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Dimauro v. State

Court of Appeals of Georgia, Fourth Division

May 26, 2017


          DILLARD, P. J., RAY and SELF, JJ.


         Following a jury trial, former police officer Nicholas Dimauro was convicted of aggravated assault, aggravated battery, and two counts of violating his oath of office. Dimauro appeals these convictions, arguing that the trial court erred in (1) admitting evidence of a similar transaction; (2) admitting evidence that a witness was harassed; (3) admitting opinion evidence from various police officials; (4) refusing to give a requested special jury instruction on the reasonable use of force; (5) admitting the prior consistent statements of a witness; (6) excluding certain impeachment evidence; (7) failing to dismiss the indictment on the ground that he was prohibited from presenting evidence to the grand jury; and (8) failing to intervene and address the prosecutor's alleged misconduct during closing argument. For the reasons set forth infra, we affirm Dimauro's convictions.

         Viewed in the light most favorable to the jury's verdict, [1] the record reflects that on September 4, 2010, Robert Wormley, who is white, was walking home in the Bankhead neighborhood of Atlanta around 3:00 a.m. Some Atlanta Police Department ("APD") officers, including Dimauro, referred to white people they saw in this neighborhood as "tourists, " and generally considered them to be suspicious characters.[2] That night, Dimauro was on patrol when he stopped Wormley, who was walking in the middle of the road, and asked him for identification. Wormley-who was a convicted felon on probation and out past his curfew-responded that he had no identification. Dimauro again asked to see some form of identification, and Wormley once again responded that he had no identification and told Dimauro that he was going home. Dimauro then directed Wormley to put his hands on the patrol car, which he did. While Wormley's hands were on the vehicle, Dimauro struck him in the back of the head with a flashlight or a baton, and Wormley then took off running. As he fled, Wormley's flip flops caused him to trip and fall, but he sustained no injuries. But while he was still on the ground, Dimauro caught up to Wormley, immediately kneed him in his side, and then hit him in his left forearm with a baton.

         Wormley was eventually able to get away from Dimauro, and he ran around a fence and into a backyard, where he hid behind a piece of plywood laying against the back of the house. And shortly thereafter, several other officers responded to the scene. Indeed, from his hiding place, Wormley could see multiple flashlights coming around the side of the house and into the yard. Wormley then heard someone exclaim, "there he is, " and then he felt someone jump on the plywood. An unidentified officer then kicked Wormley in the face, he was knocked unconscious, and the next thing he remembered was waking up in a police car.

         From the scene, Wormley was transferred to Grady Hospital, where he was treated for a collapsed lung, a fractured wrist, broken ribs, lacerations on his forehead and scalp, and cracked teeth. While he was hospitalized, Wormley made a statement to an officer from internal affairs. Four days later, Wormley was released from the hospital. He was then immediately transported to jail on charges of aggravated battery on a police officer, obstruction, and being a pedestrian in the roadway. At trial, Wormley admitted that he had used cocaine earlier that evening, had prior felony convictions, and had spent time in prison. Wormley also testified that, just before the trial began, the State nolle prossed an unrelated escape charge that he had been facing.

         Ultimately, Dimauro was indicted by a grand jury for aggravated battery by depriving Wormley of the use of his arm and ribs, aggravated battery by disfiguring Wormley's head, aggravated assault, and two counts of violating his oath of office. Following a jury trial, he was found not guilty of aggravated battery by depriving Wormley of the use of his arms and ribs and found guilty on the remaining charges. Dimauro then filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

         1. Dimauro first asserts that the trial court erroneously admitted evidence under OCGA § 24-4-404 (b) (i.e., Rule 404 (b)) in order to establish intent and mistake of fact. Specifically, he argues that evidence regarding an assault against another man Dimauro attempted to detain should not have been admitted to show intent because the charged crimes were general intent crimes, and similar transaction evidence is most appropriate in cases involving specific intent. Dimauro also asserts that a video shown to the jury of the assault against the other man was more prejudicial than probative. We disagree.

OCGA § 24-4-404 (b) provides that
[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.[3]

         The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called "other acts" evidence:[4]

(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.[5]

         As to the first factor, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."[6] And as to the second factor, even if Rule 404 (b) evidence is relevant, we must still decide whether "the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403."[7] Of course, application of the Rule 403 balancing test is "a matter committed principally to the discretion of the trial courts, " but as we have explained before, "the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly."[8] Finally, we review the admission of Rule 404 (b) evidence "for a clear abuse of discretion, " a deferential review requiring us to make "a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness."[9]

         Prior to trial, Dimauro filed a motion in limine seeking to prevent the State from presenting evidence regarding ten different allegations of excessive force that had been made against him throughout his time as an officer with the APD. Thereafter, the State filed its notice of intent to introduce "other acts" evidence concerning two incidents, and Dimauro filed a motion to prevent the introduction of such evidence. Specifically, the State sought to introduce evidence that Dimauro (1) falsely accused a man of dragging him with a vehicle and pinning him in during an arrest, and (2) used excessive force against Clemmin Davis while attempting to detain him in 2011.

