Person v. the State
340 Ga. App. 252
| Ga. Ct. App. | 2017Background
- On January 28, 2012 Jarvis Meadows intervened when Ladarius Person assaulted Kawantis Haynes; later Person pulled a handgun, chased Meadows, and shot once, striking Meadows in the hip. An eyewitness, Bertha Harris, corroborated parts of the events.
- Person was indicted on two counts of aggravated assault (one for pointing a gun, one for shooting), possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon.
- The trial court bifurcated proceedings to withhold Person’s prior felony from the jury on the non-felon-possession counts.
- Person testified on direct and admitted a prior felony conviction; the State then introduced a certified copy of that conviction and the court read the felony-possession count to the jury.
- The jury convicted Person of aggravated assault for pointing the gun, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon; acquitted on the shooting-count of aggravated assault.
- Person appealed, arguing (1) admission of testimony about a prior difficulty between Person and Haynes was improper, (2) the trial court improperly commented on the evidence, and (3) ineffective assistance for not seeking a limiting instruction after the prior conviction was admitted.
Issues
| Issue | Person's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of testimony about prior difficulty between Person and Haynes | Trial court erred; Haynes was not the charged victim so 404(b) notice was required | Prior difficulty involved Meadows too and was admissible to show motive and circumstances surrounding the charged crime; no notice required when showing circumstances/motive | Admission was within the court’s discretion; prior difficulty admissible to show motive and circumstances |
| Trial court comment on evidence when admitting certified conviction | Court’s remark that the conviction was admitted “in regard to each one of the elements” was an improper comment expressing opinion on guilt | Remark was a ruling on admissibility, not an opinion on facts; judge’s colloquy with counsel is allowed and later jury instruction cured any ambiguity | No plain error; judge did not improperly comment on the evidence and jury charge dispelled any suggestion of opinion |
| Failure to request limiting instruction after certified conviction admitted | Counsel ineffective for not seeking a limiting instruction to prevent jurors using the prior conviction against Person on other counts | Person himself disclosed the conviction; certified copy was cumulative; any failure to request limiting instruction was not prejudicial | No ineffective assistance — even if deficient, Person failed to show prejudice given testimony and his own admission |
| Trial counsel elicited prior-conviction testimony on direct | (Not raised on appeal) | (Not addressed by appellate court) | Court declined to consider the claim because it was not argued below or on appeal |
Key Cases Cited
- Sheppard v. State, 267 Ga. 276 (testimony of prior difficulties admissible when victim/witness was involved and it sheds light on motive and circumstances)
- Pyatt v. State, 298 Ga. 742 (judge’s remarks explaining evidentiary rulings are not forbidden expressions of opinion)
- Anthony v. State, 298 Ga. 827 (definition of motive as reason prompting criminal intent)
- State v. Gardner, 286 Ga. 633 (plain-error standard for alleged judicial comment on evidence)
- Barnett v. State, 215 Ga. App. 46 (trial court must give limiting instruction upon request when prior felony is used only to prove status in separate felon-possession charge)