BIRDOW v. THE STATE
S18A1154
In the Supreme Court of Georgia
Decided: February 4, 2019
Mark Birdow appeals from his convictions for malice murder and other crimes in connection with the 2010 death of Angela Woods.1 He argues that
1. Construed in the light most favorable to the verdict, the evidence presented at trial showed that, on July 30, 2010, Angela Woods was reported missing by her family. On August 28, 2010, two teenagers found her dead and decomposing body wrapped in a blanket and lying under a blue plastic container across the street from a Hapeville apartment complex. Her autopsy revealed that the cause of her death was homicide, likely caused by blunt force trauma to the head. The condition of Woods’ body when the autopsy was performed was consistent with death occurring around July 30, 2010.
After Woods’ body was discovered, law enforcement officers questioned residents of the apartment complex across the street. The residents who were interviewed reported that Birdow had lived there but had recently moved away.
Law enforcement officers obtained a search warrant for Birdow’s former apartment. The officers conducting the search located large amounts of blood in various places in the apartment as well as a bloodstain on the exterior door. The officers swabbed several samples of the blood and collected several knives during their search of the apartment.
The officers then visited Birdow at his mother’s home in Atlanta, where he had moved. The officers did not mention that he was a suspect in Woods’ death and instead questioned him about the blood they had found in his apartment. At that time, the officers observed that Birdow had thick bandages
The next day, Birdow went to the police station and admitted that he had lied to the officers about the cause of his injuries. He told the officers that, on the date Woods was killed, he had solicited sex from her. When Birdow and Woods went to his apartment, the victim asked him for a glass of water. Birdow claimed that, when he returned with the water she had requested, she attacked him with a knife—slicing his hands—and tried to rob him. He stated that he then grabbed a metal broom handle and struck her head with it at least twice. She then fell to the bed where he hit her head with the broom handle one additional time and then stabbed her once with a knife. He told police that when he was sure Woods was dead, he placed her in his bathtub, called an ambulance, and went to the hospital so the injuries to his hands could be
At trial, the medical examiner testified that Woods suffered ten blunt force injuries to her head, which resulted in multiple skull fractures. She also suffered three sharp force injuries to her torso, likely as the result of stabbing. The medical examiner determined the cause of death to be homicide resulting from multiple head traumas.
The State also presented testimony from Dr. Pravin Reddy, the plastic and reconstructive surgeon who treated the lacerations to Birdow’s fingers on July 31, 2010. Dr. Reddy testified that Birdow’s injuries were not characteristic of defensive wounds and that, upon sustaining those injuries, Birdow would have been unable to grip anything. When Dr. Reddy was treating Birdow, Birdow informed him that he had sustained the cuts while cutting a frozen chicken. Dr. Reddy stated that it was “improbable” that Birdow could have suffered those injuries from that act and that such injuries were “incongruous” with what Birdow described.
A person is justified in using deadly force only if he “reasonably believes that such force is necessary to prevent death or great bodily injury to himself . . . or to prevent the commission of a forcible felony.”
2. Birdow argues that his trial counsel was ineffective for failing to call an expert witness to testify regarding the allegedly defensive nature of the wounds to Birdow’s hands. We disagree.
At the first hearing on Birdow’s motion for new trial, Birdow called a hand injury expert, Dr. Burton, to the stand. Dr. Burton testified that in his opinion, the wounds on Birdow’s hands “could have been” defensive wounds. He also disagreed with Dr. Reddy’s conclusion that the wounds to Birdow’s hands did not have the characteristics of defensive wounds. Dr. Burton did state, however, that, once such wounds occurred, Birdow would have been unable to hold anything in the wounded hand.
At the second hearing on the motion for new trial, Birdow’s trial counsel testified that, before trial, she retained Dr. Burton to look into the injuries that Birdow sustained during the altercation to elicit his opinion as to the cause of those injuries, specifically whether the injuries were defensive in nature. Counsel noted that Dr. Burton had not been able to “definitively” state that the
At the hearing on the motion for new trial, trial counsel noted that Dr. Reddy’s actual testimony “went very far afield from what he was [supposed] to be an expert in [and] I do believe he tried to say they were not defensive wounds.” Trial counsel stated, however, that she did not consult with Dr. Burton after hearing Dr. Reddy’s testimony and that she did not reconsider calling Dr. Burton as a witness. Rather, she elected to aggressively cross-examine Dr. Reddy and to avoid putting Dr. Burton on the stand.
To prevail on his claim of ineffectiveness, Birdow has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result.
(Citations and punctuation omitted). Stuckey v. State, 301 Ga. 767, 771 (804 SE2d 76) (2017) (citing Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)). Moreover,
how to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego cross-examination and/or to forego development of certain expert opinion, is a matter of trial strategy which, if reasonable, cannot be the basis for a successful ineffective assistance of counsel claim.
Brown v. State, 292 Ga. 454, 456-457 (2) (738 SE2d 591) (2013).
Here, before trial, trial counsel made a clear strategic choice not to call Dr. Burton to testify, reasoning that the same conclusions he would testify to could effectively be drawn out in the cross-examination of Dr. Reddy. Although Dr. Reddy’s actual trial testimony was more definitive on the question of the defensive nature of Birdow’s hand wounds than trial counsel anticipated, Dr. Burton’s testimony would have only suggested that Dr. Reddy could not be certain that the wounds were not defensive in nature. Dr. Burton
The record also reflects that, as planned, Birdow’s counsel cross-examined Dr. Reddy regarding the basis for his conclusion that the wounds were defensive in nature. Although the record established that Birdow was significantly taller than Woods, during cross-examination, Dr. Reddy admitted that his conclusions were based on the premise that the attacker and the victim were both adults, although not necessarily of the same height. Dr. Reddy admitted to being unfamiliar with how the general scientific understanding of defensive injuries might change in circumstances in which the assailant was significantly shorter than the person being attacked, as was the case here. Defense counsel drew on this testimony in closing argument by calling into question the basis of Dr. Reddy’s conclusion that the wounds were not defensive and the certainty with which he expressed that conclusion in his testimony.
