October 29, 2014
DUI, etc. Troup Superior Court. Before Judge Simpson.
Jennifer A. Trieshmann, for appellant.
Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
Following a trial by jury, Ulysses Holman was convicted of driving under the influence to the extent that he was less-safe to drive (DUI less safe) and serious injury by vehicle. On appeal from these convictions, Holman contends that (1) the evidence is insufficient to sustain his convictions, (2) the trial court erred by giving certain instructions to the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. For the reasons set forth infra, we affirm.
1. At the outset, before addressing the facts of this case or Holman's enumerations of error, we note that this Court previously issued an opinion in this appeal on September 9, 2014 (which has since been recalled and vacated), in which we also affirmed Holman's convictions, albeit for a different reason. In that original opinion, we based our decision on the fact that in his notice of appeal, Holman did not request that a trial transcript be included as part of the appellate record. And because no transcript was requested, we believed that a transcript had not been transmitted to this Court for our review.
Specifically, we affirmed Holman's convictions in that earlier opinion because OCGA § 5-6-37 dictates that a notice of appeal shall set forth, inter alia, " a designation of those portions of the record to be omitted from the record on appeal," and " [i]n addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal."  But here, Holman's notice of appeal stated only that nothing should be omitted from the record on appeal. The notice did not request that a transcript of evidence and proceedings be transmitted to this Court as a part of the appellate record, and, in such a case, we are not at liberty to infer otherwise. Indeed, as our Supreme Court has explicitly held, " [t]he specification that 'nothing' is to be omitted from the record would not infer that the transcript is to be included, since the appellant is [329 Ga.App. 394] required to state whether the transcript will be filed, in addition to designating any portion of the record to be omitted." 
The apparent absence of the trial transcript in the case sub judice made it impossible for this Court to review Holman's enumerations of error concerning the sufficiency of the evidence, the court's instructions to the jury, and trial counsel's allegedly ineffective assistance. And it is well established
that it is the burden of the complaining party to " compile a complete record of whet happened at the trial level, and when this is not done, there is nothing for the appellate court to review."  Additionally, when no transcript is included in the record on appeal we " must assume that the evidence was sufficient to support the judgment."  We therefore affirmed the judgment of the trial court on this ground.
On September 22, 2014, Holman's counsel belatedly filed a Notice of Intention to Apply for Writ of Certiorari to the Supreme Court of Georgia, rather than filing a motion for reconsideration. On September 30, 2014, Holman--not his counsel--called this Court's clerk's office to make inquiry regarding the reasons for our disposition in the prior appeal and was directed to speak with his counsel regarding same. Nevertheless, following that call, our clerk's office, on its own initiative, discovered that a transcript of proceedings was indeed transmitted to this Court in a prior appeal by Holman.
On March 29, 2012, Case No. A12A1504 was docketed with this Court, and in that case, Holman sought to appeal the same convictions at issue in the case now before us. At that time, Holman filed his [329 Ga.App. 395] appeal pro se and, as is the case in his current appeal, did not specify in his notice of appeal whether or not a transcript of evidence and proceedings were to be transmitted to this Court. Nevertheless, it appears that the lower court sua sponte transmitted all available transcripts despite Holman's failure to comply with OCGA § 5-6-37.
However, prior to filing an appellate brief in Case No. A12A1504, Holman filed a motion to remand the case to the trial court for the appointment of appellate counsel, which we granted on May 11, 2012; and on that same date, we issued a remittitur to the lower court. Thereafter, in May 2012, the trial court appointed appellate counsel to represent Holman; however, no appeal was filed and a Motion for Out of Time Appeal was granted on January 30, 2013. But still, no appeal was filed until after Holman and the State subsequently entered into a consent order for the filing of an out-of-time-appeal in September 2013. Finally, a notice of appeal in the current case was filed on September 16, 2013, the contents of which are described supra.
During the investigation that ensued in our clerk's office following the September 30, 2014 phone call from Holman, this Court discovered that in early February 2014, the trial court called this Court to inform it that a second appeal would be forthcoming, at which point a hold was placed on the record from the prior appeal in order to preserve it. This proved to be a stroke of luck for Holman because: (1) the record from Case No. A12A1504 had not already been recycled by this Court;  and (2) it was, once again, the
trial court that undertook the responsibility of ensuring that a transcript was included [329 Ga.App. 396] on appeal despite Holman's repeated failures to make any of the statutorily-required specifications in his notice of appeal.
