Roland Croyle v. State ( 2021 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 25, 2021
In the Court of Appeals of Georgia
A21A0521. CROYLE v. THE STATE.
BARNES, Presiding Judge.
Roland Evan Croyle repeatedly rammed a sport utility vehicle (SUV) into the
front door of the Twin Peaks restaurant where he and his ex-wife had once worked.
After exiting the SUV, Croyle tossed accelerants throughout the restaurant, then set
the building on fire. When Croyle was later asked why he had done those acts, he
answered that he associated the place with the breakdown of his marriage. At
Croyle’s ensuing criminal trial that spanned 5 days, the jury rejected his defense that
he was not guilty by reason of insanity, and found him guilty but mentally ill on each
count of the indictment.1 After merger, Croyle was convicted of 21 counts of
1
See OCGA § 17-7-131 (b) (1) (“ In all cases in which the defense of insanity,
mental illness, or intellectual disability is interposed, the jury, or the court if tried by
it, shall find whether the defendant is: (A) Guilty; (B) Not guilty; (C) Not guilty by
aggravated assault2 and one count each of first degree criminal damage to property3
and first degree arson.4 Denied a new trial, Croyle contends in this appeal that the trial
court erred by allowing certain expert testimony and by rejecting his claim of
ineffective assistance of trial counsel. Regarding the latter, Croyle claims that his
defense was prejudiced by a stipulation entered with respect to the aggravated assault
counts, and by the absence of certain language from the final jury charge. We affirm.
reason of insanity at the time of the crime; (D) Guilty but mentally ill at the time of
the crime, but the finding of guilty but mentally ill shall be made only in felony cases;
(E) Guilty but with intellectual disability, but the finding of intellectual disability
shall be made only in felony cases.”).
2
As for each aggravated assault count, the indictment alleged that Croyle “did
make an assault upon the person of [an occupant of the restaurant] with a motor
vehicle, which when used offensively against another person is likely to result in
serious bodily injury, by ramming a Mitsubishi Montero into a building occupied by
the victim[.]” See OCGA §§ 16-5-20, 16-5-21.
3
As for this count, the indictment alleged that Croyle “did knowingly and
without authority interfere with the property of TP Augusta, LLC, to wit: the
restaurant Twin Peaks, in a manner so as to endanger human life by ramming a
Mitsubishi Montero into the occupied building[.] See OCGA § 16-7-22.
4
As for this count, the indictment alleged that Croyle “did knowingly damage
by means of fire and explosives a building, the property of TP Augusta, LLC known
as Twin Peaks, . . . under circumstances that it was reasonably foreseeable that human
life might be endangered[.]” See OCGA § 16-6-60.
2
At the outset of the State’s case in chief, the prosecutor presented video
recordings of the incident that had been captured by several surveillance cameras
positioned in and around the premises, as well as the testimony of several law
enforcement officers who had responded to the scene, and recordings of statements
that Croyle made to law enforcement officers after his arrest. Collectively, this
evidence showed that at about 12:45 p.m. on June 26, 2017, a Mitsubishi Montero
Sport slammed twice into the front door of the Twin Peaks restaurant. The driver of
the SUV, later confirmed as Croyle, was attempting to drive the SUV into the
restaurant. The occupants of the restaurant rushed out of the building. After
additional, but still unsuccessful attempts to ram the SUV through the front door,
Croyle got out of the SUV. He then made multiple trips into the building, transporting
from the SUV then tossing about the dining and kitchen areas of the restaurant what
was later confirmed to be aerosol cans, two propane tanks, an open cooler filled with
fuel, and multiple open 5-gallon buckets of fuel. Croyle ignited a fire both in the
kitchen and in the dining area, then briskly returned to the SUV.
Meanwhile, a plainclothes law enforcement officer who happened to have been
driving about a block away heard the dispatcher’s alert of an “accident into the
building” of Twin Peaks and that “someone is trying to set the building on fire.” That
3
officer, who had spent the majority of his 30-year career working in the special
operations divisions (dealing with tactical solutions, the bomb squad, the SWAT
team, etc.), immediately drove to the scene. As he was arriving, he observed
numerous individuals running away from the restaurant. The officer parked his
unmarked vehicle in a space most distant from the restaurant. Assessing the situation
while walking in a nonchalant manner to the building, the officer noted an SUV with
a crashed front end positioned at the front entrance of the restaurant; he then saw a
lone man exit that entrance. Because the man seemed to be walking about freely, the
officer approached him and asked, “What are you doing?” The man, who the officer
identified at trial as Croyle, answered, “I’m blowing the building up.” The officer
sought to engage Croyle, “Why are you doing that?” Croyle responded that the
restaurant had caused his divorce. When Croyle turned his back, the officer spotted
a long, “half-sword” knife tucked through Croyle’s belt loop. The officer attempted
to keep their line of communication open without Croyle realizing that he had been
approached by police. While they were conversing, an apparent civilian who had
taken cover behind one of the vehicles in the parking lot was aiming a firearm at
Croyle and shouting commands for Croyle to stop and to freeze; Croyle was
intermittently yelling back to the man, “Shoot me. Shoot me.” Croyle took off his
4
shirt, revealing “DNR” starkly written across his chest and stomach. Interpreting the
lettering as a “Do Not Resuscitate” message, the officer discerned the situation as
potentially perilous for both of them. Upon realizing that Croyle was partly distracted
by the gunman crouched behind the car, and noticing that Croyle’s attention had also
become partly diverted to an approaching uniformed deputy sheriff who had his
firearm drawn, and further determining that Croyle was not perceiving him (the
plainclothes officer) to be a threat, the officer seized an opportunity to tackle Croyle
to the ground, landing both of them in a large pool of fuel that had collected during
Croyle’s transport of the various containers.
The uniformed deputy sheriff handcuffed Croyle. Smoke was billowing out the
front door, and the officers dragged Croyle to a safe location. The building quickly
became engulfed with flames, and explosions were being heard. Concerned that
arriving fire crews would attempt to enter the building, the plainclothes officer
demanded from Croyle: “What did you put in the building? . . . What about all the
people [in there]?” Croyle answered that he had put some aerosol cans in the
restaurant; and regarding the people, Croyle insisted, “[T]hey got out.” Croyle was
placed in the back seat of the uniformed deputy sheriff’s patrol car and transported
first to a hospital (because of the fuel on his skin), and then to jail.
5
The plainclothes officer who had approached Croyle at the scene was asked at
trial whether he had been able to hold an intelligent conversation with Croyle on that
day; the officer answered,
Absolutely. He knew exactly what he was saying and what his mission
was. . . . He had a well-organized plan. This was not something that he
did at a whim, when he was driving by. . . [I]t was a well-thought-out
plan from beginning to end. I think he made mistakes along the way, but
. . . it was a plan. It was not a spur-of-the-moment onset. And with us
having the conversation, it was just like talking to someone else. I mean,
he responded to my questions; why are you doing this? Well, it caused
my divorce.
The uniformed deputy sheriff who had handcuffed Croyle testified about
several statements that Croyle made to him. For instance, the deputy sheriff testified,
“He said that he was supposed to die and he was supposed to take two in the chest
and one in the head.” The deputy sheriff testified that he understood Croyle as
expressing that he had wanted to die by means of police shooting.
A responding sheriff’s office investigator testified that when he arrived at the
scene, Croyle was still there, but he was unable to speak to Croyle because Croyle
had contaminants on him and thus had to be taken to a hospital. The investigator
testified that fire crews and other fire department personnel were also there; he began
6
to examine the scene for evidence, which investigation he continued the next day.
Numerous photographs taken of the aftermath were shown to the jury.