         At the hearing on these matters, the State sought to introduce evidence, including a short video, showing that on April 29, 2011, Dimauro, along with two other officers, struck Davis while attempting to arrest him. Dimauro asserted, during an internal investigation, that Davis was resisting arrest. The State argued that the incident was relevant to the jury's determination of whether Dimauro was truthful regarding his encounters with citizens and whether the amount of force he used was actually necessary to bring a suspect into custody. Dimauro argued that the Davis incident was not relevant to show intent or lack of mistake of fact, was not similar to the charged offense, and that the video of the assault was merely intended to inflame the passions of the jury. The court took the matter under advisement and ultimately ruled, based on its consideration of the motions and oral argument, that the Davis incident was admissible to show Dimauro's "intent to commit an assault upon the victim as well as his lack of mistake of fact in his assertion of the suspect's resistance leading to the use of force." The trial court deemed the other incident inadmissible and prohibited the State from referring to it or any other allegations of excessive force against Dimauro.

         At trial, Davis testified that on April 29, 2011, he fled from police officers during a traffic stop. He eventually ran into a wooded area and fell to the ground. While he was on the ground, three officers, including Dimauro, punched, kicked, and hit him for several minutes. The State also presented testimony from a man who saw and videotaped Davis's beating and uploaded the video to YouTube. The 14-second video, made on the witness's cell phone, was introduced into evidence and played for the jury. The video is not of great quality, but it depicts three officers in a wooded area, surrounding Davis. Although the video clearly depicts the officers on either side of Davis hitting and kicking him, it is difficult to see what Dimauro, who is in the middle of the three officers, is doing.

         As an initial matter, we note that although Dimauro argues that similar transaction evidence is most appropriate in cases involving specific intent, he concedes that Rule 404 (b) evidence "is not automatically excluded in general intent crimes."[10] Here, Dimauro was charged with aggravated battery, aggravated assault with a deadly weapon, and violating his oath of office. Dimauro's entry of a not guilty plea "put the State to its burden of proving every element of the crimes charged, including intent."[11] As to aggravated assault with a deadly weapon, the intent required is "an intent to commit the act which in fact places another in reasonable apprehension of injury[.]"[12] And evidence that an accused committed an intentional act generally is relevant to "show-the evidence, in other words, has some tendency to make more or less probable-that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances."[13] Thus, evidence that Dimauro, shortly after the charged incident, committed an assault against another detainee was relevant to show that he committed a similar act against Wormley with a similar intent.[14]

         Furthermore, we find that the probative value of the Davis assault video was not substantially outweighed by any undue prejudice.[15] The video was short in duration and, more importantly, not particularly inflammatory, in part because of its poor quality. This case, then, is distinguishable from United States v. Stout, [16] upon which Dimauro heavily relies. In Stout, the Sixth Circuit held that the trial court correctly prohibited the admission of other evidence that the defendant had surreptiously videotaped a teenage girl while she showered because the other acts evidence was "more lurid and frankly more interesting than the evidence surrounding the actual charges" of possession of child pornography.[17]

         But here, even if the trial court erred in admitting the foregoing evidence, any error was harmless because "it is highly probable that the error did not contribute to the verdict."[18] And when we determine whether or not an error was harmless, "we review the record de novo"[19] and "weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury's verdict."[20]

         So viewed, we initially note that the jury was given the following limiting instruction: "You may not infer from such [similar transaction] evidence that the defendant is of a character that would commit such crimes or acts. The evidence may be considered only to the extent that it may show the elements of intent or lack of mistake . . . in this case now on trial." Moreover, Wormley testified that Dimauro hit him in the back of the head and on the arm while he was laying on the ground, a witness observed the attack, [21] and there was uncontroverted evidence that Wormley sustained serious injuries. Given this evidence, the Rule 404 (b) evidence establishing that Dimauro hit another detainee is "not particularly compelling or prejudicial" and it is likely that any error did not contribute to the verdict.[22]

         2. Dimauro next argues that the trial court erred in admitting irrelevant evidence that other police officers threatened the man who videotaped the assault on Davis. Again, we disagree.

