Boutier v. the State

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

August 26, 2014

In the Court of Appeals of Georgia
A14A0828. BOUTIER v. THE STATE.

BARNES, Presiding Judge.

A jury convicted Joel Boutier of aggravated assault and aggravated battery

based on evidence that he attacked a fellow inmate at jail. On appeal from the denial

of his motion for a new trial, Boutier contends that the trial court erred in declining

to charge the jury on the defense of justification and that his trial counsel rendered

ineffective assistance. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed

innocent, and we view the evidence in the light most favorable to the jury’s verdict.”

Flemister v. State, 317 Ga. App. 749 (732 SE2d 810) (2012). So viewed, the evidence

showed that Boutier and the victim were inmates at the Fayette County jail, where

they were housed in a dormitory-style unit and slept a few bunks away from one

another. On May 14, 2009, the victim awoke early in the morning, before detention
officers had come around the unit to wake up the inmates for the day. The victim

routinely got up before the other inmates so that he could wash up in the bathroom

before a line formed.

After retrieving his toiletries from the drawer under his bunk, the victim began

walking to the bathroom. As the victim passed by Boutier’s bunk, Boutier jumped up

and began shouting at him for making too much noise. The victim responded that he

was not making much noise and that the officers would be waking up the inmates

soon anyway. Following his exchange with Boutier, the victim continued to the

bathroom and washed up for the day.

After washing up in the bathroom, the victim returned to his bunk bed. Boutier

suddenly came over to the victim’s bunk and lunged at him with his fists, striking the

victim in the jaw. Boutier got behind the victim, grabbed him by the neck, and began

scratching and clawing at his face. The victim struggled and tried to break free from

Boutier, and both of them fell to the floor. Boutier then stuck his finger in the victim’s

mouth and ripped the skin around the victim’s lip, causing a deep gash. The wound

was approximately one-and-a-half inches long and bled profusely. The victim had to

receive over ten stitches to repair the damage, and the wound left a permanent scar.

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 A short while after the attack on the victim, a sheriff’s deputy interviewed

Boutier in a medical exam room, where a nurse was treating the victim for his injuries

and Boutier was waiting to be treated for a “mild abrasion or a cut above one eye in

the eyebrow area.” Boutier agreed to the interview after being advised of his rights

under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). During

the interview, Boutier told the deputy that he had been having repeated problems with

the victim getting up early in the morning, making some noise, and waking him up.

According to Boutier, he had asked the jail staff to move him, and in response, the

staff had provided him with a bunk further away from the victim but still in the same

housing unit. Boutier told the deputy that even after he had been moved to a different

bunk, the victim was still waking him up in the mornings, and so he decided he

“would take care of the matter” himself because “nothing else [was] going to be done

by the staff.” Boutier admitted to the deputy that he had “attacked” the victim and had

torn his lip area with his finger.

Boutier thereafter was indicted on charges of aggravated assault and

aggravated battery. At the ensuing jury trial,1 the victim and the sheriff’s deputy who

1
Because Boutier was tried in 2010, the new Georgia Evidence Code does not
apply to any of the evidentiary issues discussed in this case. See Ga. Laws 2011, Act
52, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to

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interviewed Boutier testified to the events as summarized above. Another detention

officer testified regarding the injuries he had observed on the victim after the attack,

and the State also introduced photographs of the victim’s wounds. Boutier elected not

to testify and did not call any defense witnesses.

Following the close of the evidence, Boutier requested a jury charge on the

defense of justification, which the trial court denied. Subsequently, after the charge

of the court, the jury found Boutier guilty of both offenses. Boutier then filed a

motion for a new trial and, upon being appointed new counsel, amended his motion

to claim that his trial counsel had rendered ineffective assistance. After conducting

a hearing in which Boutier’s trial counsel testified, the trial court denied the motion

for a new trial. This appeal followed.

1. Boutier contends that the trial court erred in declining to charge the jury on

the defense of justification. We disagree.

Under Georgia law, a person is justified in threatening or using
force against another when and to the extent that he or she reasonably
believes that such threat or force is necessary to defend himself or
herself against such other’s imminent use of unlawful force.

any motion made or hearing or trial commenced on or after such date.”).

