Dimauro v. the State
341 Ga. App. 710
| Ga. Ct. App. | 2017Background
- In Sept. 2010 APD officer Nicholas Dimauro stopped Robert Wormley (a white man walking at 3 a.m. in Bankhead) and, after Wormley had his hands on a patrol car, struck him with a baton/flashlight; Wormley fled, fell, was caught, kneed and struck again, later found unconscious and treated for serious injuries.
- Wormley had prior felony convictions, admitted recent cocaine use that night, and faced unrelated charges that were later nolle prossed; he gave an internal-affairs statement while hospitalized and later testified at trial.
- Dimauro was indicted on counts including aggravated assault, aggravated battery, and two counts of violating his oath of office; convicted on all counts except one aggravated-battery theory; motion for new trial denied.
- At trial the State introduced (1) a short cellphone video and testimony of a 2011 incident in which Dimauro and other officers beat Clemmin Davis (admitted as Rule 404(b) other-act evidence); (2) testimony that officers harassed the civilian who videotaped Davis; and (3) opinion testimony from APD officials that Dimauro’s force violated APD policy.
- Defense raised multiple evidentiary and instruction objections (404(b), witness harassment relevance, expert/opinion testimony, special-use-of-force jury charge, prior-consistent statements, excluded impeachment, grand-jury evidence rights, and prosecutor misconduct on closing); appellate court affirmed.
Issues
| Issue | Dimauro's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| Admission of similar-transaction (404(b)) evidence (Davis video) | Irrelevant for general-intent crimes; unfairly prejudicial and more inflammatory than probative | Evidence showed intent/absence of mistake and was temporally and factually similar; limiting instruction given | Admissible; if error, harmless — probative and not substantially prejudicial |
| Admission of testimony that officers harassed the civilian videographer | Irrelevant and prejudicial | Evidence shows attempt to influence/intimidate witness — circumstantial consciousness of guilt | Admissible as relevant to witness intimidation/consciousness of guilt |
| Opinion testimony by APD officials on propriety of force and administrative findings | Officers were not tendered as experts; opinions invade jury province; testimony on termination improper | Officers qualified by training/role; testimony relevant to oath-of-office and beyond lay ken; termination testimony minimal | Testimony admissible; failure to formally tender as experts waived; termination remark erroneous but harmless |
| Refusal to give special Graham-based reasonable-use-of-force instruction | Requested specific Graham instruction was necessary | General justification/use-of-force instructions sufficiently covered legal standard | No plain error; general instructions adequate; refusal proper |
| Admission of prior consistent statements of Terri Scott | Improper hearsay / not proper rehabilitation | Cross suggested recent fabrication; prior statement predated alleged fabrication and thus rehabilitative | Admissible to rebut implied recent fabrication |
| Exclusion of impeachment evidence (2003 conviction and other statements) | Exclusion prevented effective impeachment; State opened the door to full record | Court limited old conviction under OCGA §24-6-609(b); other proffered statements were not properly shown or argued | No reversible error; exclusion of old conviction not prejudicial; other claims abandoned for lack of record/argument |
| Motion to dismiss indictment for denial of right to present evidence to grand jury | Officer entitled to present documentary evidence under former OCGA §45-11-4(g) | Statute permits sworn oral statement but does not authorize submission of documentary evidence to grand jury | Denial proper; statute allows sworn statements but not introduction of documents |
| Prosecutorial misconduct in closing (court should sua sponte intervene) | Closing contained numerous improper statements; trial court should have rebuked sua sponte | No timely objection; court not required to rebuke absent objection; claim waived | Waived for failure to object; no sua sponte duty; ineffective-assistance claim premature |
Key Cases Cited
- Smart v. State, 299 Ga. 414 (Ga. 2016) (framework for admissibility of other-act evidence under OCGA § 24-4-404(b))
- Edmonson v. State, 336 Ga. App. 621 (Ga. Ct. App. 2016) (harmless-error standard and de novo review in assessing impact of erroneously admitted evidence)
- Peoples v. State, 295 Ga. 44 (Ga. 2014) (harmless-error analysis for erroneously admitted evidence)
- Dugger v. State, 297 Ga. 120 (Ga. 2015) (sufficiency of general justification instructions vs. requested charge)
- Powell v. State, 291 Ga. 743 (Ga. 2012) (no duty for judge to rebuke prosecutor absent timely objection)
- Bly v. State, 283 Ga. 453 (Ga. 2008) (limits on department-policy testimony when jurors can make same assessment)
- Olds v. State, 299 Ga. 65 (Ga. 2016) (other-act evidence relevance for intent in general-intent crimes)