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Palmer v. State

Court of Appeals of Georgia

February 12, 2015

PALMER
v.
THE STATE

Page 108

Family violence battery, etc. Douglas Superior Court. Before Judge Emerson.

Judgment affirmed.

James K. Luttrell, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Barnes, P. J., and McMillian, J., concur.

OPINION

Page 109

Ellington, Presiding Judge.

Willie Lee Palmer, Jr., appeals his convictions for family violence battery, OCGA § 16-5-23.1 (f), and two counts of cruelty to children in the third degree, OCGA § 16-5-70 (d) (2). Palmer contends that the trial court erred in (i) not giving his written request to charge on his sole defense of justification, (ii) limiting cross-examination of a witness, [330 Ga.App. 680] (iii) denying his motion for a mistrial, (iv) denying his motion to strike a prospective juror for cause, (v) refusing to admit into evidence a photograph showing his injuries, and (vi) denying his motion for new trial because he received ineffective assistance of trial counsel. We affirm for the reasons set forth below.

Viewed in the light most favorable to the jury's verdict,[1] the evidence shows that on May 9, 2011, while Palmer, his wife, and their four children were having dinner, Palmer and his wife began having a " discussion" about the shirt he was wearing. Palmer's wife had not seen the shirt before, and she asked him about it because he had previously " cheated" on her. Palmer did not answer her questions about the shirt, and Palmer's wife could tell that Palmer was getting angry. After Palmer's wife took the children upstairs to prepare for bed, she and Palmer began arguing. After several minutes, Palmer's wife heatedly demanded that he leave the house.

Page 110

After Palmer refused to go, Palmer's wife grabbed a dresser drawer containing some of Palmer's clothes and dumped the clothes over the upstairs bannister. Palmer, while holding their young son, came up the stairs, and Palmer's wife held the drawer between them and again asked him to leave. According to Palmer's wife, Palmer put the child down after climbing the stairs, and he then came toward her, " popped" the drawer out of her hands, and pushed her back onto the sofa while she grabbed his shirt. Palmer straddled his wife on the sofa, and she could not breathe. She reached up and tried to scratch, pinch, or bite Palmer, and " whatever she could do to get up out of that." Palmer punched his wife two times in the head and then, after she called out for help, he punched her again. Palmer's wife's daughter heard the commotion, and she came into the room and saw Palmer hit her mother with a closed fist as he stood over her.

After the altercation, Palmer left the house, and Palmer's wife called the police. The responding deputy testified that Palmer's wife reported being assaulted by Palmer, and he saw that her right eye was swollen and bruised, her upper lip was split on the inside, her lower lip was split, there were marks on her throat and the back of her neck, and her lip was still bleeding. Palmer testified in his defense and said that he did not punch his wife.

1. Palmer contends that the trial court erred in failing to charge the jury on his sole defense of justification. Palmer's trial counsel filed a written request that the trial court instruct the jury on the affirmative [330 Ga.App. 681] defense of justification.[2] During the charge conference the trial court announced its decision not to give the charge. The trial court explained that the defense of justification was not raised by the evidence inasmuch as the indictment specified that Palmer punched his wife,[3] but Palmer testified that he did not punch his wife. Defense counsel agreed with the trial court that Palmer's defense was not that " I punched her and I was trying to defend myself," but asked that the trial court reserve ruling on whether to give the charge until after closing argument " in case closing argument goes down a totally different road." Following the conclusion of closing argument, and after the trial court instructed the jury, defense counsel expressly represented that she had no exceptions to the charge as given, that is, without any instruction on the affirmative defense of justification. As Palmer acquiesced to the trial court's decision not to charge on justification, the issue of the trial court's refusal to give the requested charge is waived on appeal. See Gunter v. State, 316 Ga.App. 485, 487-488 (2) (729 S.E.2d 597) (2012) (finding that appellant acquiesced to trial court's decision not to give the jury charge). And because Palmer denied punching the victim, he cannot show that the trial court was required to charge justification as his sole defense irrespective of whether he ultimately ...


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