Two days after the incident, the same investigator, along with an ATF special
agent, interviewed Croyle at a police station. Croyle stated that he was 45 years old,
recently divorced, and living with his parents. He also said that he had two children
whom he could not see because of his ex-wife’s mother. Croyle told that he and his
ex-wife had once worked at the Twin Peaks, but that he was fired after being wrongly
accused of drinking on the job. Croyle expressed being depressed about his life. He
stated that he had been prescribed medications for his depression; that he had been
participating in group counseling; that he sometimes could not remember things (that
other individuals would tell him he had done); and that he found it “hard to think
some days.” When asked what was going on at about 12:35 on the afternoon in
question, however, Croyle readily answered that he had intended to catch on fire, sit
in a booth, stab himself in the chest with the knife he had secured “in [his] back,” then
die. Croyle further revealed that he had planned for the burning building to serve as
his funeral pyre. When asked why he had gone to Twin Peaks to kill himself, he
explained that the restaurant had been the place where he had lost his respect, where
his wife had lost respect for him, where he had realized that he had failed her, where
7
“it hurt me the most,” and where he thus needed to die. Croyle recounted that in
saying his goodbyes, he had visited his children and given them his wisdom teeth
because he had nothing else to give. Croyle further recounted that he had purchased
gasoline from a gas station; that he had tried to drive the SUV into the restaurant so
that he “could get the gasoline and stuff out easier”; that he had thrown propane tanks
and gas cans into the building to fuel the fire; that he had “wanted the pain of being
worthless to stop”; and that when he went back outside the restaurant to retrieve the
last container of gas from the SUV, he was confronted by two men. A recording of
Croyle’s police interview was played for the jury.
Next, the State began presenting the accounts of various individuals who had
been inside the restaurant when Croyle slammed the SUV into the front door. One
such occupant (and an alleged aggravated assault victim), testified that he was eating
lunch with his son-in-law when he heard a “real loud” crash “like metal and glass
breaking.” He immediately stood up and looked in the direction of the sound, and saw
an SUV protruding through the restaurant’s front door. He recalled, “[A]t first, . . . I
wasn’t sure if it was an accident, but when he backed up and hit it again, that’s when
everybody – the waitress escorted everybody out the back.” This trial witness
described that he and other occupants walked around the side of the building and
8
back to the front to see what was going on. From his vantage point, he testified, he
observed a man grabbing from an SUV “five-gallon buckets of gas and a cooler –
well I can’t say gas – liquid and a cooler with liquid in it and then . . . I seen those
propane tanks come out, I told [the individuals who were hiding behind my vehicle]
to move. We’ve got to leave.” The trial witness testified that he and his son-in-law
rushed into his vehicle, then drove away because “I wasn’t sure how bad . . . [the]
explosion was going to be, so I didn’t want to be in that area.” (Defense counsel
asked no questions of that trial witness.)
The State proceeded by calling to the stand one of the restaurant’s cooks who
had been working in the kitchen when he heard a loud boom.5 Initially, the cook
thought perhaps a keg had fallen over, but when numerous individuals ran through
the kitchen and out the back door, he joined them. From across the street, he observed
Croyle – with whom the cook had once worked at that restaurant – trying, about three
of four times, to “get the [SUV] into the front of the building.” The cook testified, “I
guess he realized he couldn’t get it in. Got out of the vehicle and started going in and
out of the building bringing things into the building. Kind of like propane tanks and
some kind of liquid.” (Defense counsel did not ask this trial witness any questions.)
5
This individual was not alleged to have been a victim of aggravated assault.
9
The State moved on to another restaurant patron (and a second alleged
aggravated assault victim). He recounted that he, his wife, and their daughter had just
paid for their lunch when they heard a crash toward the front of the restaurant. He
testified, “[T]hen we heard one of the waitresses say, here he comes again, and we all
turned around and started heading toward the rear of the building. And then we heard
another crash.” He described the exodus at trial as “[j]ust a bunch of people trying to
get out of the building” – rushing to the back door, then funneling out into the back
parking lot. Although this restaurant patron had tried to reach his vehicle, a law
enforcement officer had arrived on the scene and was blocking his path. After
walking to the parking lot next door, the patron saw a man grabbing items from an
SUV and taking them inside the restaurant. Shortly thereafter, as the patron described
at trial, he saw “lots of fire” and could feel the heat. The patron recalled feeling
“shook up.” (Defense counsel asked no questions of this trial witness.)
The State then called to the stand the wife of the previous trial witness (and a
third alleged aggravated assault victim). She likewise recounted that about the time
they were paying for their lunch, they heard a commotion at the front of the
restaurant, and then heard the check-in hostess exclaim that “he’s going to ram
again.” At that point, she (the trial witness) and her family members rushed out the
10
back door. And from her vantage point outside, she observed a person transporting
buckets of “sloshing” liquid into the front entrance of the restaurant. Shortly
thereafter, she saw fire coming from the restaurant. Toward the end of her direct
testimony, she was asked how she had felt during the episode. She replied that after
the first “sound of the thing,” she was concerned that someone had been hurt; but that
after the “second time,” she felt “panicky” and “real, sort of, terrified.” (Defense
counsel asked no questions of this trial witness.)
The State proceeded by calling to the stand one of the restaurant’s server (and
a fourth alleged aggravated assault victim). She recounted that she was in the kitchen
when she heard a crash. She began walking toward the area of that sound, but was
turned around by a manager who instructed her to evacuate the restaurant because
someone had driven a vehicle into the building. Terrified for her safety, the server
exited the back of the building and ran to a nearby business. From there, she observed
in the Twin Peaks parking lot a man carrying buckets from an SUV into the building.
Shortly thereafter, she observed the building on fire. (Defense counsel asked no
questions of this witness.)
At this point in the trial, the court called a lunch recess. Outside the presence
of the jury, the judge asked the lawyers to consider whether any stipulation(s) would
11
be appropriate to pare down the case. When the judge, the lawyers, and Croyle
returned to the courtroom after lunch, the judge revisited the possibility of any
stipulation(s), commenting on the seemingly repetitious testimony being presented
by the State and the lack of any cross-examination thereon by the defense. After an
additional recess, the lawyers reported to the judge that they had agreed to stipulate
to certain matters, and the following occurred:
[THE PROSECUTOR]: . . . [T]his is a stipulation for trial strategy
reasons on both sides, from the State’s perspective to avoid calling out-
of-town witnesses and to avoid the continual presentation of witnesses
that will say the same thing, . . . and I’d just like [defense counsel] to
acknowledge that this was . . . something based on her trial strategy.
THE COURT: Do you agree?
[DEFENSE COUNSEL]: Yes.
...
THE COURT: . . . And so you’ve had a chance to talk about this with
your client?
[DEFENSE COUNSEL]: Yes.
...
[THE PROSECUTOR]: And Your Honor, this would make my going
forward today, I can send several witnesses, essentially, home, and to
pare it down substantially to, I believe, just addressing four witnesses
and among them brief points that are not covered by the stipulation.
12
When the jurors were summoned back into the courtroom, the trial court
announced to them that the State and the defense had reached a number of
stipulations, including one that would establish that the individuals named in the
indictment “were present at the restaurant when allegedly all of these things
happened.” Relevant in this appeal is the stipulation that pertained to the aggravated
assault counts. As the trial court apprised the jurors, the State and defense had agreed
to stipulate:
[O]n June 26th, 2017, the Defendant did make an assault upon – and by
the time we get through, I will tell you, I will list every victim in Counts
3 through 23 of the indictment. But assume that I have inserted every
single name in there. They are agreeing to all of the – those names, by
driving a Mitsubishi – a Mitsubishi Montero into Twin Peaks while
occupied by each of those victims. As to all of these offenses, but
specifically as to this; Defense Counsel is reserving the defenses –
defenses of insanity, mental illness and intellectual disability, which
must be ultimately decided by you.
Continuing with the State’s case-in-chief, the prosecutor called witnesses to
testify primarily about events that had preceded the incident. For instance, the State
called to the stand the individual who had worked at the restaurant as a busser bar
back. He had trained Croyle on his job, which was also to work as a busser bar back.
13
After eliciting that introductory background, the prosecutor swiftly honed the direct
examination “really to the one issue present; sir, when you were working with Mr.
Croyle, did he ever make a statement to you that he should blow the place up or
anything like that?” The witness answered, “Yes, he did. He did.”
