BONNER v. the STATE.

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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

June 27, 2019

In the Court of Appeals of Georgia
A19A0168. BONNER v. THE STATE.

COOMER, Judge.

Lynnward Bonner appeals his conviction for three counts of aggravated assault

(OCGA § 16-5-21) on which he was found guilty but mentally ill, one count of

criminal damage to property in the first degree (OCGA § 16-7-22), one count of

possession of a firearm during the commission of a felony (OCGA § 16-11-106), and

one count of discharge of a firearm on the property of another (OCGA § 16-11-104).

On appeal, Bonner raises three issues: (1) that the trial court erred by improperly

admitting other acts evidence under OCGA § 24-4-404 (b), (2) that his trial counsel

was ineffective for failing to request funds for an expert, and (3) that the State

committed a Brady violation. For the reasons stated below, we affirm.
 When a criminal conviction is appealed, the evidence is viewed in the light

most favorable to the verdict. Whaley v. State, 337 Ga. App. 50, 50 (785 SE2d 685)

(2016). The record shows that Bonner lived and worked as a handyman at Shady

Acres Trailer Park, which was owned by his mother. Norma Auceda Gomez

(“Gomez”) and her family were Bonner’s neighbors at Shady Acres Trailer Park.

Bonner, who had a history of mental health issues, testified that he sometimes

experienced hallucinations such as patterns, projected holograms, and faces in clouds

and trees.

Around 6:00 a.m. on September 2, 2015, Bonner purportedly saw a hologram

of a man and woman on the side of Gomez’s trailer. The man’s face looked “mean”

and he had seen it on prior occasions. Bonner came to the conclusion that there was

an ongoing hostage situation and he asked the hologram of the woman if she was

ready to die, to which she shook her head “no.” Bonner responded to her saying “no,

this has got to end. I’m ready to die if you are,” and the hologram woman nodded

“yes.” Bonner then knocked on Gomez’s trailer door and an unfamiliar voice told him

to wait a minute. When no one came to the door after a few minutes Bonner left to

return to his trailer, and on the way back he encountered what he thought was a drone

and he asked it if the situation at Gomez’s trailer was legitimate, to which the drone

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responded affirmatively. He then retrieved his shotgun and ammunition from his

trailer, returned to Gomez’s trailer, and shot twice into the side of the trailer, where

the perceived holograms were located. The shots went into the master bathroom,

where one of Gomez’s daughters was getting ready for school. The daughter received

a minor injury.

After the shooting, no one came out of the trailer and Bonner returned to his

work trailer. On his way back, Bonner saw some children and he did not want them

to see the gun so he put it down by his side and away from them. When Bonner

returned to his work trailer, he “realized that things weren’t going like I thought they

were” when no gunmen or hostages emerged from Gomez’s trailer. Bonner then saw

police cars drive into the park, and he realized that he was “screwed” because he

knew that the officers were looking for him. He put the shotgun and ammunition in

a bedroom closet and went into the bathroom to hide. Bonner heard the deputies enter

the trailer and call out, but he did not respond. He remained hidden in the bathroom

until the deputies came in and arrested him.

At trial, Bonner stated that he believed the holograms were on Gomez’s trailer

and people were inside the trailer. He said that is why he asked the female hologram

if she was prepared to die. He further stated that when he saw the sheriff’s cars after

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the shooting he knew that it was likely that what he had done was not the right thing

to do. In addition, he acknowledged that it was not right for him to shoot the little

girl.

Dr. Darcy Shores from the Department of Behavioral Health and Development

Disabilities (DBHDD) evaluated Bonner on January 4, 2016 and determined that he

was incompetent to stand trial. Bonner was then admitted to Central State Hospital.