In sum, neither Holman nor Holman's counsel took any action to ensure that (1) the transcript transmitted sua sponte by the trial court in the prior appeal was held in this Court for use in the subsequent appeal or (2) this Court was aware that Holman intended to use the transcript transmitted with the prior appeal as the transcript in the current appeal. Indeed, although the trial court requested that the transcript be held
over a year after the remittitur had been issued in the prior appeal (and after Holman filed his statutorily deficient notice of appeal), it was, nevertheless, Holman [329 Ga.App. 397] who had a statutory duty to include in his notice of appeal that no transcript was to be transmitted with the current appeal. And to the extent Holman wished to rely upon the transcript transmitted by the trial court in the prior appeal (which was being held in this Court as a matter of courtesy to the trial court), he had a duty under OCGA § 5-6-37 to specify in the notice of appeal that he was not requesting the transmission of the transcript in this appeal because one had previously been transmitted in a prior appeal and was already on hold at the Court. Suffice it to say, even when this Court has been notified by an appellant that a transcript should be placed on hold, it remains the " primary responsibility of the appropriate parties and not this [C]ourt to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this [C]ourt prior to the issuance of our appellate decision."  As such, an appellant must include in the notice of appeal his or her intention to rely upon a previously transmitted transcript in order to satisfy the dictates of OCGA § 5-6-37. This, Holman did not do. And one cannot complain of an appellate ruling, order, or judgment that " his own legal strategy, appellate procedure or conduct aided in causing." 
Nevertheless, despite the repeated procedural errors by Holman, and despite appellate counsel's election to bypass the filing of a motion for reconsideration, we chose to sua sponte vacate our prior opinion and reinstate this case to address Holman's enumerations of error on the merits. We did so because our Court had not yet addressed the unique procedural situation presented by this appeal in a published opinion. This opinion, then, shall serve to place future appellants on notice that similar procedural errors may result in automatic affirmance of a trial court's decision.
2. As previously noted, Holman argues that his convictions must be overturned because (1) the evidence is insufficient to sustain those convictions, (2) the trial court erred by giving certain instructions to [329 Ga.App. 398] the jury, and (3) he received ineffective assistance of counsel when his attorney failed to object to improper opinion testimony. We disagree.
Viewed in the light most favorable to the jury's verdict, the record reflects that in the late afternoon of June 30, 2007, Holman was traveling on Interstate 85 when his car crossed the median and made impact with the elderly victim's vehicle. As a result of this collision, the victim lost consciousness at the scene, sustained lacerations to the face, bruising to the chest, bruising to internal organs, a fractured vertebrae, and an injury to the bowel that was so severe it required removal of a portion of that organ and left the victim with bulging intestines.
Witnesses to the crash testified that, prior to the accident, Holman's vehicle weaved around the road; was traveling at over 75 miles per hour, or at an " incredible rate of speed" ; aggressively passed other cars on the interstate; and then careened over the median, fish-tailed across the road, and struck the victim's vehicle. One of these witnesses also testified that when she approached
Holman to render aid, she immediately noticed that he " reeked" of an alcoholic beverage and had " very, very red" eyes.
Likewise, the responding law-enforcement officer testified that Holman smelled of an alcoholic beverage, had watery and bloodshot eyes, and spoke with slurred, slow speech. The officer also testified that Holman did not understand an initial explanation of Georgia's implied-consent notice and became irate and belligerent when the officer explained it again before refusing to consent to a State-administered chemical test because he " knew" that he would have alcohol in his system. According to the officer, Holman also admitted to drinking heavily the night before, with his last beverage being consumed at approximately 5:00 a.m. Lastly, the officer testified that, given the foregoing, he considered Holman an impaired driver. Holman was convicted by a jury of the offenses enumerated supra, and this appeal follows.
At the outset, we note that on appeal from a criminal conviction, " the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict."  With this guiding principle in mind, we turn now to Holman's enumerations of error.