Another witness called by the State had worked in a supervisory capacity at
Twin Peaks, and had played a role in firing Croyle. He recounted that after receiving
a report that Croyle was drinking beer behind the bar while on duty, he (the
supervisor) and another manger summoned Croyle into an office. Croyle admitted
that the beverage he had consumed behind the bar was beer, but claimed that he had
brought the beverage into the restaurant. Croyle was fired on the spot, as bringing
outside food or beverage into the building was a rule violation. Croyle began walking
away, but then ran back to the supervisor – screaming that the supervisor would pay
for firing him. This trial witness testified that he had been at the restaurant on the day
Croyle started the fire.
The State called Croyle’s former wife who was the mother of his children. She
testified that during their 16-year marriage, Croyle’s mental state appeared to become
increasingly unstable. She decided to leave him because he had become very abusive.
In August 2016, she moved out of their residence and filed for a divorce. She had
14
helped Croyle get his job at Twin Peaks, and in September 2016, Coyle was fired.
Yet, he continued to show up at the restaurant to see her when she was working. He
also was texting her “[a]ll day long,” so she changed her number. In November 2016,
she stopped working at Twin Peaks. Their divorce became final the following month.
And thereafter, Croyle began receiving counseling. Croyle’s ex-wife further identified
the date of the incident, June 26, 2017, as her birthday.
The State called to the stand the mother of Croyle’s ex-wife. She recounted that
on the morning of June 26, 2017, Croyle came to her home where his two children
were living. She testified that Croyle went into his 15-year-old daughter’s room and
that she heard him say to her, “I want to give you something of mine.” The witness
testified that Croyle then went into his 11-year-old son’s room. The boy was
frightened, and ran out the back door and into a nearby wooded area. Croyle’s former
mother-in-law reminded Croyle that he was not allowed to be there and told him to
leave; Croyle lunged toward her with a knife; she leaned back, and the knife struck
the wall. Croyle’s former mother-in-law told Croyle’s daughter to call the police; as
the daughter was speaking with dispatch, Croyle looked back at his daughter, then ran
to his vehicle and sped away. When a law enforcement officer responded to her
residence, Croyle’s former mother-in-law reported to the officer, among other things,
15
that she had overheard Croyle saying to his children that he was going to commit
suicide that day; that he had given one of his wisdom teeth to each of his children;
and that while at her home, he had threatened to cut off his ring finger.
The State also included in its case-in-chief testimony of a lieutenant at the fire
department who had been assigned to investigate the fire. He had discovered a
surveillance video at a gas station a few miles from Twin Peaks, which recording
showed Croyle purchasing fuel at about 12:22 p.m. on June 26, 2017 (about 20
minutes before Croyle arrived at the restaurant). This recording was played for the
jury.
Croyle elected not to take the stand, but called several witnesses. A counselor
at a short term inpatient facility, who had seen Croyle in individual and group therapy
sessions between February and May 2017, testified that Croyle had expressed feeling
useless because he had not yet gotten another job; that he refused to take personal
responsibility for his situation; that he blamed others for his unemployment; that he
had suggested that his medications were not working properly; and that because
Croyle was having some suicidal ideations, she had recommended that Croyle be
16
admitted into the facility’s crisis stabilization unit.6 Further, the counselor testified
that Croyle was able to hold an intelligent conversation; that he used deflection to
avoid answering questions; and that he had never mentioned that he was hallucinating
or experiencing blackouts or any “disassociation.”
A peer specialist at the same facility, who had met with Croyle in individual
and group settings in May 2017, testified that Croyle was very depressed; that he was
having no contact with his children because of his ex-wife and her mother; that he
had no income; that the medications that he had been taking for two months had not
helped him; and that he had expressed wanting his emotional, mental, and physical
pain to stop. The peer specialist recalled that Croyle had mentioned facing two
upcoming tough days (one of which was his ex-wife’s birthday); and that if he could
get through those two days, he would be okay. The peer specialist testified that she
had last seen Croyle at a group session on the day of the incident, and that Croyle
mentioned to her that it was his ex-wife’s birthday. At that session, Croyle rated his
feelings, using a scale of one to ten, at zero. And when that session ended, Croyle
indicated to the peer specialist that he would not be returning.
6
The trial transcript shows that Croyle spent about 10 days in the crisis
stabilization unit, which period ended on February 14, 2017.
17
Croyle’s treating psychiatrist was qualified at trial to testify as an expert. The
psychiatrist had met with Croyle on May 11, 2017 and May 25, 2017. Croyle
complained of experiencing depression, crying spells, physical pain, nightmares, high
levels of stress, being upset because of unemployment, and the failure of his
prescribed medicines – an anti-depressant drug and a pain medication – to provide
any relief. The psychiatrist testified, “The diagnosis that we had for [Croyle] was the
bipolar disorder type II, generalized anxiety disorder and that some of the emotional
diagnosis indicative of some of his emotional problems could have contributed to the
increased severity of the pain.” The psychiatrist had ascertained that Croyle was
having chronic suicidal thoughts. The psychiatrist increased the dosage on the pain
medication, and added lithium for mood stability.
On cross-examination, the psychiatrist testified that during their two sessions,
Croyle was capable of intelligently answering his questions, and that Croyle never
described experiencing hallucinations, “disassociating,” blacking out, or otherwise
losing time segments.
Croyle also called his parents to the stand. His mother recounted that at about
9:00 a.m. on the date of the incident, Croyle came to her home; that he was crying and
seemed overwhelmed; and that during that time, he was still grieving because of his
18
divorce. He left her home to attend a scheduled group therapy session, but returned
at about 11:00 a.m., telling her that there were no answers for him. Croyle left his
mother’s house again, but came back at about noon; during that brief visit, he handed
her his house keys and wallet, and told her that she could have the small amount of
money left on his debit card; he said that he could not stand the pain anymore and was
finished. As he was walking toward a Mitsubishi SUV, Croyle was crying and saying
that he was of no use even to his own children.
Croyle’s father (who was not at home when Croyle made his visits on June 26,
2017) testified that Croyle was in “extreme distress and despair” because he had put
about 15 years into a marriage and had believed everything was okay. Further,
Croyle’s father revealed that he himself had suffered from mental health conditions,
which he identified as “borderline paranoid schizophrenic and manic depressant.”
Croyle’s father also testified that he had tried committing suicide when he was 18 or
19 years old, and had undergone treatment for about a year. Croyle’s father testified
that his own father was schizophrenic, did not receive any treatment, and had
committed suicide.
In rebuttal, the State called as an expert a licensed psychologist who had been
conducting forensic mental health evaluations since 2001. About a year after the
19
incident, the psychologist began evaluating Croyle, which included interviewing
Croyle in person on three occasions; reviewing Croyle’s heath (including mental)
records; and examining the discovery materials in the instant case such as the
recordings captured by Twin Peaks’ surveillance cameras and the recording of
Croyle’s police statement. The psychologist also performed psychological testing to
screen whether Croyle was feigning psychopatholgy (i.e., “faking mental-health
symptoms”).
When asked whether he had made any diagnostic conclusion regarding Croyle,
the psychologist answered, “I thought at the time of the offenses, he had a major
depression disorder and I also believed he was suffering and experiencing an alcohol-
use disorder.” The psychologist testified, “Croyle, himself, informed me that he was
routinely drinking up to a 12-pack of beer, as well as some vodka, fairly regularly.”
The psychologist further testified that depression disorders could be triggered by the
loss of a significant relationship, and cited that Croyle had recently gone through a
divorce and had lost regular contact with his children.
The psychologist opined that the screening test employed had shown, however,
that Croyle “was actively engaging in faking psycholopathology” during their
interviews. As the psychologist went on to testify,
20
During my interviews with Mr. Croyle, specifically regarding the events
and his mental health at the time of the offense, he came up with a
variety of factors that he said he was experiencing that were not
anything that you would see from anyone who’s having regular and real
mental-health symptoms. . . . [F]or example, he basically indicated that
at some point he had no real memory of doing anything or causing any
offense. He said . . . everything was kind of this vague, sort of state,
where he was like in a dreamlike state, where he’s just kind of going
through the motions. He’s talking about all these command
hallucinations he was having. Things that he was being told to do things
like to go to the restaurant. When you put it altogether and you looked
at the symptoms that he endorsed, they just did not make sense. . . . At
some point he said he basically arrived at the restaurant and he didn’t
even realize he was there until he was on the ground being held for the
police. And again, that’s very atypical to go through and more
importantly it wasn’t consistent with other statements he’d made to me
throughout the three days of interviewing that I did with him.
