Jahaziel Tremblay v. State , 329 Ga. App. 139 ( 2014 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
September 24, 2014
In the Court of Appeals of Georgia
A14A1175. TREMBLAY v. THE STATE.
BARNES, Presiding Judge.
A jury found Jahaziel Tremblay guilty of aggravated assault, and the trial court
denied his motion for new trial. On appeal, Tremblay contends that the evidence was
insufficient to support his conviction, the trial court erred by charging the jury that
a defendant claiming justification must show that he did not act in a “spirit of
revenge,” and his trial counsel rendered ineffective assistance. For the reasons
discussed below, we affirm.
Following a criminal conviction, we view the evidence in the light most
favorable to the jury’s verdict. See Flemister v. State, 317 Ga. App. 749 (732 SE2d
810) (2012). So viewed, the evidence showed that on the night of July 26, 2011, a
group of North Gwinnett High School students, including the victim, were at a party
in the Wild Timber subdivision. Tremblay, who was older and no longer in high
school, came to the party with some of his friends and got into a heated argument
with one of the students. Tremblay and the student went outside as they continued
their argument and many other party goers, including the victim, followed them. The
street where the party was taking place dead-ended into the parking lot for the
subdivision’s clubhouse, and the group walked down the street in that direction as
Tremblay and the student continued to argue. Near the parking lot, the student began
punching Tremblay. Tremblay did not fight back and after he was struck several times
by the student, he got in his car and drove off.
Around midnight, Tremblay drove back to the subdivision with two friends and
parked in the clubhouse parking lot. The victim, who was still hanging out with
several other students, saw the car approach and walked down to the parking lot to
see who had just arrived to join the party. As the victim approached the car, he
realized that it was Tremblay and stopped. The victim, who has witnessed the prior
altercation but had not participated in it, expected Tremblay to ask him to go find the
student who had punched him. Instead, Tremblay walked up to the victim and struck
him several times in the head with a hard object. The victim fell to the ground but
then got up and ran into the woods as Tremblay began to chase him. Tremblay
ultimately returned to his car with his two friends and drove off when a parent in the
neighborhood came outside and shouted that she was calling the police and they
2
needed to leave. The victim was taken to the hospital and received seven staples in
the back of his head.
The next day, a police officer met with the victim, who identified Tremblay as
his assailant and told the officer that he believe he had been struck with “something
like a tire iron.” The officer accompanied the victim to the parking lot where the
attack had occurred and found the victim’s hat, his broken cell phone, and a metal bar
“all in the same area” of the woods. The officer noted that the metal bar was
approximately 18-20 inches long with a 90 degree bend at the end, and at night could
have easily been mistaken for a tire iron. The officer also noted that the metal bar had
a tip on it that was consistent with the shape of the wound on the victim’s head.
Tremblay was arrested and indicted on one count of aggravated assault. At the
ensuing jury trial, the victim and the police officer who interviewed him the day after
the attack testified to the events as summarized above, and the State introduced into
evidence the metal bar found in the woods after the attack.
Among other witnesses, the State also called one of Tremblay’s two friends
who had returned with him to the clubhouse parking lot on the night of the attack.
The friend testified that when he met up with Tremblay at his house that night after
the student had punched him, Tremblay had been extremely angry and wanted to
3
return to confront the student. According to the friend, when they subsequently
returned to the subdivision and the victim approached them in the parking lot,
Tremblay pulled the metal bar out of his car and struck the victim with it when the
victim questioned why they were returning to the party. The friend further testified
that the victim “might have said something smart” but had not been armed, had not
attacked or otherwise been physically aggressive towards Tremblay, and, in fact, had
only been wearing a bathing suit and a hat.
Tremblay elected not to testify in his own defense. He did call as a defense
witness his other friend who had returned with him to the subdivision that night. The
friend testified that had not been “paying attention” and thus had not seen Tremblay
hit the victim, but he had seen the victim fall to the ground after being hit. When
asked if the victim had been “threatening or loud” when he approached them in the
parking lot, the friend said that the victim had simply had an “attitude.”
After hearing all of the testimony, the jury found Tremblay guilty of the
charged offense. Tremblay filed a motion for new trial, and then an amended motion
after he was appointed new counsel. Following a hearing, the trial court denied
Tremblay’s amended motion for new trial, resulting in this appeal.
4
1. Tremblay contends that there was insufficient evidence to convict him of
aggravated assault. When evaluating the sufficiency of the evidence, “[w]e neither
weigh the evidence nor judge the credibility of witnesses, but determine only
whether, after viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (Citations and punctuation omitted.) Sidner v. State, 304 Ga. App.
