345 Ga. App. 80
Ga. Ct. App.2018Background
- In the early morning of June 13, 2014, three men in a park were robbed at gunpoint by two masked assailants who ordered them to remove clothing, struck one victim, took possessions, and fled; money was also taken from the victims’ parked car.
- A separate convenience-store robbery days later involved two masked gunmen who hit the manager, forced him to remove clothing, and stole about $2,500; an alarm scared them off.
- Police later searched Robert Harris’s residence and found a gun and shoes linked to the incidents; Harris admitted participation in both robberies to police.
- A jury convicted Harris of criminal attempt to commit armed robbery, entering an auto with intent to commit theft, and three counts of armed robbery; the trial court denied his motion for new trial.
- On appeal Harris raised ineffective-assistance-of-counsel claims (limited opening and closing, no cross-examination of victims, no mitigation at sentencing), challenged the trial court’s failure to inquire about a defendant’s waiver of jury polling, and challenged striking a prospective juror for cause.
Issues
| Issue | Harris’s Argument | State’s Argument | Held |
|---|---|---|---|
| Ineffective assistance — opening & closing | Counsel failed to present a defense theory or explain legal standards; arguments were inadequate | Counsel did present identity and false-confession theories in opening and reiterated them in closing; jury charge covered legal standards | No ineffective assistance; performance within reasonable strategic bounds |
| Ineffective assistance — cross-examination of robbery victims | Counsel should have cross-examined victims to exploit inconsistencies and weaken ID/evidence | Counsel strategically avoided cross to prevent further testimony and because victims did not identify Harris on direct | No ineffective assistance; tactical decision was reasonable and no showing of likely different outcome |
| Ineffective assistance — sentencing mitigation | Counsel failed to offer mitigation evidence at sentencing | Harris offered no proffer or evidence of mitigation that counsel could have presented | No prejudice shown; claim fails without proffer of mitigating evidence |
| Jury polling & waiver | Trial court should have confirmed Harris personally and knowingly waived jury poll when defense counsel declined it | No authority requires the court to question defendant when counsel waives poll; right may be waived; record shows no nonunanimity | No error; waiver by counsel valid and no record suggesting nonunanimous verdict |
| Striking prospective juror for cause | Trial court erred by excusing Juror 13 | Juror expressed bias against law enforcement and doubt about being fair; court has discretion to assess impartiality | No abuse of discretion; striking for cause proper given juror’s stated bias |
Key Cases Cited
- Edwards v. State, 299 Ga. 20 (addressing review of counsel performance and strategic decisions)
- Bazin v. State, 299 Ga. App. 875 (ineffective-assistance prejudice standard)
- Jones v. State, 296 Ga. 561 (presumption of reasonable counsel performance)
- Romer v. State, 293 Ga. 339 (tactical decisions will not support IAC unless patently unreasonable)
- Christian v. State, 297 Ga. App. 596 (prejudice requirement for failure to cross-examine)
- Davis v. State, 286 Ga. 74 (need to proffer mitigation to show prejudice at sentencing)
- Cammer v. Walker, 290 Ga. 251 (plea-advice context cited by Harris by analogy)
- Ellison v. State, 296 Ga. App. 752 (rejection of IAC claims based on failure to poll jury)
- Laing v. State, 304 Ga. App. 15 (right to poll derived from common law and may be waived)
- Hamm v. State, 294 Ga. 791 (overruling on other grounds noted)
- Malerba v. State, 172 Ga. App. 457 (no record indication of nonunanimous verdict defeats poll-based claim)
- DeVaughn v. State, 296 Ga. 475 (trial court discretion to strike juror for cause)
- Scales v. State, 310 Ga. App. 48 (juror bias against police supports strike for cause)