ANDERSON v. THE STATE
A16A1242
Court of Appeals of Georgia
JULY 6, 2016
337 Ga. App. 739 | 788 SE2d 831
BARNES, Presiding Judge.
Denise D. Fachini, District Attorney, Christian L. Brown, Assistant District Attorney, for appellee.
BARNES,
A Cobb County jury found Charles Anderson guilty of armed robbery, and the trial court sentenced him as a recidivist to life imprisonment without parole. Anderson filed a motion for new trial, as amended, which the trial court denied. On appeal, Anderson contends that the trial court erred in allowing the State to introduce evidence of his recorded telephone conversations made from jail and in sentencing him as a recidivist. Anderson further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.
“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Anderson‘s stepfather, Willie Plummer, lived in an apartment located on Six Flags Drive in Cobb County. Plummer lived with his wife and his grandson, Dashon Hicks.
On Sunday morning, October 28, 2012, Anderson went to Plummer‘s apartment and asked Plummer if he could borrow his car. Plummer agreed, and Anderson left in the borrowed car with his nephew, Hicks, after asking Hicks to ride to work with him.
Instead of driving to work, however, Anderson drove with Hicks to Fayetteville, where they picked up another relative, Shantel
Once Washington parked the car, Eason and Anderson got out and went toward the Waffle House. Eason donned a ski mask, and Anderson zipped up his hoodie over his face except for the eyes. Both men wore dark clothing.
According to witnesses inside the Waffle House, two men dressed in black with their faces covered entered the restaurant around noon when it was crowded with customers. One of the men stood guard at the front entrance while the second man approached the cash register with a handgun, demanding money. The second man then jumped over the counter and grabbed the cash from the register while pointing a gun at a waitress. The witnesses’ descriptions of the two men indicated that Eason was the man who stood guard at the door while Anderson brandished the handgun and grabbed the cash from the register.
Eason and Anderson ran from the Waffle House back to the car where Washington and Hicks were waiting. Washington drove the group away from the scene. However, as they drove away, the group realized that a person in a van was following them and was recording the car‘s tag number. Anderson told the others that he would call Plummer and tell him that his car had been stolen.
Washington drove to Anderson‘s apartment, and Anderson called Plummer and told him that someone had stolen his car when it was parked outside a store. Anderson encouraged Plummer to call the police and report the theft of the car, but Plummer told Anderson that he should make the call. Anderson made several more phone calls to Plummer in an unsuccessful attempt to have him call the police and report the car stolen. Anderson also moved Plummer‘s car a block away from his apartment and left it there.
Concerned about his car, Plummer went to Anderson‘s apartment to find out what had happened. When Plummer arrived at the apartment and asked about his car, Anderson told him it was parked around the corner. Plummer went to his car and found it undamaged with the keys still in the ignition. Because Anderson claimed the car had been stolen, Plummer called 911 at that point, and an Atlanta police officer arrived, looked over the car, and released the car back to Plummer. Plummer and Hicks then drove the car back to Plummer‘s apartment complex on Six Flags Drive.
In the meantime, the police had identified Plummer as the owner of the car involved in the Waffle House robbery based on the license tag number that had been provided by the driver of the van who had followed the car after the robbery. The police arrived at Plummer‘s apartment complex around the same time that Plummer and Hicks returned there with the car. The police stopped the car and detained Plummer and Hicks.
Plummer and Hicks agreed to be interviewed at the police station. Plummer told a detective about what had transpired with respect to his car and was released after his interview. Hicks initially denied any knowledge of the robbery and told a detective that Plummer‘s car had been stolen. Hicks later told the detective about the robbery and identified Anderson as one of the participants.
After speaking with Hicks, the detective obtained an arrest warrant for Anderson for armed robbery, and the police arrested him early the next morning. Anderson, Washington, and Eason were jointly indicted for armed robbery. Hicks was not charged with any offenses.
At Anderson‘s trial,1 Plummer and Hicks testified to events as summarized above. Hicks also testified that he had not known
Several eyewitnesses to the robbery also testified, as did the lead detective assigned to the robbery investigation. Additionally, over defense objection, the State introduced into evidence and played for the jury recorded telephone calls that Anderson made to Hicks from jail. During the recorded calls, Anderson questioned Hicks about what he had told the police and admonished Hicks for revealing Anderson‘s participation in the robbery.
After the State rested, Anderson elected not to testify. He did not call any defense witnesses.
Upon hearing all the evidence, the jury found Anderson guilty of armed robbery. Following the guilty verdict, the State introduced certified copies of Anderson‘s three prior convictions, one of which was a nolo contendere plea to armed robbery in Michigan. Based on the three certified prior felony convictions, the trial court sentenced Anderson as a recidivist under
Anderson filed a motion for new trial. Anderson was appointed new counsel who filed an amended motion, alleging that Anderson‘s recorded jail telephone conversations with Hicks had been improperly admitted at trial, that his recidivist sentence was improper, and that his trial counsel had rendered ineffective assistance. Following a hearing at which Anderson‘s trial counsel testified, the trial court denied Anderson‘s amended motion for new trial. This appeal followed.