373, 374 (696 SE2d 398) (2010). Applying this standard to the record in this case, we
conclude that Tremblay’s challenge to the sufficiency of the evidence is without
merit.
“A person may be found guilty of aggravated assault if the State proves (1) an
assault and (2) aggravation by use of any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result in serious bodily
injury.” (Citations and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608
(1) (754 SE2d 395) (2014). See OCGA § 16-5-21 (a) (2). The State may prove an
assault by showing that the defendant “[a]ttempts to commit a violent injury to the
person of another” or “[c]ommits an act which places another in reasonable
apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). The
indictment in the present case alleged that Tremblay committed aggravated assault
5
by hitting the victim in the head with “a piece of metal, which, when used offensively
against another person is likely to result in serious bodily injury.”
The combined testimony of the victim, the police officer who interviewed him
and found the metal bar in the woods, and the two friends who accompanied
Tremblay to the parking lot, along with the introduction into evidence of the metal
bar used in the attack, was more than sufficient to sustain Tremblay’s conviction for
aggravated assault. And while Tremblay argues that the State failed to disprove that
he was acting in self-defense,1 Georgia law is clear that “a person is not justified in
using force in self-defense if he is the initial aggressor.” (Citation and punctuation
omitted.) Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011).
Because all of the testimony presented at trial pointed to Tremblay as the initial
aggressor who attacked the unarmed victim, a rational jury was authorized to find
beyond a reasonable doubt that the State disproved Tremblay’s self-defense claim and
1
Tremblay also argues that the evidence presented by the State failed to
exclude every alternative, reasonable hypothesis of his innocence, but the reasonable
hypothesis rule applies only when all of the evidence against the defendant was
circumstantial. See Meeks v. State, 281 Ga. App. 334, 337 (636 SE2d 77) (2006).
There was direct evidence of Tremblay’s guilt based on the eyewitness testimony of
the victim and Tremblay’s two friends.
6
that he was guilty of aggravated assault as alleged in the indictment. See Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Tremblay further contends that the trial court committed reversible error by
charging the jury that a defendant claiming justification must show that he did not act
in a “spirit of revenge.” We are unpersuaded.
Because Tremblay did not object to the jury charge on justification, we review
the charge only for plain error. See OCGA § 17-8-58 (b); Booker v. State, 322 Ga.
App. 257, 260 (2) (744 SE2d 429) (2013).
Reversal based on plain error is authorized if the instruction was
erroneous, the error was obvious, the instruction likely affected the
outcome of the proceedings, and the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Satisfying all four
prongs of this standard is difficult, as it should be.
(Citation and punctuation omitted.) Booker, 322 Ga. App. at 260 (2). See White v.
State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012); State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011).
7
Regardless of whether any of the other prongs were satisfied,2 Tremblay has
failed to show plain error in this case because he cannot demonstrate that the alleged
error in the jury charge likely affected the outcome of the proceedings. The evidence
was overwhelming that Tremblay was the initial aggressor who attacked the unarmed
victim with the metal bar, and thus that Tremblay did not act in self-defense and was
guilty of aggravated assault. Given the overwhelming evidence of Tremblay’s guilt,
there was no plain error in the jury charge. See McBurrows v. State, 325 Ga. App.
303, 314 (7) (750 SE2d 436) (2013).
3. Lastly, Tremblay contends that his trial counsel rendered ineffective
assistance by failing to object to the “spirt of revenge” language in the jury charge on
justification. Notably, Tremblay was appointed new counsel after his conviction who
filed an amended motion for new trial on his behalf, but his counsel did not raise any
ineffective assistance claims in the amended motion or at the hearing on the motion.
Any ineffective counsel challenge will be deemed waived if the new
attorney files an amended motion for new trial and does not raise the
issue before the trial court so that the challenge can be heard at the
2
In the recent case of Hodges v. State, 319 Ga. App. 657, 660 (3), n. 3 (738
SE2d 111) (2013), we questioned whether the suggested pattern jury instruction on
justification and several of our cases indicating that an absence of revenge is an
essential element of justification are still good law.
8
earliest practicable moment, i.e., during the hearing on the amended
motion.
(Citation and punctuation omitted.) Pye v. State, 274 Ga. 839, 840 (1) (561 SE2d 109)
(2002). See also Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131) (2014).
Accordingly, Tremblay has waived his claim of ineffective assistance, and we
therefore will not consider it on appeal.
Judgment affirmed. Boggs and Branch, JJ., concur.
9