Case Information
*1 WHOLE COURT
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March 8, 2017 In the Court of Appeals of Georgia
A14A1848. ASHLEY v. THE STATE.
M C F ADDEN , Presiding Judge.
Thad Lee Ashley was convicted of kidnapping, criminal attempt to kidnap,
entering an automobile, and criminal trespass. In our opinion in
Ashley v. State
, 331
Ga. App. 794 (
The Supreme Court of Georgia granted certiorari to review Division 2 of our opinion, and in State v. Ashley , 299 Ga. 450 (788 SE2d 796) (2016), the Court “reversе[d] [our] judgment as to Division 2 of the majority opinion[ ] and . . . remand[ed] the case for consideration of the other enumerations raised by Ashley.” Id. at 458 (3).
Because the Supreme Court neither addressed nor considered Division 1 of our
opinion in
Ashley v. State
, supra, 331 Ga. App. 794, and that Division is not
incоnsistent with the Supreme Court’s own opinion, Division 1 “become[s] binding
upon the return of the remittitur.”
Shadix v. Carroll County
,
As detailed below, none of Ashley’s other enumerations require reversal. The holding in Division 1 of our earlier opinion that the evidence was sufficient to support Ashley’s convictions disposes of Ashley’s clаims that the trial court erred in failing to grant his directed verdict and that the verdict is contrary to the evidence. Ashley argues that the trial court made an improper comment on the evidence, but the trial *3 court did not express or intimate an opinion on whether any faсt had been proved. Ashley argues that the trial court improperly charged the jury on kidnapping, but he did not object to the charge at trial and has not shown plain error. Ashley argues that the trial court erred by not granting a mistrial following the admission of recordings of Ashley’s custodial statements or ordering those statements redacted, but he affirmatively stated at trial that he had no objection to the admission of this evidence. Ashley challenges the constitutionality of his sentence, but he did not raise this challenge at the first available opportunity. Finally, Ashley argues that he received ineffective assistance of counsel, but he has not shown that his trial counsel performed deficiently. For these reasons, we affirm his convictions. Facts.
The earlier appellate decisions set forth in detail the evidence in and procedural
posture of this case. See
State v. Ashley
, supra,
Ashley argues that the trial court erred in fаiling to grant his motion for directed verdict. He also argues that the verdict was contrary to the evidence, an argument he raised in his motion for new trial, which the trial court denied.
[W]hether an appellant is asking [an appellate] court to review a trial court’s refusаl to grant a new trial on the general grounds or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia , [443 U. S. 307 , 319 (99 SCt 2781 , 61 LE2d 560) (1979)], to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the vеrdict.
*5
Lewis v. State
, 296 Ga. 259, 261-262 (3) (765 SE2d 911) (2014) (citation and
punctuation omitted). Consequently, our analysis of the sufficiency of the evidence
in Division 1 of our earlier decision in
Ashley v. State
, supra,
Ashley argues that the trial court made an improper comment on the еvidence in violation of OCGA § 17-8-57 while instructing the jury on similar transaction evidence. The version of that statute in effect at the time of Ashley’s 2012 trial provided:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has оr has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or the Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court bеlow with such directions as the Supreme Court or the Court of Appeals may lawfully give.
Former OCGA § 17-8-57. (The current version of OCGA § 17-8-57 also prohibits the court from expressing or intimating an opinion on whether a fact has been proved but *6 precludes appellate review of that error, beyond plain error review, if there is no timely objection to the error.)
Ashley argues that the following statement by the trial court violated OCGA § 17-8-57:
And my expectation is that, if you’ll recall, [the prosecutor] made an opening statement about things going on in the swimming pool, and Mr. Ashley allegedly staring at little girls in the pool, and that sort of thing; and I’m assuming that this evidence relates to what [the prosecutor] described in his opening statement that he would prove. And so the law requires me to tell you that you have to limit your consideration of that solely to the issue of, what was Mr. Ashley’s intent at the time the alleged incident at the van occurred. Is everyone clear on that?
This statement notified the jury that the prosecutor was about to present certain
evidence mentioned in his opening statement; it did not express or intimate the trial
court’s opinion as to whether any fact had been or had not been proved. “There is a
wide difference between saying that a particular thing has been proved and saying
that there has [or will be] testimony on that thing.”
