Tran v. the State
340 Ga. App. 546
| Ga. Ct. App. | 2017Background
- Around 1:00 a.m. on Feb. 6, 2013, two masked men with guns robbed a karaoke club; a female manager testified one suspect digitally penetrated her. A silver Acura with tinted windows was seen leaving the scene; the plate was obscured.
- Tran (Vietnamese, 5'5") was driving a silver Acura stopped by police minutes later; the passenger fled and was not found. Tran was arrested; officers found liquor and clothing in the car and Tran admitted a gun in the vehicle.
- Tran’s trial theory was that he was a coerced, frightened driver (a victim), who did not know or participate in the crimes. He testified he was forced at gunpoint to drive and later feared for his safety and family.
- At trial the jury asked whether a defendant who was one of the robbers but not shown to have committed or known about the sexual battery could still be party to that crime; the judge answered, "That’s for you to decide." Defense counsel objected to nothing further.
- Multiple contested evidentiary moments: prosecutor’s cross about Tran’s post-arrest silence/right to counsel; testimony by a Clayton County officer that no victim record existed; impeachment questions about Tran’s claimed prior robbery report; and a detective’s testimony (on re-direct) that Tran initially said he would identify the other occupant but then retracted.
- Tran was convicted of two counts of armed robbery, one count of aggravated sexual battery, and one count of possession of a firearm during commission of a felony; he moved for new trial and raised jury-charge error and multiple ineffective-assistance claims. The Court of Appeals reversed for ineffective assistance prejudice but allowed retrial.
Issues
| Issue | Plaintiff's Argument (Tran) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Trial judge’s reply to jury question about party liability for sexual battery | Court should have told jury "no" — law requires separate proof of sexual battery knowledge/participation | Court properly exercised discretion; jurors were already charged on parties, burden, intent, elements and told to follow the law | No plain error; court’s brief reply not clearly erroneous when read with whole charge |
| Failure to request coercion jury instruction | Counsel ineffective for not requesting coercion (Tran claimed coercion/victim) | Tran denied participation/knowledge; he did not admit elements required to assert statutory coercion defense | Not entitled to coercion charge because Tran did not admit the crime’s elements; no ineffective assistance on this ground |
| Failure to object to prosecutor’s questions about post-arrest silence and right to counsel | Counsel ineffective for not objecting; questions impermissibly used silence to impeach | Defense opened the door by eliciting on direct that prior fear/encounters affected his silence; some questioning impeachable and objections would have been meritless | Where defense opened the door, prosecution’s follow-up was permissible; counsel’s failure to object to those particular questions was not ineffective as objection would have been futile; but some comments were nonetheless damaging overall |
| Failure to object to hearsay and improper impeachment (Clayton/Riverdale records) | Counsel ineffective for not objecting to officer testifying about searches/no records and to impeachment by investigator search | Officer’s Clayton-county testimony admissible under OCGA §24-8-803(10); Riverdale testimony lacked foundation so objection would have been proper | Counsel was not ineffective regarding Clayton search (admissible); but deficient for failing to object to Riverdale testimony and for failing to object to improper impeachment about a Clayton investigator search Tran did not know about |
| Opening the door to damaging detective testimony identifying Tran’s willingness to name others | Counsel’s cross elicited that Tran later told investigators he might identify the other occupant but then retracted; this contradicted Tran’s trial testimony and undermined defense | State had the right to pursue impeachment after defense elicited subject on cross | Trial counsel’s questioning was unreasonable strategy given Tran’s victim/unknown-driver defense; combined errors prejudiced the defense and warranted reversal (retrial allowed) |
Key Cases Cited
- Glover v. State, 285 Ga. 461 (court discusses waiver of objection to jury charge) (Ga. 2009)
- Leeks v. State, 296 Ga. 515 (discretion over additional jury instructions) (Ga. 2015)
- Redding v. State, 296 Ga. 471 (trial court may decline direct answer to jury question) (Ga. 2015)
- Kimmel v. State, 261 Ga. 332 (no obligation to engage in Q&A with jurors) (Ga. 1991)
- Aikens v. State, 297 Ga. 229 (jury charge reviewed as whole) (Ga. 2015)
- Jackson v. Virginia, 443 U.S. 307 (standard for viewing evidence in light most favorable to verdict) (U.S. 1979)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel) (U.S. 1984)
- Doyle v. Ohio, 426 U.S. 610 (prosecution may not use post-Miranda silence for impeachment) (U.S. 1976)
- Kennebrew v. State, 299 Ga. 864 (prejudice analysis for ineffective assistance) (Ga. 2016)