1. Anderson contends that the trial court erred by allowing the State to introduce the two recorded telephone calls that he made to Hicks from jail. According to Anderson, the recorded calls were inadmissible because they showed his bad character in that he used “street language and foul language” in the calls, and because the probative value of the calls was substantially outweighed by the danger of unfair prejudice. We disagree.
“It is well established that evidence that is relevant to an issue in the case is not rendered inadmissible simply because it incidentally puts the defendant‘s character at issue.” Jones v. State, 283 Ga. App. 812, 813 (1) (642 SE2d 887) (2007). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
We discern no abuse of discretion by the trial court in admitting the recorded jail telephone calls. During the calls, Anderson quizzed Hicks about what he told the police about the robbery, and Anderson became upset when Hicks admitted that he had given the police Anderson‘s name. Anderson admonished Hicks for divulging his name to the police, reminding Hicks that he had told him not to bring up Anderson‘s name if questioned about the robbery. Anderson also asked Hicks if he told the police that Anderson had a gun. Additionally, Anderson told Hicks that the police would put “pressure”
Anderson‘s statements in the recorded telephone calls were relevant and admissible to show his consciousness of his own guilt for the armed robbery.3 See Bostic v. State, 294 Ga. 845, 848 (2) (757 SE2d 59) (2014) (“[A]ny statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.“) (citation and punctuation omitted).
Anderson‘s statements also were relevant and admissible to corroborate Hicks’ testimony that he did not participate in the robbery and that Anderson had told him not to give Anderson‘s name to the police. See United States v. Mena, 564 Fed. Appx. 995, 998 (II) (11th Cir. 2014) (evidence was relevant to corroborate testimony of witness whose credibility the defendant had attacked).4 “This is true even if [the statements] incidentally placed [Anderson‘s] character into evidence.” Bostic, 294 Ga. at 848 (2). See Lewis v. State, 293 Ga. 110, 114 (2) (a) (744 SE2d 21) (2013).
Moreover, Anderson has not demonstrated that the probative value of the recorded telephone calls was substantially outweighed by the danger of unfair prejudice under
2. Anderson next contends that the trial court erred in sentencing him as a recidivist under
The recidivist statute imposes maximum sentences for any person convicted of a felony who was previously convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony. See
OCGA § 17-10-7 (a) . In turn, if the person has three such prior felony convictions, upon a fourth felony conviction the person must serve the sentence without the possibility of parole. SeeOCGA § 17-10-7 (c) . The burden is on the [S]tate to produce competent evidence of a prior conviction for purposes of sentencing. The State bears the burden of showing that the foreign convictions were for conduct which would be considered felonious under the laws of this state. And failure to properly prove the prior convictions requires remand and resentencing.
(Citations, punctuation and emphasis omitted.) Davis v. State, 319 Ga. App. 501, 504 (2) (736 SE2d 160) (2012). See
On appeal, Anderson contends that the State failed to prove that his prior Michigan conviction would have constituted a felony in Georgia, given that he was under 17 years old and thus was a juvenile offender when the Michigan offense occurred.8 Consequently, Anderson maintains that his Michigan conviction could not be used by the trial court as a prior felony conviction for the purpose of sentencing him as a recidivist under
As an initial matter, we note that Anderson did not object to the admission of his Michigan conviction at the sentencing hearing. In any event, even if Anderson did not waive his objection to the Michigan conviction by failing to object in the trial court,10 the trial court committed no error in using the conviction as a predicate offense for recidivist punishment.
As a general rule, prior offenses committed in other states by a defendant when he was a juvenile cannot be used as predicate convictions for recidivist punishment because in Georgia, “[a] juvenile is not convicted of felonies, but adjudicated a delinquent, based on delinquent acts,” and “[t]he plain terms of [the recidivist statute] require that the defendant be convicted of prior crimes which if committed in this state would be felonies.” Miller v. State, 231 Ga. App. 869, 871 (2) (501 SE2d 42) (1998). However, if the defendant, despite his juvenile status, could have been convicted of a felony if the prior offense had been committed in Georgia, then the prior offense can be used as a predicate conviction for recidivist punishment under
When Anderson committed the Michigan armed robbery in August 1991, juvenile courts in Georgia had jurisdiction over juvenile matters involving children under 17 years old. See
Concurrent criminal jurisdiction. The [juvenile] court shall have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in a superior court and for which the child may be punished by loss of life or confinement for life in a penal institution.
(Emphasis in original.)