Slaton v. State
,
Ashley argues that the trial court improperly charged the jury on the offense of
kidnapping because the trial court did not instruct the jury on the principle, stated in
OCGA § 16-5-40 (b) (1), that “slight movement of another person which occurs while
in the commission of any other offense shall not constitute the offense of kidnapping
if such movement is merely incidental to such other offense.” Although Ashley raised
the issue in his motion for new trial, he did not object to the charge at trial.
Consequently, under OCGA § 17-8-58 (b) we apply plain error review to this claim.
State v. Kelly
,
Ashley cannot meet the first requirement for plain error, that there be “an error
or defect . . . that has not been intentionally relinquished or abandoned, i. e.,
affirmatively waived, by the appellant.”
Kelly
, supra,
Ashley argues that recordings of two of his custodial statements contained
comments by the interrogating law enforcement officer that were improper statements
of that officer’s opinion that invaded the province of the jury. See generally
Axelburg
v. State
, 294 Ga. App. 612, 616-617 (2) (669 SE2d 439) (2008) (discussing
circumstances under which comments of interrogating officer during custodial
interview are improper and require redaction). He argues that the trial court should
*9
have, sua sponte, either required redaction of the recordings or granted a mistrial after
the unredacted recordings were played to the jury. But when the state tendered the
unredacted recordings for admission, Ashley’s trial counsel affirmatively stated that
he had no objection. In so doing, trial counsel waived any objection to the evidence.
See
Monroe v. State
,
Ashley challenges the constitutionality of his life sentence for kidnapping the
seven-year-old girl and his thirty-year sentence for criminal attempt to kidnap the
two-year-old girl, arguing that the sentences are cruel and unusual punishment
forbidden by the Eighth Amendment. Both sentences presumptively comply with the
Eighth Amendment because they fall within the statutory limits set by the legislature
for these offenses. See OCGA §§ 16-4-6 (a) (permitting 30-year sentence for person
convicted of criminal attempt to commit crime punishable by life imprisonment), 16-
5-40 (d) (2) (permitting life sentence for person convicted of kidnapping victim less
than 14 years of age);
Grier v. State
, __ Ga. App. __, __ (6) (
And Ashley’s challenge to the constitutionality of his sentence was untimely
because he did not make the challenge at the first available opportunity — in the
sentencing hearing — but instead waited until his motion for new trial to object.
“[E]ven constitutional challenges to sentencing statutes, including those challenges
based on the Eighth Amendment, are untimely if they are presented for the first time
in a motion for new trial.”
Jones v. State
,
Ashley argues that his trial counsel gave ineffective assistance in connection with the admission of recordings of Ashley’s custodial statements. To prevail on this claim, Ashley
must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonablе standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance. If [Ashley] fails to [prove] either рrong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.
Scott v. State
,
When Ashley’s trial counsel was asked, at the hearing on Ashley’s motion for
new trial, about the decisions he made relating to the recordings of Ashley’s custodial
statements, trial counsel testified that he had seen no issue with the voluntariness of
the statements, that in all of the statements Ashley had denied committing a сrime,
that the statements were consistent with the testimony he expected Ashley to give at
trial in his own defense, and that he believed the statements supported Ashley’s
defense that, while intoxicated, he mistook the minivan for his father’s vehicle. As
such, he articulated a reasоnable strategy for not seeking to exclude the statements.
See
Byrd v. State
,
Trial counsel gave no testimony at the hearing on the motion for new trial
about why he did not seek redaction of the interrogating officer’s comments that
Ashley contends were improper statements of opinion (see Division 5, supra). And
*12
Ashley has not shown that those comments would have required redaction. As our
Supreme Court has explained, “[l]aw enforcement interrogations are, by their very
nature, attempts to determine the ultimate issue and credibility of witnesses.
Comments made in such an interview and designed to elicit a response from a suspect
do not amount to opinion testimony, even when testimony reflecting the comments
is admitted at trial.”
Butler v. State
,
Judgment affirmed. Doyle, C. J., Barnes, P. J., Andrews, Ray, Branch, and Self, JJ., concur .
Notes
[1] We use the term “similar transaction” evidence in this opinion because this
case was tried under Georgia’s former Evidence Code. Our Supreme Court has
adopted the term “other acts” evidence for cases decided under the new Evidence
Code. See
State v. Jones
,