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(Citation and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 594 (5) (a)

(730 SE2d 69) (2012). See OCGA § 16-3-21 (a). However, “a person is not justified

in using force in self-defense if he is the initial aggressor or engages in mutual

combat, unless he withdraws from the encounter and notifies the other participant that

he is doing so.” (Citation and punctuation omitted.) Muckle v. State, 307 Ga. App.

634, 637 (1) (a) (705 SE2d 721) (2011). “It is not error to refuse a justification charge

where there is no evidence to support it.” (Citation and punctuation omitted.)

Jackson, 316 Ga. App. at 594 (5) (a).

Boutier declined to testify at trial or present any defense witnesses to support

a justification defense, and his cross-examination of the State’s witnesses did not

reveal any evidence that would support a defense of justification. Instead, all of the

evidence presented at trial pointed to Boutier as the initial aggressor who violently

attacked the victim because he believed the victim was making too much noise. And,

contrary to Boutier’s assertion in his brief, the detention officer’s testimony that

Boutier had a “mild abrasion or a cut” over one of his eyes, without more, clearly was

insufficient to support a justification charge. Accordingly, the trial court committed

no error in declining to charge the jury on the defense of justification, given that there

was no evidence to support it. See Jackson, 316 Ga. App. at 594 (5) (a) (charge on

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justification defense not warranted where uncontroverted evidence showed that

defendant was initial aggressor and did not communicate a withdrawal); Park v. State,

230 Ga. App. 274, 278 (4) (495 SE2d 886) (1998) (same).

2. Boutier also contends that his trial counsel was ineffective in several

respects. To prevail on his claim of ineffective assistance of counsel under the two-

prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt

2052, 80 LE2d 674) (1984), Boutier “must show both that his counsel performed in

a professionally deficient manner and that there is a reasonable probability that, but

for such deficiency, the result of his trial would have been different.” Smith v. State,

292 Ga. 620, 621 (2) (740 SE2d 158) (2013). If Boutier fails to prove either prong of

the Strickland test, we need not address the other prong. Russell v. State, 322 Ga.

App. 553, 556 (3) (b) (745 SE2d 774) (2013). Guided by these principles, we turn to

Boutier’s specific allegations of ineffective assistance.

(a) As previously noted, a sheriff’s deputy interviewed Boutier in a medical

exam room shortly after the attack. The deputy audio recorded the interview. At trial,

the deputy summarized what Boutier said to him during the interview, but neither the

State nor Boutier’s counsel sought to introduce the audio recording. On appeal,

Boutier contends that his trial counsel was ineffective for failing to introduce the

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audio recording of the interview to impeach the deputy’s testimony about what was

said during the interview and to bring out all of the material details of the interview

before the jury. See generally Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473)

(2012) (discussing introduction of evidence under “rule of completeness,” which

provides that “if part of a conversation is introduced, all that is said in the same

conversation which is relevant to the issue should be admitted”); Cade v. State, 289

Ga. 805, 810 (6) (716 SE2d 196) (2011) (discussing admission of audio recordings

for impeachment purposes). According to Boutier, he was prejudiced by his trial

counsel’s failure to introduce the audio recording because he made statements during

the recorded interview that were not mentioned or were contradicted by the deputy

during his trial testimony and that would have supported a jury charge on the defense

of justification.

Boutier has failed to prove either deficient performance or prejudice resulting

from his counsel’s decision to forego introducing the audio recording of the

interview. In the audio recording of the interview introduced at the hearing on his

motion for new trial,2 Boutier can be heard telling the sheriff’s deputy that the victim

2
A transcript of the audio-recorded interview also was introduced at the new
trial hearing for demonstrative purposes only. There were no material disagreements
between the State and Boutier over the accuracy of the interview transcript.

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had awakened him “every night for a long time” and had previously taunted him

about waking up from the noise. Boutier explains to the deputy that on the morning

in question, the victim had approached him, laughed at him, and taunted him over the

fact that he had been awakened again by the noise by calling him “crazy” and telling

him “it [was] time to get up.” Boutier goes on to admit that the victim “just kept on

egging [him] on, and that is when [he] attacked [the victim].” Boutier further tells the

deputy that he “grabbed [the victim] and fish hooked him, like his cheek” to make the

cut. When the deputy asks Boutier if the victim had hit him “at any point during the

altercation,” Boutier responds that the victim “tried to” but was unsuccessful.