As previously noted, the Michigan charging document alleged that Anderson took a car from the presence of the victim by use of a handgun. These same allegations would have constituted the crime of armed robbery under Georgia law. See
For this reason, the State met its burden of proving that Anderson‘s Michigan conviction was for conduct that would have been considered a felony under Georgia law. The trial court therefore committed no error in using the Michigan conviction as a predicate offense for recidivist punishment under
3. Lastly, Anderson contends that his trial counsel rendered ineffective assistance in several respects. To establish a claim of ineffective assistance of counsel under the test established in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), Anderson
must show both that counsel‘s performance was deficient, and the deficient performance was prejudicial to his defense. Moreover, to establish deficient performance, [Anderson] must overcome the strong presumption that his counsel‘s conduct fell within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way, considering all circumstances and in the light of prevailing professional norms. Further, failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.
(Citations and punctuation omitted.) Brannon v. State, 298 Ga. 601, 611 (7) (783 SE2d 642) (2016). In addressing a claim of ineffective assistance on appeal, we review the trial court‘s legal conclusions de novo and its factual findings under the clearly erroneous standard. Ellison v. State, 296 Ga. App. 752, 755 (2) (675 SE2d 613) (2009).
(a) Anderson argues that his trial counsel was ineffective for failing to object to the trial court‘s use of his prior Michigan conviction as a predicate offense for recidivist punishment. But, as explained supra in Division 2, Anderson‘s Michigan conviction could be used for purposes of recidivist sentencing.
(b) Anderson also argues that his trial counsel was ineffective for failing to subpoena any eyewitnesses to the Waffle House robbery and have them testify as defense witnesses. However, at the hearing on Anderson‘s motion for new trial, his trial counsel testified that as part of his investigation, he had reviewed the witness statements taken by the police at the Waffle House and did not believe that any of the witnesses would testify favorably for the defense.
It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics, and that tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.
(Citations and punctuation omitted.) Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009). Based on trial counsel‘s testimony at the new trial hearing, Anderson has failed to show that his counsel‘s decision not to subpoena any eyewitnesses to testify for the defense at trial was so unreasonable that no competent attorney would have made the same decision. See id.
(c) Anderson contends that his trial counsel was ineffective for asking a question on cross-examination that elicited testimony from the lead detective that impermissibly bolstered Hicks’ credibility before the jury. He further contends that his trial counsel was ineffective for failing to object or move to strike the bolstering testimony once elicited from the detective.
During trial, Anderson‘s trial counsel asked the lead detective several questions on cross-examination aimed at undermining Hicks’ credibility before the jury. Among other things, trial counsel inquired about Hicks’ second interview with the detective in which Hicks for the first time admitted that Plummer‘s car had not been stolen and that Anderson was present at the robbery:
COUNSEL: [H]ow long did that second set of interviews [with Hicks] last?
DETECTIVE: Oh, less than an hour, most likely.
COUNSEL: During the course of that hour, did he tell you that he‘d do anything or say anything in order to stay out of prison?
DETECTIVE: I don‘t recall that, no.
COUNSEL: Okay.
DETECTIVE: I do recall him making statements that he didn‘t—did not want to go to jail, did not want to go to prison for something he didn‘t do.
(Emphasis supplied.)
Contrary to Anderson‘s argument, the detective‘s last answer did not amount to impermissible bolstering.
It is erroneous for a witness, even an expert, to bolster the credibility of another witness by expressing an opinion that the witness is telling the truth. What is forbidden is opinion testimony that directly addresses the credibility of the victim, i.e., “I believe the victim; I think the victim is telling the truth.”
(Citations and punctuation omitted.) Wright v. State, 327 Ga. App. 658, 661 (2) (a) (760 SE2d 661) (2014). In his last answer, however, the detective did not express an opinion that Hicks was telling the truth, and thus did not directly address Hicks’ credibility. Because the detective‘s testimony did not constitute impermissible bolstering, Anderson has failed to show that his trial counsel was deficient in his questioning of the detective or in his failure to object or move to strike the detective‘s testimony. See id. at 661-662 (2) (a).
Furthermore, trial counsel testified at the new trial hearing that he had not believed that any objection to the detective‘s response was necessary, given that counsel had already highlighted to the jury that Hicks had lied to the police. The scope of cross-examination and the decision whether to raise certain objections is a matter of trial tactics and strategy. See Brunson v. State, 322 Ga. App. 302, 303 (2) (744 SE2d 801) (2013); Martinez v. State, 303 Ga. App. 166, 174 (4) (b) (692 SE2d 766) (2010). Anderson has failed to show that his trial counsel‘s strategy on cross-examination of the detective was so
Judgment affirmed. Boggs and Rickman, JJ., concur.
DECIDED JULY 6, 2016.
Raina J. Nadler, for appellant.
D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.
BARNES
Presiding Judge