As the psychologist elaborated,
[O]ne of the statements that he made that I thought was really interesting
was that despite the fact that he had no recollection of the actual events
leading up to the fire and everything else, he was able to specifically tell
me every alleged symptom that he was having at that exact time. Those
two things, quite frankly, just did not go very well together. If someone
was having the sort of vague states as he was explaining, . . . why could
you just remember the symptoms but never remember your actual
actions. Those two things just do not go together.
21
Moreover, the psychologist testified, Croyle’s background records had included
no reference that Croyle had been experiencing a loss of time, and it was only when
he (the psychologist) asked Croyle about his mental health at the time of the incident
did “this vagueness . . . come up.” The psychologist testified that he had discerned
several indicators during his interviews with Croyle that Croyle had more knowledge
of what had occurred than what he was trying to suggest during his interviews. By
way of example, the psychologist cited that Croyle had explained to him that he
faulted Twin Peaks for his marital break up; that he was upset about what he
perceived the restaurant had done to him; and that he had selected his wife’s birthday
to do what he did at the restaurant. The psychologist testified that he had discerned
during his personal interviews with Croyle that, on the day in question, Croyle had
not been some disorganized person experiencing the symptoms that he was reporting
during the interviews; instead, Croyle’s actions at the restaurant demonstrated a
person who had already made plans and was simply executing them. By way of
example, the psychologist cited the amount of materials that Croyle had brought with
him to set the building on fire; and the manner in which he moved about the
restaurant while starting the fire – not in some haphazard or aggressive manner, but
in a careful way so as not to harm himself. Referring to the restaurant’s surveillance
22
recordings, the psychologist pointed out, “[Croyle] tried several times before it
actually went on fire and as soon as it – he saw that it was on fire, he immediately
exited the building.”
Toward the end of direct examination, the psychologist testified,
I think it was clear that Mr. Croyle was very angry about the divorce,
about the loss of the children, about the loss of his job. . . . I’m not
trying to minimize the fact that Mr. Croyle was depressed. I believe he
was depressed. . . . But that wasn’t really the question. The question is
. . . did his symptoms interfere with his ability to know right from
wrong.
When asked as a follow-up question whether it was “his expert opinion . . . that on
the day, during the time in question, that [Croyle] appreciated that his actions would
have consequences,” the psychologist replied, “Yes, my impression that on June 26,
2017, he had the ability to differentiate – know right from wrong, at the time of the
offense. That is my opinion.”
1. Croyle contends that the trial court erred by allowing the psychologist to
testify that he knew the difference between right and wrong at the time the crimes
were being committed. Croyle argues that such testimony violated OCGA § 24-7-704
23
(b),7 because it opined on the ultimate issue. Croyle points out that the testimony was
harmful, given the stipulation, and given his defense of insanity.
In Georgia, a defendant is presumed to be sane. To overcome this
presumption, a defendant wishing to assert an insanity defense has the
burden to prove by a preponderance of the evidence that he was insane
at the time the crime was committed. This affirmative defense of
insanity may be established by showing that, at the time of the act
constituting the crime, the defendant . . . did not have mental capacity to
distinguish between right and wrong in relation to such act[.]
(Citations and punctuation omitted.) Jackson v. State, 301 Ga. 878, 881 (3) (804 SE2d
357) (2017).8
The trial transcript shows that when the expert psychologist gave the opinion
now flagged by Croyle, defense counsel neither objected thereto, nor asked for any
7
OCGA § 24-7-704 (b) (“No expert witness testifying with respect to the
mental state or condition of an accused in a criminal proceeding shall state an opinion
or inference as to whether the accused did or did not have the mental state or
condition constituting an element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone.”).
8
The affirmative defense of insanity may also be established by showing that,
at the time of the act constituting the crime, the defendant had a mental disease
causing “a delusional compulsion as to such act which overmastered his will to resist
committing the crime.” (Citations and punctuation omitted.) Jackson, 301 Ga. at 881(3). But this alternative basis is not argued in this claim of error.
24
remedial relief. Notwithstanding, Croyle claims on appeal that “[b]ecause this is a
preserved evidentiary issue, the test ‘is whether it is highly probable that the error did
not contribute to the verdict.’ Kirby v. State, 304 Ga. 472, 478 [(3) (c) (819 SE2d
468) (2018) (discussing harmless error under OCGA § 24-1-103 (a))].” Croyle’s
claim of a “preserved evidentiary issue” is premised on the trial court’s pretrial ruling
upon a motion in limine as to the admissibility of expert testimony, “I find in favor
of the defense and I’m going to order that no witness, may be laid, expert or
otherwise, may give their opinion as to the ultimate issue as to whether or not the
Defendant meets the legal definition of insane or mentally ill or intellectually
disabled.”9
But where, as here, the case was tried with Georgia’s current Evidence Code
in effect,10
if . . . a party violates [a] ruling [made upon a motion in limine], the
party that moved to exclude the evidence must make a contemporaneous
9
On appeal, however, Croyle does not contest the trial court’s definitive ruling
as to the admissibility of the expert’s opinion; in fact, he acknowledges in his
appellate brief that “the [trial] court correctly determined pretrial that the testimony
was not allowed under [OCGA § 24-7-704 (b)].”
10
Georgia’s current Evidence Code took effect on January 1, 2013. See Ga. L.
2011, p. 99 § 1.
25
objection to its admission when the evidence is offered in order to
preserve the claim of error for appeal because the error, if any, in such
a situation occurs only when the evidence is offered and admitted.
(Punctuation omitted.) Kennison v. Mayfield, 359 Ga. App. 52, 60 (1) (a) (856 SE2d
738) (2021), citing ML Healthcare Svcs. v. Publix Super Markets, 881 F3d 1293,
1305 (II) (E) (11th Cir. 2018) (quoting the advisory committee notes to Fed. R. Evid.
103, which is nearly identical to OCGA § 24-1-103).11 And recently, the Supreme
Court of Georgia expressly resolved any residual tension perceived from cases such
as Reno v. Reno, 249 Ga. 855, 856 (1) (295 SE2d 94) (1982):
[B]ecause OCGA § 24-1-103 (a) (2) is specifically patterned after
Federal Rule of Evidence 103 (b), and the Eleventh Circuit interprets
that provision, based on the Advisory Committee Notes, as requiring a
contemporaneous objection when a ruled-upon motion in limine
regarding the admissibility of evidence is allegedly violated at trial, it is
clear that the adoption of OCGA § 24-1-103 (a) (2) abrogated the
contrary holding announced in Reno that no contemporaneous objection
is required to preserve the alleged error when a party violates such a
ruled-upon motion in limine.
11
See generally State v. Orr, 305 Ga. 729, 740 (827 SE2d 892) (2019) (“Where
rules in the new Evidence Code are materially identical to Federal Rules of Evidence,
we look to federal appellate law, and in particular the decisions of the United States
Supreme Court and the Eleventh Circuit, to interpret them, instead of following our
own precedent issued under the old Evidence Code.”).
26
Williams v. Harvey, __ Ga. __ (1 ) (a) (__ SE2d__) (2021 Ga. LEXIS 256; 2021 WL
1950896; Case No. S20G1121, decided May 17, 2021).
Consequently, because defense counsel did not make a contemporaneous
objection to the psychologist’s opinion complained-of now, Croyle waived review of
the issue under the asserted test. See Williams __ Ga. at __ (1) (a); Kennison, 359 Ga.
App. at 60 (1) (a) (“[A]bsent a contemporaneous objection that plaintiffs’ counsel was
violating the ruling in limine, the mere grant of [the defense] motions in limine did
not preserve error for appellate review.”); ML Healthcare Svcs., 881 F3d at 1305 (II)
(E) (explaining that despite the ruling on the motion in limine, “[b]ecause [the
appellant] failed to object to the two statements [at issue], we review their admission
for plain error”). See generally Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707)
(2013) (noting that “harmless-error” analysis is different from “plain-error
analysis”).12
12
See generally Barton-Smith v. State, 309 Ga. 799, 804 (3), n. 6 (848 SE2d
384) (2020) (analyzing requisite showings for “nonconstitutional harmless error” and
for “plain error”).