At the new trial hearing, Boutier’s trial counsel testified that he had reviewed

the audio recording before trial and had chosen not to introduce it because of the

damaging admission made by Boutier during the interview. Decisions regarding what

evidence to introduce are matters of trial strategy, see Serrate v. State, 268 Ga. App.

276, 278 (2) (c) (601 SE2d 766) (2004), and “[t]rial 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 and punctuation omitted.) Flemister v.

State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012).

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 We cannot say that trial counsel’s strategic decision to forego introducing the

audio recording of the interview was patently unreasonable. Boutier admits during

the recorded interview that he “attacked” the victim and “fish hooked” his mouth,

causing the severe cut, merely because the victim taunted him about awakening from

the noise. A reasonable defense attorney could have concluded that playing the actual

audio recording, after the deputy’s testimony summarizing the interview, would only

have emphasized Boutier’s damaging admission to the jury. Accordingly, Boutier

cannot show that his trial counsel was deficient. See Dixon v. State, 275 Ga. 232, 234

(5) (564 SE2d 198) (2002) (decision to forego introducing recorded statements for

impeached purposes was reasonable trial strategy).

Nor can Boutier show that the failure to introduce the audio recording caused

him any prejudice. While Boutier claims that his statements to the sheriff’s deputy

during the recorded interview would have supported a charge on the defense of

justification and could have led the jury to acquit him based on that defense, we are

unpersuaded. Boutier does tell the deputy in the interview that the victim had teased

him about waking up from the noise that morning, but verbal insults and taunts are

insufficient, without more, to warrant a justification charge. See Glenn v. State, 253

Ga. App. 333, 334 (559 SE2d 86) (2002) (fact that victim “offered some words” or

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“said some cuss words” to the defendants before the assault was insufficient to

support justification charge, where there was no evidence that the victim attempted

to harm or made any “verbal threats to do physical harm” to the defendants); Carter

v. State, 150 Ga. App. 119, 120 (4) (257 SE2d 11) (1979) (fact that victim and

defendant “got into an argument” and “insults were exchanged” did not warrant

charge on defense of justification). Moreover, while Boutier states in the recorded

interview that at some point during the altercation the victim unsuccessfully tried to

hit him, he also makes clear that he was the one who “attacked” the victim. Thus, the

recorded interview reflects that Boutier was the initial aggressor, and there is no

evidence that he made any effort to communicate a withdrawal from the encounter at

any point; as such, he would not have been entitled to a charge on the defense of

justification based on the recording. See Park, 230 Ga. App. at 278 (4) (justification

charge not warranted where uncontradicted evidence showed that defendant “was the

aggressor and . . . made no effort to communicate a withdrawal from the encounter”).

Accordingly, Boutier cannot show that there is a reasonable probability that, if his

trial counsel had introduced the audio recording, the outcome of the trial would have

been different. It follows that the trial court committed no error in denying Boutier’s

ineffective assistance claim on the asserted ground.

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 (b) Boutier also claims that his trial counsel was ineffective for failing to

introduce photographs of him that were taken on the day of the altercation that

showed injuries to the left side of his face. Boutier points out that his trial counsel

testified at the new trial hearing that he had no strategic reason for failing to introduce

the photographs. Boutier further suggests that the photographs would have buttressed

his argument before the trial court that he was entitled to a charge on the defense of

justification and would have given the jury a more accurate understanding of the

altercation.

Boutier cannot show that his trial counsel was deficient for failing to introduce

the photographs. In his recorded interview with the sheriff’s deputy, Boutier states

that the victim never hit him and indicates that his facial injuries were caused by

another detention officer who “slammed [his] face against the wall” while he was in

the intake cell after his altercation with the victim. Because the photographs were of

injuries sustained by Boutier only after his altercation with the victim, the

photographs were irrelevant to the material issues at trial and thus would have been

inadmissible. Consequently, Boutier’s trial counsel was not deficient for failing to

attempt to introduce the photographs. See Barrett v. State, 292 Ga. 160, 173 (3) (c)

(1) (733 SE2d 304) (2012) (attorney is not deficient for failing to discover and

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present irrelevant and inadmissible evidence); Sevostiyanova v. State, 313 Ga. App.

