PETTIS v. the STATE.
350 Ga. App. 421
Ga. Ct. App.2019Background
- In August 2014 Pettis, living with his wife and her son, got into an altercation during which he grabbed and threw his wife, pushed her head to the floor, twisted her arm, and earlier had choked her son; victims later fled and called 911.
- Pettis was charged with two counts of family violence battery (wife) and one count of simple assault (stepson); the jury convicted on all counts.
- At trial the victims gave statements to police but recanted or minimized certain details at trial; the State introduced a certified conviction from a prior choking incident.
- Pettis filed an out-of-time motion for new trial, which was denied; he appealed challenging only the simple-assault conviction’s sufficiency, trial counsel’s failure to object to portions of closing argument, and the court’s order that he reimburse attorney fees.
- The trial court sentenced Pettis to five years, with three to serve, ordered completion of a family violence program, assessed an indigent defense application fee, and ordered reimbursement of attorney fees; Pettis did not object to the fee reimbursement at sentencing.
Issues
| Issue | Pettis' Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for simple assault | Charging the stepson did not place him in reasonable apprehension or constitute a substantial step toward battery | Evidence of prior choking, the physical attack on the wife, and Pettis’s charge at the son supported a reasonable fear of immediate injury | Affirmed — evidence sufficient to support simple assault conviction |
| Ineffective assistance for failing to object to prosecutor’s closing (domestic violence cycle and hostility characterizations) | Counsel was deficient for not objecting to improper, out-of-evidence arguments | Arguments were reasonable inferences from testimony and witnesses’ recantations; any objection would be meritless or harmless given jury instructions and strong evidence | Denied — no ineffective assistance; at most harmless even if improper |
| Ineffective assistance for failing to object to prosecutor’s community-protection remark | Counsel should have objected to impermissible "golden rule"/appeal to community safety | Counsel reasonably chose strategy not to object; such argument has been upheld as permissible in context | Denied — strategic decision, not ineffective assistance |
| Reimbursement of court-appointed attorney fees without hearing | As an indigent defendant, Pettis argues the court erred by imposing reimbursement without an ability-to-pay hearing under current statute | The sentencing court had discretion at the time of offense; Pettis failed to make a contemporaneous objection at sentencing, waiving appellate review | Affirmed — no reviewable error because Pettis failed to object at sentencing; Pless controls |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Daniels v. State, 298 Ga. App. 736 (defining simple assault as demonstration of violence plus apparent present ability)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
- Pless v. State, 282 Ga. 58 (trial court authority to order reimbursement of attorney fees and requirement to make contemporaneous objection)
- Hunter v. Dean, 240 Ga. 214 (limitations on imprisoning inability-to-pay fines)
- Hendrix v. State, 298 Ga. 60 (prosecutor’s inferences about witness intimidation permissible closing argument)
- Reese v. State, 270 Ga. App. 522 (appellate standard: view evidence in light most favorable to the verdict)