334 Ga. App. 299
Ga. Ct. App.2015Background
- Phillip M. Harris was convicted by a jury of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.
- Victim encountered Harris earlier in an apartment complex after an exchange with Harris’s cousin and another woman; later Harris confronted the victim, pulled a gun, struck him in the head/face, and shot him in the arm.
- Harris removed the victim’s necklace during the confrontation; the necklace was later recovered about 30 yards from the scene in a grassy area.
- At trial Harris testified he briefly visited his girlfriend’s house around 8 p.m. then went to the complex; his girlfriend had given a sworn statement claiming he stayed with her from 8 p.m. until the next morning but did not testify at trial.
- Harris appealed, arguing (1) insufficient evidence for armed robbery because no asportation or transfer of dominion occurred, (2) the armed robbery and aggravated assault convictions should merge for sentencing, and (3) ineffective assistance of counsel for failure to subpoena the alibi witness and for inadequate investigation.
Issues
| Issue | Plaintiff's Argument (Harris) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency of evidence for armed robbery (asportation/dominion) | Necklace merely broke/fell; no change of location or transfer of dominion | Jury could infer Harris ripped necklace off and carried it ~30 yards before dropping it, satisfying asportation and dominion | Evidence sufficient; armed robbery conviction affirmed |
| Merger of armed robbery and aggravated assault for sentencing | Aggravated assault arose from same act/transaction as armed robbery and should merge | Assault occurred after robbery was complete (shooting followed taking necklace); separate acts | No merger; convictions based on distinct acts |
| Ineffective assistance — failure to subpoena alibi witness | Counsel should have subpoenaed girlfriend; her testimony would provide alibi or could be used from prior revocation hearing | Counsel had the girlfriend’s sworn statement and reasonably expected her to attend; her testimony would have contradicted Harris’s own trial testimony | No prejudice shown; counsel not ineffective on this ground |
| Ineffective assistance — failure to investigate | Counsel failed proper investigation which might have uncovered exculpatory facts | Appellant made no proffer what further investigation would have shown | Claim fails for lack of proffer; no ineffective assistance shown |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence: whether any rational trier of fact could find guilt beyond a reasonable doubt)
- Miller v. State, 223 Ga. App. 453 (1996) (slight asportation that transfers complete dominion suffices for robbery)
- Gutierrez v. State, 290 Ga. 643 (2012) (removal and relocation of property into defendant’s control supports dominion finding)
- Brown v. State, 314 Ga. App. 198 (2012) (criminal acts complete at different times do not merge)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)