27
Assuming arguendo that Croyle is nevertheless entitled to review for “plain
error,”13 his challenge to the testimony is unavailing for lack of “an affirmative
showing that the [cited opinion] probably did affect the outcome below.” (Citation
and punctuation omitted.) Gates v. State, 298 Ga. 324, 326-327 (4) (781 SE2d 772)
(2016) (explaining how to assess whether “plain error” resulted from the admission
of evidence).
The uncontroverted evidence showed that Croyle crafted a plan to crash the
SUV through Twin Peaks’ front door and burn down the restaurant because he
faulted it for his perceived life failures, and that he executed his plan of action to do
so. After he was arrested, Croyle expressed to the deputy sheriff that he had
anticipated being shot to death by police – showing that Croyle understood at the time
13
See OCGA § 24-1-103 (d) (“Nothing in this Code section shall preclude a
court from taking notice of plain errors affecting substantial rights although such
errors were not brought to the attention of the court.”).
Croyle has made no argument that “plain error” occurred in connection with
the jury’s hearing the expert’s flagged opinion. See, however, Russell v. State, 309
Ga. 772, 782-783 (3) (a) (848 SE2d 404) (2020) (noting that “[the appellant] makes
no mention of plain error in his argument on appeal and thus makes no attempt to
show that his challenge meets all four requirements for demonstrating plain error,”
yet analyzing whether plain error resulted from the complained-of issue), and Keller
v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22) (2020) (outlining four circumstances
in which plain error review is allowed and explaining that the Georgia Supreme Court
will not expand such review to other circumstances absent direction from the General
Assembly).
28
he was crashing the SUV into the restaurant during lunch time and setting the place
on fire that such acts were indeed wrong and thus would likely provoke law
enforcement’s response. Although two days later, Croyle expressed during his
jailhouse interview that he sometimes could not remember things (that other
individuals would tell him he had done), Croyle went on to recall in that same police
statement how he had purposefully driven the SUV filled with accelerants into the
Twin Peaks’ front door and set the building on fire, and why he had done those acts.
Furthermore, Croyle’s own mental health expert, the psychiatrist who treated him
during the month before the incident, testified that Croyle never described
experiencing hallucinations, “disassociating,” blacking out, or otherwise losing time
segments. And the psychologist who evaluated Croyle about a year after the incident
detailed how he reached a conclusion that Croyle had more knowledge of the Twin
Peaks incident than what he was then trying to suggest.
While Croyle had a family history of mental illness, and suffered himself from
mental illness, physical pain, and suicidal ideation, “[Croyle] has not drawn any
connection between [those] facts to show that he could not distinguish right or wrong
at the time of the crime[s], especially in light of [Croyle’s] own [statements to the
plainclothes officer who closed-in on him, to the uniformed deputy sheriff who
29
handcuffed him, and to the investigator who interviewed him at the police station]
that he knew exactly what he was doing, he knew the reason that he was doing it, and
he believed that he was justified in doing so.” Jackson, 301 Ga. at 882 (3). See id. at
881 (3) (explaining that the defendant being tried for murdering his sister had not
adduced evidence that would support an insanity defense, where “the evidence
showed that [the defendant had] knowingly intended to confront his sister because he
believed that she had taken his social security check and that he set forth a plan of
action to do so”); Durrence v. State, 287 Ga. 213, 216 (1) (a) (695 SE2d 227) (2010)
(“Bipolar Disorder is a mental illness or mental abnormality but is not the equivalent
of legal insanity.”); Lawrence v. State, 265 Ga. 310, 312 (2) (454 SE2d 446) (1995)
(“Legal insanity is not established by a medical diagnosis that an individual suffers
from a mental illness such as a psychosis.”); Salter v. State, 257 Ga. 88, 89 (1) (356
SE2d 196) (1987) (concluding that the defendant’s psychosis and mental illness did
not meet the test of insanity which would require a verdict of not guilty by reason of
insanity; explaining further that even assuming the defendant’s previous commitment
in a psychiatric hospital raised a counter presumption to the rebuttable presumption
of being sane, the defendant’s administrative release from hospitalization cancelled
any previously existing presumption of insanity, leaving a presumption of sanity,
30
which was rebuttable); Nelms v. State, 255 Ga. 473, 475 (2) (340 SE2d 1) (1986)
(“[T]he fact that a person is schizophrenic or suffers from a psychosis does not mean
he meets the test of insanity requiring a verdict of not guilty on the basis of
insanity.”).14
Hence, in light of the presumption of sanity, the admissible evidence that
Croyle could distinguish right from wrong at the time the acts were committed, and
Croyle’s failure to draw any connection between his mental illness and an (asserted)
inability to distinguish right from wrong, we conclude that Croyle has made no
affirmative showing that the psychologist’s opinion probably affected the outcome
below and has thus failed to establish plain error. See generally Gates, 298 Ga. at
326-327 (3) (finding no plain error resulted from the admission of challenged
evidence, because in light of the overwhelming evidence of the defendant’s guilt, it
14
See also Phillips v. State, 255 Ga. 539, 541 (4) (340 SE2d 919) (1986)
(testimony that the defendant had a “mad,” “wild,” and “unnormal” look did not
amount to even slight evidence that the defendant was legally insane); Nelson v.
State, 254 Ga. 611, 613 (1) (331 SE2d 554) (1985) (“Schizophrenia is a psychosis,
but a psychosis is not the equivalent of insanity – although they may be difficult to
distinguish. It is a mental illness.”) (citation and punctuation omitted); Brown v. State,
250 Ga. 66, 71 (2) (295 SE2d 727) (1982) (“Admission to a mental institution will
not give rise to a presumption of insanity absent an adjudication of insanity.”).
31
could not be said that any error in the admission of the challenged evidence likely
affected the outcome).
2. Croyle contends that he was denied the effective assistance of trial counsel.
To succeed on this contention,
[Croyle] must show that his counsel’s performance was professionally
deficient and that he suffered prejudice as a result. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To establish deficient performance, [Croyle] must prove that his
lawyer performed [her] duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. Further, to establish prejudice, [Croyle] must prove
that there is a reasonable probability that, but for counsel’s deficiency,
the result of the trial would have been different. It is not enough to show
that the errors had some conceivable effect on the outcome of the
proceeding. Rather, [Croyle] must establish a “reasonable probability”
of a different result, which means “a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694 (III) (B). We
need not address both components of this test if [Croyle] has not proved
one of them.
(Citations and punctuation omitted.) Neuman v. State, 311 Ga. 83, 96-97 (5) (856
SE2d 289) (2021).
32
Croyle specifically complains that his trial lawyer: (a) entered the stipulation
regarding the 21 counts of aggravated assault; and (b) failed to ask for certain
language to be included in the final jury charge. When Croyle’s trial lawyer was
asked at the new trial hearing to explain the purpose of the stipulation, she replied
that it was a matter of trial strategy. As the lawyer recounted, the State had already
presented to the jury recordings from the restaurant’s surveillance system, which
showed Croyle committing the acts; the State had already presented to the jury
Croyle’s police statement, wherein Croyle admitted doing the acts; and the State was
in the process of calling to the stand the numerous alleged victims to “testify one after
the other, and essentially they were saying pretty much the same thing over and over
and over again.” As the lawyer explained at the new trial hearing, there was no
question as to who had perpetrated the underlying acts, and Croyle’s defense was that
he was not guilty by reason of insanity; hence, she had determined that the stipulation
would avoid frustrating and exhausting the jurors with ongoing repetitious accounts,
and allow them to remain engaged and alert for consideration of Croyle’s insanity
defense.
When the lawyer was asked at the new trial hearing why she had not requested
that the final charge include specific language from a certain appellate decision, she
33
expressed that it was her goal to have the jury fully instructed on the defense
advanced, but that the language used in the cited decision was not a part of any
pattern jury instruction.
