Perez v. the State
331 Ga. App. 164
Ga. Ct. App.2015Background
- Perez was convicted by a jury of burglary (with intent to commit cruelty to children) and misdemeanor obstruction after breaking into the Mendoza home while an 11‑year‑old child (Dana) and her 4‑year‑old brother were inside.
- Dana photographed a man prowling the house, locked with her brother in a bathroom, and was grabbed when Perez broke in; he fled when Dana’s mother arrived. Multiple witnesses identified Perez and observed cuts on him consistent with broken glass and blood in the home.
- Perez was arrested after a struggle with an officer; charged with burglary and obstruction; convicted on both counts (obstruction as a misdemeanor). He moved for a new trial, which was denied.
- On appeal Perez argued: (1) admission of evidence he previously followed the 15‑year‑old sister (prior bad act) was improper; (2) exclusion of a post‑trial photograph of his shoulder scar deprived him of evidence; and (3) trial counsel provided ineffective assistance (language barrier, coerced decision not to testify, failure to object, inadequate investigation/witnesses).
- The Court reviewed the prior‑act evidence for plain error (no timely objection), found abundant identification and physical evidence that made any possible error non‑prejudicial, and affirmed the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of prior bad‑act evidence (following 15‑yr‑old) | Perez: evidence impermissibly attacked character (OCGA § 24‑4‑404(b)) and suggested sexual motive | State: admissible to show motive/prior difficulties; no notice required for prior difficulties | Court: Reviewed for plain error (no timely objection); even if erroneous, overwhelming ID and physical evidence made any error non‑prejudicial — affirmed |
| Exclusion of post‑arrest photograph of shoulder scar | Perez: scar would explain resistance to arrest and his pain after shoulder surgery; mother could authenticate without Perez testifying | State/Trial court: admission would be equivalent to letting Perez testify without cross‑examination | Court: Exclusion harmless — mother testified to recent shoulder surgery so photo was cumulative — affirmed |
| Ineffective assistance: language barrier and pressure not to testify | Perez: counsel failed to communicate and discouraged him from testifying against his wishes | State: counsel had interpreter, advised about testifying, court colloquy confirmed Perez understood and personally declined to testify | Court: Trial court credited counsel and colloquy; no deficient performance or prejudice shown — claim fails |
| Ineffective assistance: investigation and witness selection | Perez: counsel failed to call witnesses showing Perez sought Manuel after prior attack (alternative defense) | State: counsel investigated, strategically chose not to call witnesses he believed would be harmful | Court: Tactical choices do not establish deficient performance absent unreasonableness; no prejudice shown — claim fails |
Key Cases Cited
- Rankin v. State, 278 Ga. 704 (recognizing standard for viewing evidence in light most favorable to verdict)
- Ferrell v. State, 283 Ga. App. 471 (intent to commit cruelty to children may be inferred from conduct and circumstances)
- Cannon v. State, 288 Ga. 225 (wrongfully excluded evidence is harmless where admissible evidence of same fact exists)
- Strickland v. Washington, 466 U.S. 668 (establishing two‑part ineffective assistance test)
- Williams v. State, 277 Ga. 853 (presumption that counsel’s performance is reasonable)
- Thornton v. State, 292 Ga. 796 (defendant’s right to testify is personal and requires intentional relinquishment)
- Mobley v. State, 264 Ga. 854 (trial court resolves credibility conflicts at new‑trial hearing)
- Miller v. State, 295 Ga. 769 (witness selection is tactical and generally not unreasonable)
- Schofield v. Holsey, 281 Ga. 809 (cumulative‑error principle discussed)
- Robinson v. State, 277 Ga. 75 (appellate review accepts trial court’s factual findings unless clearly erroneous)