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Montgomery v. State

Court of Appeals of Georgia, First Division

May 24, 2019

MONTGOMERY
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Barnes, Presiding Judge.

         A jury found Nathan Alan Montgomery guilty of false imprisonment, aggravated assault, and hindering an emergency telephone call. Following the denial of his amended motion for new trial, Montgomery appeals, contending that the trial court erred in finding that he intentionally placed his general character in issue and, consequently, erred in permitting the State to cross-examine a witness about his criminal history. Montgomery further contends that the trial court committed plain error by not instructing the jury on how to consider evidence of a defendant's general good character, and that his trial counsel rendered ineffective assistance by failing to request such an instruction. Discerning no basis for reversal, we affirm.

         On appeal after a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Anthony v. State, 317 Ga.App. 807, 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that Montgomery and the victim were married for several years and had a volatile, contentious relationship. In early 2015, Montgomery and the victim separated and filed for divorce. On March 21, 2015, which was before the divorce was finalized, Montgomery encountered the victim at a brewery. The victim left to go home after Montgomery upset her, and Montgomery had a coworker drive him to the victim's house a short while later.

         After arriving at the victim's house, Montgomery entered through an unlocked door while his coworker waited in the car. The victim asked Montgomery to leave, but he forced her into another room, lifted her up, slammed her to the floor, jumped up and down on her chest with his feet, pressed her face into the floor with his foot, and placed her in a headlock. When the victim reached for her cell phone and told Montgomery she was calling the police, Montgomery grabbed her arm, wrestled the phone away from her, and threw it against the wall across the room. During the attack, Montgomery confined the victim in the bathroom for a period of time and would not let her leave. According to the victim, Montgomery also forced her to perform oral sex and to have sexual intercourse with him and placed a pillow over her face to suffocate her. Montgomery left the victim's house after the attack, and she called 911 and was transported to the hospital by ambulance.

         Montgomery was indicted for rape, aggravated sodomy, false imprisonment, aggravated assault (two counts), and hindering an emergency telephone call. During the jury trial, the victim testified to the attack by Montgomery as set forth above. She also testified about four prior difficulties between her and Montgomery, including prior incidents in which he sexually and physically abused her. The State sought to corroborate the victim's description of the attack through photographs taken of her at the hospital and the sheriff's office and emails between her and Montgomery on the day of the attack. Additionally, among other witnesses, the State called an investigator from the sheriff's office who testified that the victim appeared "terrified" at the hospital and described the bruises and other marks that he saw on her neck, arms, and leg.

         Montgomery elected to testify and denied that he ever physically or sexually assaulted the victim. He also called eleven character witnesses who testified about his reputation for honesty and/or their opinion that he was trustworthy. After one of the character witnesses testified more broadly that Montgomery was "to be admired," the trial court warned that the defense was getting close to the line of placing Montgomery's general character in issue. Ultimately, when one of the character witnesses testified on direct-examination that Montgomery was a "man of integrity," the trial court ruled that the defense had intentionally placed Montgomery's general character in issue and thus had opened the door to the State cross-examining the witness about whether the witness knew or had heard about Montgomery's drug, alcohol and driving-related arrests and convictions.

         Later in the trial, during the charge to the jury, the trial court gave an instruction on evidence of the defendant's character for truthfulness, pointing out to the jury that "[y]ou should consider any such evidence along with all the other evidence in deciding whether or not you have a reasonable doubt about the guilt of the defendant." Defense counsel had requested the instruction.

         Following its deliberations, the jury found Montgomery guilty of false imprisonment, hindering an emergency telephone call, and one count of aggravated assault (based on the allegation that he jumped up and down on the victim's chest with his feet). The jury acquitted him of rape, aggravated sodomy, and the second count of aggravated assault (based on the allegation that he covered her face with the pillow in a manner "likely to result in strangulation"). Montgomery then filed a motion for new trial, as amended, which the trial court denied after conducting a hearing in which Montgomery's two trial attorneys testified. This appeal then ensued.

         1. Montgomery contends that the trial court erred in finding that he intentionally placed his general character in issue and, therefore, erred in permitting the State to cross-examine one of his character witnesses about his criminal history. We disagree.

         Under Georgia's current Evidence Code, the admissibility of evidence of a defendant's character is governed by OCGA §§ 24-4-404[1] and 24-4-405.[2] See Timmons v. State, 302 Ga. 464, 467 (2) (a) (807 S.E.2d 363) (2017). As a general rule, evidence of a person's character is inadmissable. See OCGA § 24-4-404 (a); Wade v. State, 304 Ga. 5, 10 (3) (815 S.E.2d 875) (2018); Timmons, 302 Ga. at 468 (2) (a). But, "[w]hen a witness testifies about a defendant's good character, the State may cross-examine that witness about the defendant's prior misconduct in an attempt to undermine the witness's credibility." Leanos v. State, 303 Ga. 666, 672 (2) (c) (iii) (814 S.E.2d 332) (2018). See OCGA §§ 24-4-404 (a) (1); 24-4-405 (c); United States v. Glass, 709 F.2d 669, 673 (11th Cir. 1983) (per curiam).[3] As part of the cross-examination of the character witness by the State, "inquiry is allowable into relevant specific instances of conduct, including prior convictions or arrests of the accused." (Citations and punctuation omitted.) United States v. Coumaris, 399 F.3d 343, 348 (II) (A) (D. C. Cir. 2005). See OCGA § 24-4-405 (c); United States v. Collins, 779 F.2d 1520, 1532 (11th Cir. 1986) (character witness could be questioned on cross-examination about whether he had heard of defendant's prior arrests and convictions).