Counsel’s decisions as to which theory of defense to pursue and
which charges to request in light of the defense theory are strategic ones
and therefore are the exclusive province of the lawyer after consultation
with the client. As a general rule, matters of strategy, whether wise or
unwise, do not amount to ineffective assistance of counsel.
(Punctuation and footnote omitted.) Breazeale v. State, 290 Ga. App. 632, 635 (5)
(660 SE2d 376) (2008). But “invoking the words ‘tactics’ and ‘strategy’ does not
automatically immunize trial counsel against a claim that a tactical decision or
strategic maneuver was an unreasonable one no competent attorney would have made
under the same circumstances.” (Citation and punctuation omitted.) Benham v. State,
277 Ga. 516, 518 (591 SE2d 824) (2004).
(a) Stipulation. Croyle advances several arguments to support his position that
entering into the stipulation was unreasonable and prejudicial.
(i) Croyle asserts that it was unreasonable to enter the stipulation as to two of
the aggravated assault counts, because the prosecutor had already reported that the
alleged victims therein – “John Page” and “Carlos Grace” – were not available to
34
testify. Croyle posits in his appellate brief that “testimony was required from the
alleged victims in order for the State to prove either that (1) the victims were likely
to receive a serious bodily injury from the vehicle ramming into the building, or (2)
the victims were in reasonable apprehension of injury from the vehicle ramming into
the building.” (Emphasis supplied.) According to Croyle, without testimony from
“John Page” and “Carlos Grace,” the State would have been unable to prove the
predicate assaults. Croyle further complains that because of the stipulation, he is now
foreclosed from raising evidence insufficiency as to those two counts. For the reasons
that follow, Croyle’s attacks are unavailing.
Regarding the referenced prosecutor’s reports as to “John Page” and “Carlos
Grace,” the trial transcript shows more fully that during the preliminary discussion
between the court and counsel as to whether any stipulation(s) would be appropriate,
the following transpired:
THE COURT: . . . But, remember that you are stipulating – you would
be stipulating to facts as opposed to intent, probably from [the defense]
standpoint.
...
THE COURT: And from [the State’s] standpoint, you would want to
make sure that all the elements of the crime maybe short of intent are
established. I’m still going to allow you to present your witnesses much
35
like you are right now. Do you have any of the listed victims who are in
the indictment who are not available?
[PROSECUTOR]: That are not available – ones that we have – as far as
ones that we have not heard back from. There is a John Page from
Jackson, South Carolina. However, we do have somebody who was
seated with him.
The Court: Okay.
[PROSECUTOR]: I also have . . . a Carlos Grace . . . [who is] not
available.
(Emphasis supplied.)
Given the language italicized above, it appears that the State was prepared to
show that John Page was seated in the restaurant when Croyle began crashing the
SUV into the front door. Furthermore, the reaction by all the restaurant’s occupants
had already been evinced by the restaurant’s surveillance videos, by the testimony of
multiple occupants, and by Croyle’s own answer – “they got out” – to the plainclothes
officer who demanded to know “[w]hat about all the people [in there].” Accordingly,
we find unavailing Croyle’s premise that testimony was required from John Page in
order for the State to prove the predicate assault. Indeed, the Supreme Court of
Georgia has held that “the failure of a victim of an assault to testify at trial does not
necessarily result in the evidence against the defendant being insufficient.” (Emphasis
36
supplied.) Bostic v. State, 294 Ga. 845, 847 (1) (757 SE2d 59) (2014) (rejecting
argument that, because the aggravated assault victims did not testify at trial, there was
no evidence that the victim had been placed in reasonable apprehension of receiving
a violent injury; reciting that “the state of mind of the victim of an assault . . . may be
established by circumstantial evidence”; and reasoning that evidence regarding the
victims’ retreat constituted sufficient circumstantial evidence of their states of
mind).15
Moreover, “Strickland places a heavy burden on the defendant to affirmatively
prove prejudice.” (Citation and punctuation omitted.) Neuman, 311 Ga. at 97 (5). This
means that “[i]n the context of an ineffective assistance of counsel claim, it was
[Croyle’s] burden, not the State’s, to ensure that the trial court had sufficient
15
See Eggleston v. State, 309 Ga. 888, 891 (848 SE2d 853) (2020) (“Even
without considering this direct evidence of guilt, however, the circumstantial
evidence was enough to support [the appellant’s] convictions,” which required a
showing, inter alia, that the appellant was guilty of “the commission of an aggravated
assault.”); Lattimer v. State, 231 Ga. App. 594, 595 (499 SE2d 671) (1998) (the
presence of a weapon may be established by circumstantial evidence, and a
conviction for aggravated assault may be sustained even though the weapon was
neither seen nor accurately described by the victim; some physical manifestation is
required or some evidence from which the presence of a weapon may be inferred).
And see generally Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999)
(explaining that “one can place another person in reasonable apprehension of violent
injury by firing into the air as well as by firing at the victim”).
37
information to determine the merit of [his challenge relating to the aggravated assault
count alleging “John Page” as the victim].” Pierce v. State, 286 Ga. 194, 200 (4) (686
SE2d 656) (2009). Here, in light of the prosecutor’s full report as to “John Page,”
together with the recordings and testimony as to the incident itself, the trial court was
authorized to conclude that Croyle had failed to carry his burden of affirmatively
demonstrating requisite prejudice.
Croyle’s attack with respect to “Carlos Grace” suffers a similar fate. As noted
above, the trial transcript shows that during the preliminary discussion concerning the
appropriateness of any stipulation(s), the prosecutor reported that “Carlos Grace” was
unavailable. But as the trial transcript confirms, the prosecutor later called to the
stand “Carlton Grace.” With the stipulation by then in place, the prosecutor briefly
introduced this trial witness – as we have set out above – as the restaurant’s busser
bar back who had trained Croyle to work as a busser bar back, then the prosecutor
swiftly honed direct examination to elicit from that witness Croyle’s prior statement
that he (Croyle) should blow up the place. While on the stand, and as is relevant to
this contention, Grace went on to recount that “immediately after” the incident, he
“hung around” the parking lot and spoke with one of the responding law enforcement
38
officers; and that in doing so, he reported to that officer that he had once worked with
Croyle, and had come to believe that Croyle’s “mind was not stable.”
In the context of this ineffective assistance of counsel claim, Croyle had the
burden to ensure that the trial court had sufficient information to determine the merit
of his challenge relating to the aggravated assault count alleging “Carlos Grace” as
the victim. See Pierce, 286 Ga. at 200 (4). At the new trial hearing, however, Croyle
did not call as a witness the busser bar back who had testified as “Carlton Grace”; nor
did Croyle otherwise make any pertinent showing that would have required the trial
court to rule in his favor, in light of the trial testimony given by “Carlton Grace” (who
hung around immediately after the incident and spoke with an officer). Consequently,
we conclude that the trial court was authorized to conclude that Croyle had failed to
39
carry his burden of affirmatively demonstrating requisite prejudice.16 See generally
Pierce, 286 Ga. at 200 (4).
(ii) Croyle complains that his trial lawyer did not need to stipulate that he
committed the acts, and that the stipulation was predicated upon her
misunderstanding of Georgia law. At the new trial hearing, Croyle’s trial lawyer
testified to the following:
A: [I]n reading previous case law prior to trying this case . . . , it was
apparent to me that even though I might ask for an insanity charge
16
See generally Bostic, 294 Ga. at 847 (1) (rejecting challenge to the
sufficiency of the evidence on the ground that there “was no evidence of an
aggravated assault on Hollinger, because the indictment named ‘Latana Hollinger’ as
the victim, and when Hollinger testified, she gave her name as ‘Latavia Hollinger’,”
because the testimony proved that the victim was “Latavia Hollinger,” and it was
clear that the two names referred to the same individual); Tarvin v. State, 277 Ga.
509, 510 (3) (591 SE2d 777) (2004) (explaining that where the indictment named the
aggravated assault victim as “Wayne Lee David,” but all the evidence established the
victim to be “Wayne Lee Davis,” no reversible error occurred because “[a]ll
testimony proved that the victim was Wayne Lee Davis, and it [was] clear that the two
names referred to the same individual); Strozier v. State, 277 Ga. 78, 80 (3) (586
SE2d 309) (2003) (rejecting contention that the trial court erred in failing to direct a
verdict of acquittal as to the charge of aggravated assault on “Derek Jones” where the
indictment named the victim as “Derek John,” because the testimony made it clear
that the two names referred to the same individual). Accord Brown v. State, 307 Ga.
