. State , 302 Ga. 464, 467 (2) (a), 807 S.E.2d 363 (2017). As a general rule, evidence of a person's character is inadmissable. See OCGA § 24-4-404 (a) ; Wade v. State , 304 Ga. 5, 10 (3), 815 S.E.2d 875 (2018) ; Timmons , 302 Ga. at 468 (2) (a), 807 S.E.2d 363. But, "[w]hen a witness testifies about a defendant's good character, the State may cross-examine that witness about the defendant's prior misconduct in an attempt to undermine the witness's credibility."

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Cite This Page — Counsel Stack

Bluebook (online)
828 S.E.2d 620, 350 Ga. App. 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-state-gactapp-2019.