PERCELL v. the STATE.
346 Ga. App. 219
Ga. Ct. App.2018Background
- Defendant Craig Edward Percell, living with the victim and co-parenting two children, was convicted after a jury trial of family-violence aggravated battery, two counts of DUI, possession of marijuana, reckless driving, and related traffic and drug offenses. The trial court denied his motion for new trial.
- Incident facts: during an argument the victim left with their infant; Percell followed, struck her vehicle at high speed causing it to roll; the victim suffered severe injuries (coma, fractured vertebrae, broken collar bone, nerve damage, punctured spleen, collapsed lungs).
- Post-crash: Percell was arrested at the scene after field sobriety/breath tests; later blood testing indicated alcohol (~.135 at time of crash) and marijuana; marijuana and a pipe were found in his truck.
- Additional evidence: a bystander observed Percell follow and strike the victim’s car; reconstruction testimony indicated Percell struck the victim’s car without braking and at >56 mph; the victim afterward accused Percell of intentional conduct and he later threatened her.
- Procedural notes: Percell argued insufficiency of evidence for aggravated assault/battery (merged into family-violence aggravated battery), sought a morning-of-trial continuance to retain private counsel, objected to the victim remaining in court and testifying in rebuttal, and asserted ineffective assistance of counsel. The Court of Appeals affirmed.
Issues
| Issue | Percell's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault/battery (and family-violence aggravated battery) | Evidence insufficient to prove aggravated assault/battery (lack of proof of apprehension/ malice) | Evidence (reconstruction, injuries, witness statements, post-crash threats, intoxication) supports family-violence aggravated battery; assault/battery counts merged | Assault/battery claims moot due to merger; family-violence aggravated battery supported by sufficient evidence and affirmed |
| Denial of continuance to retain private counsel | Trial counsel ineffective; defendant needed time to hire private counsel and to explain desire to fire appointed counsel | Defendant had adequate opportunity and delay was untimely; appointed counsel was prepared; continuance denial within discretion | Trial court did not abuse discretion; no reversible error |
| Victim allowed to remain in courtroom and testify in rebuttal | Presence and rebuttal testimony violated sequestration/sequestration rules and prejudiced defense | Georgia law permits victim to remain; recall for rebuttal was discretionary; any sequestration violation affects credibility, not admissibility | Court acted within discretion; allowing rebuttal testimony was not reversible error |
| Ineffective assistance of counsel (preparation, Jackson-Denno hearing, objections) | Counsel failed to investigate scene/witnesses, did not move to suppress statement, and failed to object to multiple items of testimony | Alleged errors speculative, nonprejudicial; objected issues not outcome-determinative; no showing of reasonable probability of different result | Defendant failed to prove deficient performance and prejudice under Strickland; claims rejected |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- Miller v. State, 273 Ga. 831 (deference to jury where competent evidence supports verdict)
- Hill v. State, 291 Ga. 160 (prejudice requirement for ineffective assistance; likelihood of different result must be substantial)
- Blanchard v. State, 247 Ga. 415 (sequestration rule violations affect credibility, not admissibility)