24, 27 (1) (834 SE2d 40) (2019) (“Our courts no longer employ an overly technical
application of the fatal variance rule, focusing instead on materiality. The true
inquiry, therefore, is not whether there has been a variance in proof, but whether there
has been such a variance as to affect the substantial rights of the accused.”).
40
doesn’t mean it – that the Court has to actually give it. And so, in trying
to insure that my sole defense that particular charge would be given in
front of the jury, I wanted to basically – that was one of the strategies of
me stipulating.
...
Q: So at the time of Mr. Croyle’s trial, what did you think that you had
to have Mr. Croyle admit in order to get an affirmative defense?
A: That he did the offense.
Recently, in a decision issued in October 2019, the Supreme Court of Georgia
clarified,
[I]n order to raise an affirmative defense, a criminal defendant need not
“admit” anything, in the sense of acknowledging that any facts alleged
in the indictment or accusation are true. Rather, in asserting an
affirmative defense, a defendant may accept certain facts as true for the
sake of argument, and the defendant may do so for the limited purpose
of raising the specific affirmative defense at issue.
McClure v. State, 306 Ga. 856, 863-864 (1) (834 SE2d 96) (2019). But Croyle was
tried in September 2019. And at that time, numerous appellate decisions had held that
“to assert an affirmative defense, a defendant must admit the act, or he is not entitled
to a charge on that defense.” (Citation and punctuation omitted.) McLean v. State, 297
Ga. 81, 83 (2) (772 SE2d 685) (2015); Mangrum v. State, 285 Ga. 676, 680 (6) (681
41
SE2d 130) (2009) (“An affirmative defense is a defense that admits the doing of the
act charged but seeks to justify, excuse, or mitigate it. Accordingly, if a defendant
does not admit to committing any act which constitutes the offense charged, he is not
entitled to a charge on the defense of accident.”) (citation and punctuation omitted);
Pennington v. State, 346 Ga. App. 586, 591 (3) (816 SE2d 762) (2018); see also
McClure v. State, 347 Ga. App. 68, 73-78 (815 SE2d 313) (2018) (McFadden, P. J.,
concurring in part and dissenting in part) (raising concerns about requirement that
defendant admit act to obtain charge on affirmative defense).
Given the state of Georgia law on that issue at the time Croyle was tried, his
complaint regarding his counsel’s understanding of the law does not demonstrate
deficient performance – i.e., that “his lawyer performed [her] duties in an objectively
unreasonable way, considering all the circumstances and in the light of prevailing
professional norms.” (Citation and punctuation omitted.) Neuman, 311 Ga. at 96 (5);
see Debelbot v. State, 305 Ga. 534, 542 (2) (826 SE2d 129) (2019) (noting that “[t]he
reasonableness of counsel’s conduct is examined from counsel’s perspective at the
time of trial and under the particular circumstances of the case”) (citation and
punctuation omitted); see generally Reed v. State, 307 Ga. 527, 535 (2) (b) (837 SE2d
272) (2019) (“Appellant’s trial counsel was not deficient and thus was not ineffective
42
for failing to predict [an appellate decision].”); Rhoden v. State, 303 Ga. 482, 486 (2)
(a) (813 SE2d 375) (2018) (explaining that “there is no requirement for an attorney
to prognosticate future law in order to render effective representation,” and that
“[c]ounsel is not obligated to argue beyond existing precedent”) (citations and
punctuation omitted); Washington v. State, 271 Ga. App. 764, 765 (1) (610 SE2d 692)
(2005) (“[T]he standard for effectiveness of counsel does not require a lawyer to
anticipate changes in the law[.]”) (citation and punctuation omitted).
Moreover, Croyle has failed to establish requisite prejudice in regard to the
stipulation. Croyle asserts that “the jury had no option but to convict him on all 21 of
the aggravated assault counts because of the stipulation,” but the record makes clear
that Croyle advanced an insanity defense. As we have set out above, when the trial
judge relayed to the jurors the parties’ stipulation during the State’s case-in-chief, the
trial judge specifically informed them that “Defense Counsel is reserving the defenses
– defenses of insanity, mental illness and intellectual disability, which must be
ultimately decided by you.” And later, during the final charge, the trial judge recited
the stipulations, again reminding the jurors that “Defense counsel reserves the right
to present a defense of insanity, mental illness and intellectual disability as to each
count of the indictment which must be decided by the jury.” Further, during the final
43
charge, the trial judge tracked the pattern jury instructions for “Insanity at Time of
Act (Right and Wrong)” as set out at 2 Ga. Jury Instructions - Criminal § 3.80.20,
which included,
If you believe beyond a reasonable doubt that the defendant committed
the act charged in this bill of indictment but also believe by a
preponderance of evidence that at the time of the commission of this act,
the defendant was mentally incapable of distinguishing between right
and wrong regarding this particular act, then it would be your duty to
acquit the defendant because of insanity.
In addition to thus instructing the jurors on a possible verdict of “not guilty by reason
of insanity,” the court instructed the jurors on the other possible verdicts of not guilty,
guilty beyond a reasonable doubt but mentally ill, and guilty beyond a reasonable
doubt but with intellectual disability. Thereafter, the trial court sent out with the jury
a preprinted verdict form that directed the jury to find, for each count of the
indictment, whether Croyle was:
___ NOT GUILTY BY REASON OF INSANITY AT THE TIME OF
THE CRIME;
OR
__ GUILTY BUT MENTALLY ILL AT THE TIME OF THE CRIME;
OR
__ GUILTY BUT WITH INTELLECTUAL DISABILITY;
44
OR
__ GUILTY;
OR
__ NOT GUILTY.
(Emphasis in original.) See generally Cheddersingh v. State, 290 Ga. 680, 682 (2)
(724 SE2d 366) (2012) (“A preprinted verdict form is treated as part of the jury
instructions which are read and considered as a whole in determining whether there
is error.”) (citation and punctuation omitted).
Hence, viewing the stipulation, together with the final charge as a whole, we
conclude that “[t]he trial judge adequately and accurately charged the jury on the
applicable law[,] and the jury was properly left to apply the law to the facts of the
case.” Hampton v. State, 272 Ga. 284, 287 (7) (527 SE2d 872) (2000). And “we
presume that jurors follow the law.” Venturino v. State, 306 Ga. 391, 400 (4) (830
SE2d 110) (2019). This contention thus fails to demonstrate prejudice for purposes
of Strickland, supra. See generally Anderson v. State, 286 Ga. 57, 59 (5) (685 SE2d
716) (2009) (rejecting claim that language employed during final jury charge
warranted reversal, because “[v]iewing the charge as a whole, . . . it [was] not
reasonably likely that the jury misapprehended the State’s burden of proof”);
45
Newsome v. State, 355 Ga. App. 13, 18 (2) (842 SE2d 339) (2020) (concluding that
no plain error was established, because the jury was given adequate instructions,
including a preprinted verdict form, for determining the defendant’s innocence or
guilt).17
(iii) Croyle contends that the stipulation was unreasonable as it applied to the
four aggravated assault victims who testified prior to the stipulation, asserting that it
was “possible the jury could have acquitted” him on those counts. As Croyle more
specifically argues, given those individuals’ specific locations at the time in question,
the jury might have concluded that they were neither in reasonable apprehension of
immediately receiving a violent injury nor likely to receive a serious bodily injury.
As detailed above, three of those individuals were patrons in the dining area,
and the fourth such individual was a server in the kitchen. By the time they testified,
the State had already presented evidence that when Croyle first slammed the SUV
into the restaurant’s front door, several occupants stared in that direction; but when
Croyle backed up and slammed the SUV into the front door a second time, all of the
occupants rushed out of the building. Indeed, each of the four victims at issue here
17
See Roberts v. State, 305 Ga. 257, 265 (5) (a) (824 SE2d 326) (2019) (“[T]he
test for prejudice in the ineffective assistance analysis is equivalent to the test for
harm in plain error review.”) (citation and punctuation omitted).