On May 24, 2016, Bonner was again evaluated for competency at Central State

Hospital and was determined to have been restored to competency. On December 5,

2016, Dr. Sanjay Shah from the DBHDD evaluated Bonner for criminal

responsibility. During that evaluation, for the first time since being arrested, Bonner

relayed a version of events that included holograms on Gomez’s trailer and a belief

that there was a hostage situation. Dr. Shah concluded that Bonner was criminally

responsible. Dr. Shah testified at trial that Bonner possessed the mental capacity to

distinguish right from wrong because there was no prior documentation of Bonner

relaying a version of events that included holograms and hostages. Further, Dr. Shah

testified that even if Bonner had actually believed that a hostage situation was

ongoing, shooting a gun into the trailer would not have been a justifiable act. Finally,

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Dr. Shah said that he believed that Bonner’s actions after the shooting were

inconsistent with an alleged attempt to rescue the people inside the trailer.

Bonner was found guilty but mentally ill on three counts of aggravated assault,

and guilty of one count of criminal damage to property in the first degree, one count

of possession of a firearm during the commission of a felony, and one count of

discharge of a firearm on the property of another. Bonner timely filed a motion for

new trial. Following a hearing, the trial court denied his motion. This appeal

followed.

1. Bonner contends that the trial court improperly admitted evidence of a prior

act under OCGA § 24-4-404 (b) for the purposes of intent, identity, absence of

mistake or accident, and consciousness of guilt. Specifically, he argues that the

evidence pertaining to a 2008 incident at Shady Acres Trailer Park had no probative

value for any of the purposes listed above. We disagree.

“[O]n appeal, we review the admission of Rule 404 (b) evidence for a clear

abuse of discretion.” Gunn v. State, 342 Ga. App. 615, 620 (1) (804 SE2d 118) (2017)

(citations and punctuation omitted).

In the 2008 incident, which was admitted into evidence at trial, Bonner

attempted to stop a domestic abuse situation that occurred at Shady Oaks Trailer Park.

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He heard one of his neighbors, who he believed had been a prior victim of domestic

abuse, cry out for help. In response to his neighbor’s cry for help Bonner fired a gun

into the air and told the abusive neighbor to stop. After firing the shot, Bonner

believed the abuse was still ongoing. He ultimately fired three shots outside of the

neighbor’s trailer over the span of several minutes. By that time, police arrived and

Bonner returned home.

(a) Bonner first argues that he was not afforded notice of the purposes for

which the Rule 404 (b) evidence would be used at trial. Prior to trial, the State

provided notice to Bonner that it would use the evidence to show intent, identity,

absence of mistake or accident, and consciousness of guilt. At trial, the trial court

instructed the jury to limit its consideration of the evidence to those same purposes.

Bonner’s notice argument hinges on the State’s assertion during the motion for new

trial hearing that it had admitted the evidence to rebut Bonner’s defense of insanity.

Despite this post-trial assertion by the State, the notice Bonner received before trial

of the Rule 404 (b) purposes corresponded with the purposes for which the evidence

was actually used at trial. Therefore, Bonner’s argument that he did not receive proper

notice is without merit.

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 (b) On the merits, we find that the Rule 404 (b) evidence was admissible for

the purpose of intent. In his brief, Bonner argues that by virtue of pleading not guilty

by reason of insanity, he admitted to the act of shooting into Gomez’s trailer, and

therefore, his intent was not at issue during trial.

If we were to adopt Bonner’s argument, Rule 404 (b) evidence would never be

admissible to show intent when an accused pleads not guilty by reason of insanity.

However, the Georgia Supreme Court has held that when a defendant pleads not

guilty by reason of insanity, prior act evidence is admissible insofar as it “aids in

identification or shows the state of mind . . . of the accused.” Blake v. State, 239 Ga.