(a) Sufficiency of the Evidence.
Holman first contends that the evidence is
insufficient to sustain his convictions for DUI less safe and serious injury by
vehicle. We disagree.
[329 Ga.App. 399] First, a person commits the offense of DUI less safe when he or she is in physical control of a moving vehicle while " [u]nder the influence of alcohol to the extent that it is less safe for the person to drive ... ."  And here, there was testimony that prior to the accident, Holman was driving aggressively at an excessive rate of speed, weaving about the road before crossing the median and making impact with the victim's car. There was also testimony from a witness and law-enforcement officer that Holman " reeked" of an alcoholic beverage, had " very, very red" and bloodshot eyes, spoke with slurred speech, became belligerent, refused to submit to a State-administered test because he " knew" it would test positive for alcohol, and admitted to drinking heavily the night before. Accordingly, this evidence was sufficient to sustain Holman's conviction for DUI less safe.
Second, a person commits the offense of serious injury by vehicle when he or she,
without malice, ... cause[s] bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 . ...
Holman does not challenge the sufficiency of the evidence to establish that he caused the requisite bodily harm, but instead contends that the evidence is insufficient to sustain his conviction in this regard because the State failed to prove that he was guilty of DUI less safe. However, as explained supra, the State presented sufficient evidence to sustain the conviction for DUI less safe and, accordingly, presented sufficient evidence to sustain Holman's conviction for serious injury by vehicle.
[329 Ga.App. 400] (b) Charges to the Jury.
Next, Holman takes issue with the trial court's
charges to the jury as to his refusal to submit to a State-administered chemical
test and as to serious injury by vehicle. Again, we disagree.
(i) As to his refusal to submit to the State-administered chemical test, Holman alleges that the trial court erred by instructing the jury as follows:
A Defendant's refusal to take a requested chemical test may be considered as positive evidence creating an inference that the test would show the presence of alcohol. However, such an inference may be rebutted.
Holman contends that this instruction improperly shifted the burden of proof, but we have previously rejected this very same argument with regard to an identical instruction. Thus, this enumeration is wholly without merit.
(ii) As to the serious-injury-by-motor-vehicle instruction, Holman contends that the trial court gave the charge in such a way as to permit the jury to convict him in a manner not alleged in the indictment when the court included all of the various ways in which the crime may be committed, including " organic brain injury." And here, the indictment alleged that Holman committed the offense by " depriving [the victim] of a member of his body and by rendering a member of his body useless, to wit, a closed head injury, resulting in a loss of consciousness, laceration of the right brow, bruised liver and injury to his spine ... ."
It is unquestionable that, in criminal prosecutions, " the court's instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial."  In particular, this is true when the offense charged " may be committed in one of several ways, but the [329 Ga.App. 401] indictment charges one specific method."  Indeed, averments in an indictment as to the specific manner in which a crime was committed are " not mere surplusage,"  and " [s]uch averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant's right to due process of law."  Accordingly, the instructions from the trial court must " sufficiently limit the jury's consideration to the allegations and elements of the offense as charged in the indictment."  And in determining whether a charge contained error, " jury instructions
must be read and considered as a whole." 
Here, the trial court erred by adding " organic brain injury" to its jury charge. Nevertheless, any defect in the charge was cured by the jury being provided with the indictment and instructed that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged. Accordingly, the trial court's charge did not constitute reversible error.
(c) Ineffective Assistance of Counsel.
Finally, Holman asserts that he received ineffective
assistance of counsel when his attorney failed to object to the officer's
testimony that he considered Holman an impaired driver, arguing that this
testimony went to the ultimate issue before the jury. Once again, we disagree.
First, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that " (1) his attorney's representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable [329 Ga.App. 402] probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  When a trial court determines that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous, and here we discern no such error.
It is well established that a defendant cannot show ineffective assistance of counsel by the failure to make a meritless objection. And here, any objection to this testimony would have lacked merit because an officer may testify that, in his opinion, a defendant was an impaired, or a less safe, driver. Thus, Holman did not receive ineffective assistance in this regard.
Accordingly, for all the foregoing reasons, we affirm Holman's convictions.