46
testified that his/her attention was immediately drawn to the loud, crashing sound;
and that upon realizing the source of that sound, he/she immediately fled the building.
Croyle has cited nothing in the record indicating that any of those four individuals
could have known: whether the SUV slamming into the front door would actually
breach the door; the direction, speed, or distance the SUV would travel, if the SUV
breached the front door; and/or the extent of direct or collateral injury he/she would
sustain during the ensuing mayhem, as the SUV barreled about the interior of the
restaurant. Hence, Croyle’s assertion – that based on the specific locations of those
four individuals at the time in question, it was “possible the jury could have
acquitted” him of the four respective counts – falls short of establishing that the
stipulation was unreasonable.18
All thing considered, at the point the stipulation was entered, the State had
adduced testimony and recordings evincing that Croyle had planned to burn down the
restaurant because he associated that location with his divorce and other losses; that
he thus purchased containers of fuel at a gas station and put them in the SUV; that
18
See Shields v. State, 307 Ga. App. 830, 831, 834 (1) (a) (706 SE2d 187)
(2011) (reciting that “[a] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” and that
“[t]o overcome the presumption of professional reasonableness, [the appellant] must
offer something more than mere speculation”) (citation and punctuation omitted).
47
about 20 minutes later, he repeatedly crashed the SUV into the restaurant’s front door
in an attempt to drive the SUV into the restaurant; that all the individuals inside
reacted by fleeing the building; that Croyle next made multiple trips into the
restaurant – transporting and tossing about the dining and kitchen areas multiple
propane tanks, aerosol cans, and open containers of fuel; and that he then set the
building on fire. Croyle has cited nothing in the record (including the transcript of the
new trial hearing) showing that the State would not have been able to continue with
its parade of alleged victims to give their substantively similar accounts. Nor has
Croyle demonstrated that his trial lawyer performed deficiently or that he was
prejudiced by using the stipulation as a strategy to truncate the State’s evidence and
to preserve and channel the jurors’ attention to his defense – that although he
undeniably committed the acts, he lacked the criminal intent.
While other counsel, had they represented appellant, may have exercised
different judgment, the fact that trial counsel chose to try the case in the
manner in which it was tried, and made certain difficult decisions
regarding the defense tactics to be employed with which appellant and
his present counsel now disagree, does not require a finding that the
representation below was so inadequate as to amount to a denial of
effective assistance of counsel.
48
(Citation and punctuation omitted.) Cox v. State, 306 Ga. 736, 740 (2) (a) (832 SE2d
354) (2019); see Butler v. State, 292 Ga. 400, 409 (3) (e) (738 SE2d 74) (2013)
(concluding that the trial court correctly determined that the appellant had failed to
carry his burden of proving ineffective assistance of trial counsel, given “the absence
of evidence from which a finding of trial counsel’s deficient performance could be
made, coupled with [the appellant’s] mere speculation concerning the prejudice
purportedly wrought by the unproven deficient performance”) (citation and
punctuation omitted).
(b) Jury Instruction. Croyle complains that his trial lawyer did not request that
the final charge include the following language from Brown v. State, 228 Ga. 215,
219 (3) (184 SE2d 655) (1971): “The act itself may be so utterly senseless and
abnormal as to furnish satisfactory proof of a diseased mind.”
Croyle has demonstrated neither deficient performance nor prejudice. As noted
above, Croyle’s trial lawyer expressed that it was her goal to have the jury fully
instructed on the defense advanced, and pointed out that the exact language used in
Brown was not included in any pattern instruction. And “the mere fact that language
has been employed by the reviewing court in discussing a case or in giving reasons
and argument for a particular decision does not always render such language
49
appropriate for use by the trial judge in charging the jury.” (Citation and punctuation
omitted.) Morehead v. Morehead, 227 Ga. 428, 430 (3) (181 SE2d 59) (1971).
“In reviewing a challenge to the trial court’s jury instruction, we view the
charge as a whole to determine whether the jury was fully and fairly instructed on the
law of the case.” (Citations and punctuation omitted.) Russell, 309 Ga. at 782 (3) (a).
Here, the trial judge adequately and accurately charged the jury on the applicable law,
and the jury was properly left to apply the law to the facts of the case. See Bennett v.
State, 262 Ga. 149, 152 (7) (c) (414 SE2d 218) (1992) (rejecting claim that the trial
court erred by refusing to charge the jury with language that “the act itself may be so
utterly senseless and abnormal as to furnish satisfactory proof of a diseased mind to
warrant a finding of insanity on the part of the defendant,” where the court had given
a sufficient charge on the insanity defense; explaining that “[t]o charge further as
requested by the defendant would, under the circumstances, have been
argumentative”) (citation and punctuation omitted).19
19
See generally Rodriguez v. State, 271 Ga. 40, 42 (1) (518 SE2d 131) (1999)
(“[A] defendant may be found ‘not guilty by reason of insanity at the time of the
crime’ if he meets the criteria of Code Section 16-3-2 [lacked mental capacity to
distinguish between right and wrong in relation to the crime] or 16-3-3 [acted because
of a delusional compulsion which overmastered defendant’s will to resist committing
the crime] at the time of the commission of the crime. OCGA § 17-7-131 (c) (1).”)
(brackets in original); Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986) (“To
50
(c) Given the foregoing, Croyle has established no merit in his claim that he
was deprived of effective assistance of trial counsel.
Although we have evaluated each claim separately, we also recognize
that the effect of prejudice resulting from counsel’s deficient
performance is viewed cumulatively. To that end, we conclude that the
cumulative prejudice from any deficiencies assumed [above] is
insufficient to create a reasonable probability that the results of the
proceedings would have been different in the absence of the deficiencies
alleged.
support a finding that a defendant is not guilty of a criminal act under OCGA §
16-3-3, it must appear: (1) that the defendant was laboring under a delusion; (2) that
the criminal act was connected with the delusion under which the defendant was
laboring; and (3) that the delusion was as to a fact which, if true, would have justified
the act.”) (emphasis supplied).
Croyle has cited nothing that would have justified his acts of crashing the SUV
into an occupied restaurant and/or setting the building on fire; Croyle has cited
nothing in the trial transcript showing that his defense included delusional insanity;
and the facts underlying this case are materially distinguishable from those underlying
Brown. See generally Duck v. State, 250 Ga. 592, 596 (2) (a) (300 SE2d 121) (1983)
(concluding that the trial court correctly refused to charge jury language from Brown,
228 Ga. at 219, that “the act itself may be so utterly senseless and abnormal as to
furnish satisfactory proof of a diseased mind to warrant a finding of insanity on the
part of the defendant”; explaining that Brown was factually distinguishable, and
noting that “in Brown there was expert testimony which would have authorized the
jury to find that the defendant was suffering from delusional insanity”) (citation and
punctuation omitted); Johnston v. State, 232 Ga. 268, 272 (4) (206 SE2d 468) (1974).
51
(Citation and punctuation omitted.) Jackson v. State, 306 Ga. 69, 90 (9) (829 SE2d
142) (2019).
3. Croyle claims that he is entitled to a new trial because of the combined
prejudicial effect of the trial court’s (alleged) errors: (i) allowing into evidence the
complained-of expert testimony; and (ii) rejecting his ineffectiveness claim. See
generally State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020) (“Georgia courts
considering whether a criminal defendant is entitled to a new trial should consider
collectively the prejudicial effect of trial court errors and any deficient performance
by counsel — at least where those errors by the court and counsel involve evidentiary
issues.”).
“When reviewing such a claim, we evaluate only the effects of matters
determined to be error, not the cumulative effect of non-errors.” (Citation and
punctuation omitted.) Cox, 306 Ga. at 743 (2) (e). Having so reviewed Croyle’s claim,
we conclude that his claim lacks merit. See generally Rawls v. State, 310 Ga. 209, 224
(6) (850 SE2d 90) (2020); Lyons v. State, 309 Ga. 15, 26 (8) (a) (843 SE2d 825)
(2020).
Judgment affirmed. Gobeil and Markle, JJ., concur.
52