729, 732 (2) (722 SE2d 333) (2012) (failure to attempt to introduce photographs of

rental car taken after the incident in question did not constitute deficient performance

because the photographs were “irrelevant to the issues at trial”).

In any event, Boutier cannot show that he suffered any prejudice as a result of

the failure to introduce the photographs. During his cross-examination of the sheriff’s

deputy at trial, Boutier’s trial counsel elicited testimony from the deputy that Boutier

had “a mild abrasion or cut above one eye in the eyebrow area” and a “small amount”

of blood. (Notably, trial counsel did not ask the deputy how Boutier received those

injuries, so the jury was unaware that the injuries occurred after his attack on the

victim.) Because the jury was made aware that Boutier had injuries to his face, we

cannot say that there is a reasonable probability that the outcome of the trial would

have been different if the photographs of his facial injuries had been introduced, and

thus Boutier cannot succeed on his ineffective assistance claim. See Gibson v. State,

277 Ga. 486, 488 (2) (591 SE2d 800) (2004) (defendant could not show that the

failure to introduce records was prejudicial to his defense, where records would have

been cumulative of testimony elicited at trial).

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 (c) Lastly, Boutier contends that his trial counsel was ineffective for failing to

move for a mistrial after the victim gave a non-responsive answer to a question on

cross-examination. Specifically, after the victim testified that he believed the attack

“was premeditated and planned,” Boutier’s trial counsel attempted to question the

victim about his belief, but the victim interrupted him and testified:

I . . . sincerely – at this point, I – I – in my heart, I believe he
premeditatedly waited for me to get up that morning. He already had
planned what he was going to do and he – he followed it through. He did
it. He knew that he was – he had gone to court. He wasn’t happy with
his situation with his family and what happened with his case.

(Emphasis supplied.) Boutier’s trial counsel objected to the victim’s testimony but did

not move for a mistrial. The trial court then cautioned the victim and instructed him

to “listen carefully to the question” and to “answer the question.” On appeal, Boutier

contends that his trial counsel was deficient for failing to move for a mistrial and that

he suffered prejudice because the victim’s reference to Boutier’s “case” and “his

situation with his family” suggested to the jury that Boutier was a violent person and

had committed a crime against his family.

To succeed on this ineffective assistance claim, Boutier must make a strong

showing that if his trial counsel had moved for a mistrial, the trial court would have

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abused its discretion if it denied the motion. See Paige v. State, 277 Ga. App. 687,

691 (4) (a) (627 SE2d 370) (2006). Cf. Boykins-White v. State, 305 Ga. App. 827, 831

(4) (701 SE2d 221) (2010) (to prove that trial counsel was ineffective for failing to

file a motion to suppress, the defendant must make a “strong showing” that the

motion would have been granted). “[A] mistrial is warranted only if essential to

preserve a defendant’s right to a fair trial, and the trial court is vested with broad

discretion in making this determination.” Mister v. State, 286 Ga. 303, 306 (3) (687

SE2d 471) (2009).

Boutier cannot succeed on his claim of ineffectiveness. Nothing in the victim’s

testimony indicated to the jury that Boutier was in jail for a violent crime, much less

that the crime had been against his family. Moreover, even if the victim’s testimony

could be construed as referring to Boutier’s character, “a nonresponsive answer that

impacts negatively on a defendant’s character does not improperly place the

defendant’s character in issue” so as to mandate the grant of a mistrial. (Citations and

punctuation omitted.) Carr v. State, 282 Ga. 698, 701-702 (3) (653 SE2d 472) (2007).

In any event, the jury, of course, already knew that Boutier had a criminal history,

given that the attack at issue occurred in jail among two inmates. Consequently,

Boutier has failed to make a strong showing that the trial court would have abused its

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discretion by denying a requested mistrial, and thus he cannot prevail on this

ineffective assistance claim. See Paige, 277 Ga. App. at 691 (4) (a).

Judgment affirmed. Boggs and Branch, JJ., concur.

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