Curtis v. the State
330 Ga. App. 839
Ga. Ct. App.2015Background
- Timothy Dwayne Curtis was convicted by a jury of armed robbery, two counts of aggravated assault (one charged as assault with a deadly weapon and one as assault with intent to rob), and cruelty to animals; sentences included life for armed robbery and concurrent terms for other counts.
- Facts: after a household fight, Curtis drove a friend (Rogers) to get two men; those men returned to the house, one pistol-whipped and robbed victim Stanley Wells, and gunshots were fired inside the house; Wells sustained head lacerations and two gunshot wounds to his leg.
- Evidence included Wells’s testimony identifying Curtis’s role, Rogers’s testimony (partly favorable to Curtis), neighbor and police testimony about gunfire, physical scene evidence (casing, magazine, blood), and a wounded dog found in a locked room.
- Curtis moved for a new trial asserting multiple ineffective-assistance-of-counsel (IAC) claims: counsel failed to request transcripting of certain proceedings, failed to subpoena/authenticate phone records, failed to impeach several State witnesses with prior felony convictions, and failed to fully elicit terms of Rogers’s plea deal.
- At the motion hearing Curtis proffered some prior-conviction records but did not present phone-record testimony or affidavits to show what such records would have proved.
- On direct appeal the Court of Appeals affirmed convictions except it held the aggravated-assault-with-intent-to-rob count merged into the armed-robbery conviction and vacated that conviction and sentence, remanding for resentencing.
Issues
| Issue | Curtis's Argument | State's Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for not requesting recording/transcript of opening, closing, voir dire | Failure deprived record and prejudiced defense | No legal requirement to transcribe openings/closings or entire voir dire in non-death felony cases; speculative harm | No IAC; failure to record not deficient or prejudicial |
| Trial counsel ineffective for not subpoenaing/authenticating phone records to impeach Wells | Phone records would have disproved Wells’s claim of calls and undermined identification/credibility | Records were not proffered at motion hearing; lack of foundation at trial; no showing of expected testimony | No IAC; prejudice not shown because Curtis failed to proffer witness testimony or records |
| Trial counsel ineffective for not impeaching State witnesses with prior felony convictions or requesting charge on impeachment | Prior convictions would have reduced witnesses’ credibility and affected verdict | Impeachment is trial strategy; many witnesses’ testimony was cumulative or already showed bias/drug involvement; even if impeached remaining evidence sufficient | No IAC; failure to impeach or request charge not prejudicial |
| Sentencing: whether aggravated assault with intent to rob merges with armed robbery | Curtis: aggravated assault with intent to rob is a lesser-included (or included) offense and must merge into armed robbery | State: argued timing could make offenses separate if one completed before the other | Held: Affirmed that aggravated assault with intent to rob merges into armed robbery because both share intent-to-rob and assault-with-weapon elements; vacated that conviction and remanded for resentencing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong deficient performance and prejudice test for IAC)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence: view evidence in light most favorable to the verdict)
- Drinkard v. Walker, 281 Ga. 211 (2006) (required-evidence test for merger of offenses)
- Lucky v. State, 286 Ga. 478 (2009) (merger analysis where assault element is subsumed by armed-robbery elements)
- Chance v. State, 291 Ga. 241 (2012) (decision to impeach with certified prior convictions is trial strategy)