         If the defendant elicits testimony from a character witness regarding a specific character trait of the defendant, the State is limited to cross-examining the witness about specific instances of the defendant's conduct that "are relevant to the trait[ ] of character about which the witness[ ] has testified." Coumaris, 399 F.3d at 348 (II) (A). See OCGA § 24-4-404 (a) (1); Stroud v. State, 301 Ga. 807, 812 (II), n. 7 (804 S.E.2d 418) (2017) (noting that "under both old and new Evidence Code, [a] defendant's character witnesses may be cross-examined about their knowledge of a prior conviction if such conviction rebutted the 'specific character trait' as to which the witness testified") (citation omitted); United States v. Adair, 951 F.2d 316, 319 (II) (C) (11th Cir. 1992) (when a witness testifies about defendant's character trait, cross-examination is permitted with regard to "particular instances of conduct relevant to the trait in question"). By contrast, if the defendant places his general character in issue through a character witness, the door is opened for the prosecution to cross-examine the witness about specific instances of the defendant's conduct reflecting bad character. See United States v. Clark, 26 Fed.Appx. 422, 428 (6th Cir. 2001) (per curiam). See also United States v. Mendoza-Prado, 314 F.3d 1099, 1105 (C) (2) (9th Cir. 2002) (concluding that "evidence of general good character opened the door to the government's evidence of prior bad acts to demonstrate bad character"); United States v. Hegwood, 977 F.2d 492, 496 (III) (9th Cir.1992) ("[W]hen the defendant 'opens the door' to testimony about an issue by raising it for the first time himself, he cannot complain about subsequent government inquiry into that issue.").

         Here, after a defense character witness testified on direct-examination that Montgomery was a "man of integrity," the trial court ruled that Montgomery had placed his general character in issue, thereby opening the door to the State cross-examining the witness about Montgomery's arrests and convictions for drug, alcohol, and driving offenses. On appeal, Montgomery contends that the trial court erred in finding that he placed his general character in issue because the character witness's testimony was nonresponsive to the question originally posed by defense counsel.

         "An inadvertent or nonresponsive answer by a witness that invokes the defendant's good character . . . does not automatically put his character at issue so as to open the door to character evidence." (Citation and punctuation omitted.) Harris v. State, 330 Ga.App. 267, 271 (1) (765 S.E.2d 369) (2014). See Wade v. State, 304 Ga. 5, 10 (3) (815 S.E.2d 875) (2018) (noting that "witnesses' statements were nonresponsive" and thus did not put the defendant's character at issue under OCGA § 24-4-404). See also 2 Christopher B. Mueller et al., Federal Evidence § 4:43 (4th ed. updated July 2018) ("It seems that if a defense witness gives a nonresponsive answer that contains an endorsement of the good character of the defendant, . . . the prosecutor should not be allowed to exploit this situation by cross-examining on bad acts or offering other negative character evidence."). Rather, the defendant must choose to place his good character in issue through the examination of the witness. See Garner v. State, 346 Ga.App. 351, 359 (2), n. 26 (816 S.E.2d 368) (2018) ("Generally, the character of the defendant should not come into evidence unless he chooses to put his character in issue[.]") (citation and punctuation omitted). See also Milich, supra, § 11:4 ("The defendant chooses whether or not to put his character in issue."); Govt. of Virgin Islands v. Roldan, 612 F.2d 775, 778 (II) (A) (3d Cir. 1979) (defendant "opened the door by putting his character in issue," where witness's statement that defendant "never bother[ed] anybody" was not a "gratuitous, unsolicited remark") (punctuation omitted).

[W]hether a statement [by a witness] making reference to the defendant's good character is merely inadvertent or manifests a conscious election [by the defendant to put his character in issue] is a question of fact, determined primarily upon the trial court's assessment of the intent of the accused and his counsel. We afford great deference to the trial court's rulings in this regard.

(Citation and punctuation omitted.) Harris, 330 Ga.App. at 271 (1). Furthermore, the question whether the defendant has intentionally placed his character in issue through the direct-examination of a witness is not assessed in a vacuum; rather, the trial court can consider the questioning of the witness in the context of the trial proceedings as they have unfolded and the trial strategy being pursued by defense counsel. See id.

         Mindful of these principles, we turn to the record in the present case to ascertain whether the trial court abused its discretion in determining that Montgomery intentionally placed his general character in issue. The record reflects that during the defense's opening statement, defense counsel emphasized to the jury:

Pay close attention, if you will, please, to evidence we believe is going to [be] brought forth in the form of witnesses as far as character for Mr. Montgomery. We've given quite a few names to the State and they know about them. And these folks are going to come forth and they're going to take an oath. And these folks are going to swear to tell the truth. And it will be your decision to decide whether you believe them or not, but telling the truth matters to these people. They're going to take time out of their lives and come up here today and I want you to listen closely. Listen to what they're going to say. Listen to what they're going to say about the character of the man sitting there accused.

         Subsequently, during defense counsel's cross-examination of Montgomery's coworker who drove him to the victim's house, the following exchange occurred:

Q: Okay. How long have you known Mr. Montgomery?
A: Let's see, since 2014 at least.
Q: Okay. How would you describe your opinion of Mr. Montgomery's character?
A: As what?
Q: Of Mr. Montgomery's character, what kind of person ...

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