Finally, had Dr. Burton testified as he did at the hearing on the motion for new trial, his testimony could have contradicted a central premise of Birdow’s self-defense theory—that he struck and stabbed Woods in self-
In light of the foregoing, we find no deficiency on the part of trial counsel in electing not to call Dr. Burton to testify at trial. See Muckle v. State, 302 Ga. 675, 680 (2) (808 SE2d 675) (2017) (no deficiency where testimony of witness would have conflicted with reasonable defense strategy pursued by trial counsel); Matthews v. State, 301 Ga. 286, 289 (2) (800 SE2d 533) (2017) (no deficiency where defense counsel elected not to call expert witness and instead decided to use cross-examination and argument to advance defense theory). Accordingly, this claim of ineffectiveness fails.
3. Birdow next contends that the trial court erred by not providing him with adequate hearing assistance during the trial. He also claims that his trial counsel was ineffective for failing to arrange adequate hearing assistance during the trial. Both contentions are meritless.
It is the policy of the State of Georgia to secure the rights of hearing impaired persons who, because of impaired hearing, cannot readily understand or communicate in spoken language and who consequently cannot equally participate in or benefit from proceedings, programs, and activities of the courts . . . of this state and its political subdivisions unless qualified interpreters are available to assist such persons.
To give effect to this policy, the General Assembly has mandated that, upon timely request, courts must provide hearing impaired persons represented by appointed counsel with the assistance of court-qualified sign language interpreters at all court proceedings to which they are a witness or party.
Although Birdow is hearing-impaired, the record reflects that he did not request the assistance of a sign-language interpreter during pre-trial proceedings or at trial. Instead, the trial court provided him with headphones that amplified the words spoken into microphones in the courtroom.
Birdow was asked a number of times throughout the proceedings whether he was able to hear what was being said in the courtroom. In instances in which he did not adequately hear or understand what a witness, an attorney, or the judge had said, Birdow was instructed to raise his hand and request that
Birdow and his trial counsel neither objected to the form of assistance offered by the trial court or invoked Birdow’s right to a sign language interpreter pursuant to
At the second hearing on the motion for new trial, Birdow’s trial counsel stated that, prior to trial, she discussed Birdow’s rights to hearing assistance with him. She also stated that Birdow wore the court-provided headphones throughout the proceedings and that “[Birdow] would always seem to say he could hear everything and understood what was going on.” Trial counsel stated
Based on our review of the trial transcript and testimony from Birdow’s counsel at the hearing on the motion for new trial, Birdow has not carried his burden of establishing that he was unable to hear any portion of the proceedings even when using the technological assistance and the procedure implemented by the trial court. See White v. State, 302 Ga. 806, 808 (3) (809 SE2d 749) (2018). See also King v. State, 300 Ga. 180, 182 (2) (794 SE2d 110) (2016) (“The appellant bears the burden of proving error by the appellate record.”). Accordingly, we find no error on the part of the trial court with regard to the hearing assistance it provided to Birdow.
Moreover, to succeed on his ineffectiveness claim, Birdow “must show both that his counsel’s performance was deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” Batten v. State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014). “It is the appellant’s heavy burden to prove the ineffective assistance of counsel, not the state’s burden to prove the adequate assistance of counsel.” (Citation and punctuation omitted.) Id. Here, we see nothing in the
4. Birdow next contends that the trial court abused its discretion by excluding expert testimony regarding Birdow’s history of emotional trauma. Before trial, the State moved to exclude the testimony of a purported expert psychologist whom Birdow planned to call to testify. The witness apparently planned to testify regarding Birdow’s history of emotional and psychological trauma and the fact that he suffered from post-traumatic stress disorder. Birdow
The State moved to exclude this testimony, arguing that it was not relevant to any issue in the case. Specifically, the State argued that Birdow had not asserted an insanity defense for which evidence of his traumatic history might have been admissible. Instead, Birdow had presented only a justification defense, which, as discussed above, was predicated on his belief that Woods posed an imminent physical threat to him. On the basis of that argument, the trial court excluded the witness from testifying.2
Pretermitting whether the trial court abused its discretion in excluding this witness, any such error was harmless. By trial counsel’s own statements to the trial court, the witness’s testimony regarding Birdow’s history of emotional trauma would not have directly supported his justification defense. It would have instead only helped to explain his behavior after the incident, including
5. Finally, Birdow argues that his trial counsel was ineffective for failing to object to the testimony of the State’s hand injury expert on the basis that the testimony was outside the scope of the witness’s expertise. Although the record reflects that Birdow was represented by new counsel when he filed his amended motion for new trial and called his trial counsel to testify at the
The law recognizes a strong presumption that counsel performed reasonably, and Birdow bore the burden of overcoming this presumption. State v. Mobley, 296 Ga. 876, 877 (770 SE2d 1) (2015). In particular, deciding what objections to raise is a matter of trial strategy. Gibson v. State, 272 Ga. 801, 804 (4) (537 SE2d 72) (2000). “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation omitted.) McNair v. State, 296 Ga. 181, 184 (2) (b) (766 SE2d 45) (2014). Birdow has not made that showing. This claim of ineffectiveness therefore fails.
Judgment affirmed. All the Justices concur.