Wallace v. the State
341 Ga. App. 576
| Ga. Ct. App. | 2017Background
- Wallace drove co-defendant Grady to multiple stores in Whitfield County where Grady shoplifted items to repay a debt; surveillance and witness evidence placed Wallace at stores and items were found in his truck.
- Police stopped Wallace shortly after a liquor-store theft; Wallace consented to a search of his truck and person; stolen items and a lip-gloss product from Walmart were recovered.
- Wallace and Grady were indicted on three counts of felony theft by shoplifting; Wallace was convicted by a jury and sentenced as a recidivist to ten years.
- Wallace moved for a new trial alleging general grounds and ineffective assistance of counsel; the trial court denied the motion.
- On appeal Wallace challenged (1) the sufficiency/form of Count 3 (aggregate-theft felony) for failing to specify the seven-day aggregation period and (2) trial counsel’s effectiveness for various strategic omissions.
- The Court of Appeals affirmed, finding the indictment allegations and proof adequate and that counsel’s strategic choices were within professional norms and non-prejudicial.
Issues
| Issue | Wallace's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency/form of Count 3 (aggregation) | Count 3 was void because it didn’t allege the statutory seven-day aggregation period required to elevate multiple misdemeanor shopliftings to a felony | “On or about” date allegation plus trial evidence showing thefts occurred the same day satisfied any temporal averment; no fatal variance | Affirmed — indictment and proof adequately alleged/established the aggregation within seven days |
| Apprendi challenge to aggregation | Aggregation fact (seven-day period) increased offense/penalty and thus was a fact that must be proven to the jury beyond a reasonable doubt under Apprendi | Sentence fell within statutory maximums; Apprendi not implicated here | Affirmed — Apprendi inapplicable because sentencing stayed within statutory range |
| Failure to call jailhouse witnesses | Trial counsel was ineffective for not calling witnesses who would testify Grady told Wallace he told his attorney Wallace was uninvolved | Counsel reasonably rejected jailhouse-hearsay testimony as potentially harmful and inconsistent with trial strategy to discredit Grady | Affirmed — counsel’s choice was strategic and non-prejudicial |
| Failure to impeach/argue evidentiary discrepancies | Counsel failed to impeach witnesses about whether all Walmart items were returned and failed to highlight lip-gloss vs. lip-lacquer discrepancy in closing | Counsel’s omissions were strategic choices focused on a ‘‘mere presence’’ defense; Wallace failed to show reasonable probability of different outcome | Affirmed — no deficient performance or prejudice under Strickland |
Key Cases Cited
- Marriott v. State, 320 Ga. App. 58 (construing evidence in light most favorable to the verdict on appeal)
- Ray v. State, 338 Ga. App. 822 (Apprendi inapplicable where sentence is within statutory maximum)
- Scott v. State, 290 Ga. 883 (setting out ineffective-assistance two-prong test)
- Muller v. State, 284 Ga. 70 (wide deference to counsel’s strategic witness decisions)
- Perdue v. State, 298 Ga. 841 (decision to call witnesses is trial strategy)
- Davenport v. State, 308 Ga. App. 140 (no ineffectiveness when counsel omits witnesses deemed unfavorable)
- Brown v. State, 288 Ga. 907 (deferential Strickland review; post-trial second-guessing disfavored)
- Strickland v. Washington, 466 U.S. 668 (two-prong standard for ineffective assistance)
- Apprendi v. New Jersey, 530 U.S. 466 (facts increasing penalty beyond statutory maximum must be submitted to jury)