292, 295 (1) (236 SE2d 637) (1977) (citations omitted). Contrary to Bonner’s

assertions, he placed his intent at issue during trial by pleading not guilty by reason

of insanity. See Kirk v. State, 168 Ga. App. 226, 231 (13) (308 SE2d 592) (1983)

(Trial court did not err in instructing the jury on the State’s burden to prove criminal

intent where defendant pled not guilty by reason of insanity.). Therefore, the Rule 404

(b) evidence about the 2008 incident involving Bonner was relevant and the State was

permitted to use it to show Bonner’s intent at the time of the shooting. See Olds v.

State, 299 Ga. 65, 75 (2) (786 SE2d 633) (2016) (“[B]ecause a plea of not guilty puts

the prosecution to its burden of proving every element of the crime — including

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intent — evidence of other acts that tends to make the requisite intent more or less

probable to any extent is relevant. . . . And it is true whether or not intent is actively

disputed at trial.” ((citation omitted)). Because the Rule 404 (b) evidence was

properly admitted for the purpose of intent, Bonner has not shown reversible error.

(c) Even if the Rule 404 (b) evidence was improperly admitted to show

identity, absence of mistake or accident, or consciousness of guilt, the error is

harmless. We will uphold a trial court’s decision to admit evidence of a prior act

under OCGA § 24-4-404 (b) if one of its cited bases is justified. See Bradshaw v.

State, 296 Ga. 650, 657 (3) n.5 (769 SE2d 892) (2015) (“Having determined that the

evidence was admissible as to intent and motive, we need not examine whether it was

also admissible on the issue of identity.”)

2. In his second enumeration of error, Bonner argues that his privately-retained

trial counsel was ineffective for failing to request public funds to hire and present an

independent psychiatric expert. We again disagree.

To prevail on this claim, [Bonner] is required to prove both that
his counsel’s performance was professionally deficient and that he was
prejudiced by the deficient performance. To prove deficient
performance, [he] must show that his lawyer performed at trial in an
objectively unreasonable way considering all the circumstances and in
the light of prevailing professional norms.

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Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013) (citations and

punctuation omitted). See also Strickland v. Washington, 466 U.S. 668 (104 SCt

2052, 80 LE2d 674) (1984). Here, Bonner’s claim fails because he has not shown that

his trial counsel’s representation fell below an objective standard of reasonableness.

Prior to the motion for new trial hearing, Bonner’s appellate counsel – a public

defender – applied for, and obtained, $2,000 from the trial court in order to retain the

services of a forensic psychiatrist, Dr. Norman. Dr. Norman testified at the motion for

new trial hearing that Bonner did not understand right from wrong when he shot into

Gomez’s trailer. Bonner’s trial counsel testified at the same hearing that she

considered hiring an expert, but it was cost prohibitive. She also said that she “was

not aware of any mechanism, by which we could get the State or – you know,

someone else to help subsidize that cost or pay for that cost.”

Under federal law

Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may
request them in an ex parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are necessary and
that the person is financially unable to obtain them, the court, or the
United States magistrate judge if the services are required in connection

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 with a matter over which he has jurisdiction, shall authorize counsel to
obtain the services.

18 USCA § 3006A (e). Our General Assembly has enacted no analogous statute. In

Georgia, an indigent person can apply for the services of the Georgia Public Defender

Council to obtain representation in a criminal proceeding. See OCGA § 17-12-1 et

seq. Under this system, the “council shall be responsible for assuring that adequate

and effective legal representation is provided . . . to indigent persons who are entitled

to representation[.]” OCGA § 17-12-1 (c).

Bonner has cited no authority, and we have found none, for the proposition that

a criminal defendant with privately-retained counsel may apply for, and make use of,

taxpayer money to aid in their defense. “[W]hen addressing a claim of ineffectiveness

of counsel, the reasonableness of counsel’s conduct is examined from counsel’s

perspective at the time of trial.” Redwine v. State, 280 Ga. 58, 62-63 (3) (c) (623

SE2d 485) (2005) (citation omitted). Here, Bonner’s trial counsel did not perform

deficiently because no clear line of authority existed in Georgia at the time of trial

which would have allowed Bonner to obtain public money to hire an expert. Counsel

cannot be faulted for failing to raise every conceivable issue in a case, particularly

where, as here, a theory of law is untested or unsettled. That would be both an unduly

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heavy and impractical burden. Because Bonner has not met the first prong of the

Strickland test, his claim of ineffective assistance of counsel fails. See Smith v. State,

296 Ga. 731, 733 (2) (770 SE2d 610) (2015) (“Failure to satisfy either prong of the

Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not

incumbent upon this Court to examine the other prong.” (citation omitted)).