         At the outset, we note that, as a general rule, "admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse."[23]

         Here, Dimauro asserts that evidence that other police officers harassed the witness was not relevant.[24] But a review of the evidence shows that the witness testified that Dimauro was one of several police officers who harassed him. Indeed, during direct examination, the witness testified that the three officers present in the video "threatened [him]" and told him they knew where he lived. Over defense objection, the witness then testified that, following his videotaping the assault and posting it on YouTube, he "had officers coming to [his] business harassing [him] for no reason[, ]" resulting in the witness closing his business. On cross-examination, the witness clarified that Dimauro, specifically, pulled up in a vehicle later on the same day as the Davis incident and "hassled [him] about that video[.]" And, as a general matter, it is well settled "in Georgia that evidence of a defendant's attempt to influence or intimidate a witness can serve as circumstantial evidence of guilt."[25]Thus, while the evidence here went to the commission of other acts, rather than the charged offenses, it was nonetheless relevant.[26] Accordingly, we affirm the trial court's admission of same.[27]

         3. Dimauro asserts that the trial court erred in admitting opinion testimony from APD Chief George Turner and Lieutenant Sharonne Steed on whether Dimauro's use of force against Wormley and Davis was appropriate, as well as their testimony regarding the administrative proceedings that occurred following these incidents. Yet again, we disagree.

         Prior to trial, Dimauro filed a motion to exclude any lay or expert testimony from the State's witnesses that he used excessive force against Davis or Wormley. Dimauro also filed a motion to exclude any evidence regarding statements that he made during the administrative investigations into the Davis and Wormley incidents, arguing that statements made by a public employee during an internal investigation cannot be used against him at trial. The trial court ruled that the State could elicit evidence from witnesses as to whether Dimauro's use of force was proper and whether he followed APD policy and procedure. In so ruling, the trial court instructed the parties to limit the testimony to that permitted in the then-recent ruling by the United States District Court for the Middle District of Georgia in Collins v. Sheppard, [28] a civil rights suit brought after officers broke a man's arm while he was in the custody of a youth detention center. In Collins, the district court ruled that the director of the Georgia Department of Juvenile Justice's Training Academy was limited to testifying about techniques and procedures for the use of force in juvenile detention centers and whether the officer applied those techniques and procedures properly and used force appropriately.[29] And here, the trial court ruled that the State's witnesses were similarly limited in their testimony. The court did, however, prohibit the State from eliciting testimony regarding Dimauro's termination.

         Steed, who served as the commander of the APD's internal affairs unit, testified on direct examination that she has been an APD officer since 1997, serving most recently as a watch commander. In internal affairs, she was trained to investigate and did investigate use-of-force complaints. Specifically, she investigated Wormley and Davis's complaints against Dimauro and determined that, in both instances, Dimauro's use of force was not appropriate and violated APD polices and procedures. After Steed made her determination, it was then forwarded to the chief for his consideration. During cross-examination, Dimauro's counsel elicited from Steed that her recommendation in the Wormley incident was not sustained by the chief.

         Turner then testified that he had been an APD officer for more than 30 years, and became chief in 2010. As chief, he was the ultimate authority in the department for reviewing the disciplinary complaints, including the complaints against Dimauro. He also approved all APD standard operating procedures and the department's use-of-force training. Turner reviewed Wormley's complaint against Dimauro and found that his use of force was not appropriate and not in accordance with APD policies and procedures. Nevertheless, Turner did not sustain Wormley's complaint because he received that complaint and Davis's complaint at the same time, both complaints served as a basis for termination, and he sustained Davis's complaint. This was the only reference to Dimauro's termination at trial.

         On appeal, Dimauro raises several related arguments. He argues that Turner and Steed's testimony was improper because neither witness was offered as an expert witness. He also asserts that the officers' opinion testimony as to whether Dimauro's use of force was appropriate was not admissible. Finally, Dimauro asserts that Turner improperly testified that he was terminated based on these incidents.

         We first note that the admissibility of expert testimony is "a matter within the trial court's sound discretion."[30] And we will not reverse the trial court's ruling on such evidence "absent an abuse of that discretion."[31] With these guiding principles in mind, we will now consider Dimauro's specific claims of error.

