Smarr v. State
317 Ga. App. 584
Ga. Ct. App.2012Background
- Smarr convicted by jury of burglary and attempted burglary; court denied motion for new trial.
- Evidence at trial showed Anneewakee Road burglary by Smarr, Freeman, Davis, and Mayes; Freeman identified Smarr as participant.
- Shell station attempted burglary (Post Road) occurred, with surveillance-destruction and entry by Smarr and Mayes; alarm interrupted and group fled.
- Freeman’s and Mayes’ trial testimony largely corroborated each other and the larger pattern of similar offenses.
- Similar-transaction evidence also showed two other burglaries (Clayton County and Haralson County) in which Smarr participated; he confessed to the Haralson County crime.
- Trial court later increased Smarr’s sentence after Smarr began serving incarceration; this Court vacates the increase and remands for resentencing, while affirming the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of similar-transaction evidence | State insists evidence is highly similar and admissible for identity/plan. | Smarr contends the prior crimes were not sufficiently similar. | Admissible; similarities suffice for plan/identity under discretion. |
| Fatal variance/ownership in Shell burglary | Indictment ownership alleged; evidence shows Shell owner; variance not fatal. | Ownership failure renders variance fatal; lack of authority shown. | Variance not fatal; evidence supports lack of authority to enter. |
| Ineffective assistance—counsel’s impeaching strategy | Counsel should have impeached Freeman/Mayes more aggressively. | Trial strategy decisions are reasonable; no deficient performance. | No prejudice; strategy reasonable given strong guilt evidence. |
| Suppression of CSLI data | Counsel should have moved to suppress CSLI as Fourth Amendment issue. | Earlier law supported admission; evolving standard still unfavorable to suppression. | Not deficient performance; evidence would likely be admissible under law then. |
| Sentence enhancement after serving; resentencing authority | State seeks to modify only to remove OCGA 17-10-7(c) reference, not to modify overall sentence. | Enhancement violated double jeopardy; final sentence expectation. | Vacate enhanced sentence and remand for proper resentencing. |
Key Cases Cited
- Henderson v. State, 300 Ga. App. 478 (Ga. Ct. App. 2009) (failure to pursue futile objection does not amount to ineffective assistance)
- Ward v. State, 304 Ga. App. 517 (Ga. Ct. App. 2010) (affirming burglary conviction despite lack of ownership proof)
- Edward v. State, 261 Ga. App. 57 (Ga. Ct. App. 2003) (circumstantial evidence can prove lack of authority for burglary)
- Weeks v. State, 274 Ga. App. 122 (Ga. Ct. App. 2005) (burglary proof identity/ownership not essential to conviction)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance standard requires deficient performance and prejudice)
- Jackson v. Denno, 378 U.S. 368 (U.S. 1964) (procedural validity of confession/plea hearing)