3. In his third enumeration of error, Bonner asserts that the State committed a

Brady violation by failing to disclose payments made by the District Attorney’s office

to Dr. Shah, a court-appointed psychiatrist, for his time spent testifying.1 This claim

also lacks merit.

In order to prevail on [a] Brady claim, [the defendant] must show:
(1) the State possessed evidence favorable to the defendant; (2) the
defendant did not possess the favorable evidence and could not obtain
it himself with any reasonable diligence; (3) the State suppressed the
favorable evidence; and (4) had the evidence been disclosed to the
defense, a reasonable probability exists that the outcome of the trial
would have been different.

Schofield v. Palmer, 279 Ga. 848, 852 (2) (621 SE2d 726) (2005) (citations omitted).

1
Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

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 Bonner alleges that Dr. Shah testified that he was paid by the Monroe County

District Attorney’s office for his testimony at trial. However, the record does not

support his contention. At the motion for new trial hearing, the defense called Dr.

Shah, and during direct examination, the following exchange occurred:

Q. Okay. All right. When you testified at trial, who paid for your
testimony?
A. So I received a check from the Judicial Circuit.
Q. From? The Judicial –
A. Monroe County Judicial Circuit, yes.
Q. The Towaliga Judicial Circuit
A. Yeah.
Q From the District Attorney’s Office?
A . I -- I looked at the check, it said the -- the Judicial Circuit.
Q. Who -- with whom did you negotiate fees with?
A. So I -- the one that was -- Paul Hemmann and so I discussed my fees
with him, just as I discussed my fees with you during our
correspondence.
Q Okay. And he -- and it was with him that you -- I understand you have
a flat rate?
A. So I -- I capped -- I capped it during my testimony there. That’s
correct. I believe I might have capped it at four hours or so.
Q. And you sent an invoice to the District Attorney’s Office?
A. That’s correct
Q. And you were paid?
A. And I was paid by, yeah, the Judicial Circuit.

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 THE COURT: You were paid by the Circuit, which is a CPA in Griffin
that covers our Circuit for us.

No further discussion about the payment to Dr. Shah occurred on the record.

Regardless of who paid Dr. Shah for his testimony, Bonner has failed to show

that he used reasonable diligence prior to trial to discover the alleged Brady evidence.

Bonner did not proffer how or when he discovered the information pertaining to Dr.

Shah’s payment. As a practical matter, Bonner could have attempted to speak with

Dr. Shah prior to trial regarding any compensation he was receiving. However, the

record fails to disclose what steps, if any, Bonner took to try and obtain this

information. See State v. James, 292 Ga. 440, 442 (2) (738 SE2d 601) (2013)

(“Evidence is not regarded as “ suppressed” by the government when the defendant

has access to the evidence before trial by the exercise of reasonable diligence.”

(citation omitted)). Bonner’s presentation of this evidence at a post-trial hearing,

without establishing the circumstances under which he acquired the information, does

not satisfy the due diligence prong of the Brady test. See Timberlake v. State, 246 Ga.

488, 491 (1) (271 SE2d 792) (1980) (“[D]iligence before trial will not be inferred

from diligence after conviction.”). Because Bonner has not shown that he could not

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have obtained the alleged Brady evidence through the exercise of reasonable

diligence, this claim fails and Bonner’s convictions are affirmed.

Judgment affirmed. Doyle, P. J., and Markle, J., concur.

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