         (a) As to Dimauro's claim that Turner and Steed were not proffered as experts, Dimauro failed to object to either witnesses' testimony on this basis in his motion in limine or at trial. Accordingly, Dimauro has waived this argument by failing to raise it below.[32] But even if Dimauro had objected, "[a]lthough much preferred for the sake of clarity and certainty and to preclude question, it is not required that an expert be formally tendered."[33] And here, both witnesses testified to their expertise in evaluating whether an officer's use of force violated APD policies and procedures, and Dimauro's counsel had an opportunity to cross-examine them about their qualifications and testimony. Thus, the officers' testimony was admissible.[34]

         (b) Moreover, in criminal trials, the opinions of experts on "any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses."[35] And expert opinion testimony is admissible where "the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman."[36]

         In the case sub judice, Dimauro was charged with two counts of violating his oath of office.[37] In order to convict an officer of violating his oath of office, the State must prove that "the defendant was actually administered an oath, that the oath was prescribed by law, and that the officer violated the terms of that oath."[38] And here, the State presented evidence, through an APD instructor, that Dimauro had been administered an oath of office, and that the oath was required by law. The instructor, who was tendered as an expert in APD policy and procedures, testified that if a person were to commit a crime or violate APD rules and regulations, that would violate his oath of office. Thus, Steed and Turner's testimony that Dimauro's use of force was in violation of APD policy was relevant to whether he violated his oath of office.[39] Moreover, such evidence was also beyond the ken of the average layman.[40]Thus, we find that the trial court did not abuse its discretion in admitting Steed and Turner's testimony.

         The case upon which Dimauro relies in supporting his argument, Bly v. State, [41]is easily distinguishable. Indeed, Bly concerned a prosecution for an assault committed on a police officer and obstruction, and, as a result, the question of whether an officer violated police department policies and procedures was not at issue. Instead, the Supreme Court of Georgia held in Bly that the trial court erred in admitting testimony from another officer that the police officer, the victim of the assault, "acted appropriately" because it was a matter "which the jurors could have made an equally intelligent judgment of their own[.]"[42] Importantly, in Bly, the expert was not asked to testify about the standard of conduct for a police officer or whether the officer's actions (as the victim of an assault) comported with that standard.[43]

         (c) Finally, Turner did testify, in violation of the court's ruling in limine, that Dimauro was recommended for termination. But not all trial errors require reversal.[44]And even assuming that the admission of evidence regarding Dimauro's termination was erroneous, it is highly probable that this error did not contribute to the verdict and, thus, for the same reasons discussed in Division 1 supra, was harmless.[45]

         4. Dimauro next contends that the trial court erred in refusing his requested special instruction on the reasonable use of force, which he asserts is based on the Supreme Court of the United States's opinion in Graham v. Connor.[46] Once again, we disagree.

         Specifically, Dimauro requested that the jury be instructed, inter alia, as follows:

In considering whether the defendant's actions were reasonable, you must take into account the facts and circumstances confronting the officer at the time force was administered. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene. You must take into account the fact that police officers are often forced to make split second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation. You should consider all of the surrounding circumstances, including but not limited to whether the subject against whom force was used posed an immediate threat to the safety of the officer, the severity of the crime in question, and whether the subject actively resisted arrest or attempted to flee.

         Initially, it is important to note that Dimauro did not object to any portion of the trial court's jury charges as given, and under OCGA § 17-8-58, "[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate."[47] The failure to do so precludes "appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties."[48] In such cases, as the Supreme Court of Georgia has explained, "the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings."[49] Consequently, because Dimauro failed to object to the jury charge, we are limited to reviewing the charge for plain error.[50]

         It is, of course, well established that "the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness."[51] And in this matter, the trial court provided the jury with the following instructions on justification and the use of force:

An affirmative defense is a defense that admits the doing of the act charged, but seeks to justify, excuse or mitigate it. Once an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt. The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct.
The defense of justification can be claimed: A) when the person's conduct is justified . . . in defense of self or others[;] B) when the person's conduct is in reasonable fulfillment of his duties as a government officer or employee[;] C) when the person's conduct is reasonable and is performed in the course of making a lawful arrest[;] D) when the person's conduct is justified for any other reason specified under the laws of this State[;] or E) in all other instances based on similar reason and justice as those enumerated in this charge.
An arrest for a crime may be made by a law enforcement officer without a warrant if the offender is endeavoring to escape. A person is justified in threatening or using force against another person when and to the extent that he reasonably believes that such threat or force is necessary to defend himself against the other's imminent use of unlawful force. . . .
The use of excessive or unlawful force while acting in self-defense is not justifiable and the defendant's conduct in this case will not be justified if you find that the force used exceeded that which the defendant reasonably believed was necessary to defend against the victim's use of unlawful force, if any.
A police officer is authorized to use in making a lawful arrest only that degree of force that is reasonably necessary to accomplish the arrest. The mere fact that a lawful arrest is being made does not give the officer the right to use excessive force or an unlawful degree of force upon the person being arrested.

         Viewing these instructions as a whole, the jury was adequately informed that Dimauro was justified in threatening or using force against Wormley when and to the extent that he reasonably believed such threat or force was necessary to defend himself.[52] Accordingly, the court's refusal to ...

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