Hernandez v. State, 317 Ga. App. 845

Hernandez was convicted after a jury trial of attempted murder, family violence aggravated battery, false imprisonment, and giving a false name to officers.
Appellate motion for new trial was denied; Hernandez appeals on three grounds: inadmissible character evidence, ineffective assistance, and failure to merge offenses for sentencing.
Hernandez and the victim dated beginning February 2009 and cohabited briefly; their relationship was volatile with prior violent incidents including a knife at the victim's throat and a punch to the mouth.
Two days before the incident, Hernandez attacked the victim, throwing her to the ground and beating her on the head.
On November 15, 2009, Hernandez stabbed the victim in the stomach during a confrontation at a friend's residence, leading to a prolonged struggle and the victim fleeing to safety; Hernandez was later arrested after the knife was recovered and he provided a false name to officers.
Stipulated trial facts included blood on Hernandez’s clothing and on the recovered knife, and the blood depicted in photographs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of character evidence and mistrial	Hernandez: improper elicitation mandating mistrial.	Hernandez: curative instruction sufficed; no mistrial needed.	Mistrial not required; no abuse of discretion.
Ineffective assistance of counsel—mistrial renewal	Hernandez faulted counsel for not renewing mistrial after curative instruction.	No prejudice; curative instruction preserved fairness.	No ineffective assistance; renewal would not change outcome.
Ineffective assistance—cross-examination and limiting instruction	Counsel failed to perfect the motion-for-mistrial record and to seek limiting instruction.	Final limiting instruction in charge cured potential error.	No ineffective assistance; no showing of prejudice.
Merging of offenses for sentencing	Family violence aggravated battery and attempted murder should not merge.	OCGA 16-1-6(2) requires merging because same conduct proves both offenses.	Convictions for family violence aggravated battery and attempted murder must merge; remand for resentencing.

Goss v. State, 305 Ga. App. 497 (2010) (standard for reviewing abuse of discretion in mistrial rulings)
Ochle v. State, 218 Ga. App. 69 (1995) (curative instruction sufficiency when testimony is inadvertent)
Owens v. State, 250 Ga. App. 61 (2001) (assessment of improprieties and curative measures)
McGee v. State, 267 Ga. 560 (1997) (curative instruction and lack of officer-specific instruction)
Jackson v. State, 267 Ga. 130 (1996) (mistrial not necessary when no instruction given to officer witness)
Starks v. State, 240 Ga. App. 346 (1999) (curative instruction sufficient when no prior instruction violated)
Massey v. State, 306 Ga. App. 180 (2010) (overwhelming evidence can render errors harmless)
Drinkard v. Walker, 281 Ga. 211 (2006) (included-offense test for merging; evidence strength matters)
Soilberry v. State, 289 Ga. 770 (2011) (merger principles for included offenses under 16-1-6(2))
Ledford v. State, 289 Ga. 70 (2011) (battery vs murder as included offenses under 16-1-6(2))
Louisyr v. State, 307 Ga. App. 724 (2011) (de novo review of merger questions)