Bogan v. StateBogan v. State
- Reporters:
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- Before:
- Eldridge
A Houston County jury convicted Lewis Bogan of theft by receiving stolen property, aggravated assault, and robbery by sudden snatching in violation of
1. By his brief on appeal, defendant has neither argued nor provided citations of authority for the proposition that the jury verdicts against him for receiving stolen property and robbery by sudden snatching were not supported by sufficient evidence. Inasmuch
Viewed in the light most favorable to the verdict, the evidence shows that during the early morning hours of December 27,1997, the defendant snatched a woman’s purse in the parking lot of a Cracker Barrel restaurant located in Perry as she and her husband walked to the restaurant. The defendant ran. The husband pursued the defendant and managed to attach himself to the driver’s side of the pickup in which defendant sped away. In an unprompted confession to his cellmate admitted at trial, the defendant stated that he nonetheless drove off, “dragging” the husband with him, managing to shake him from the vehicle, leaving him injured on the ground. Defendant was arrested in the afternoon of January 2, 1998, after he was found hiding in the darkened men’s room of Hughes Auto Care in Perry — this upon a 911 call to the Perry Police Department from a Hughes Auto Care employee. The employee reported a suspected stolen vehicle in that he had overheard a conversation between a man who had driven a black, like-new, 1997 Toyota Tacoma to the shop and his employer in which the driver offered to sell the vehicle for only $1,500, although the vehicle appeared to be worth nearly ten times as much. Other evidence showed that the police confirmed the vehicle’s status as stolen and found its ignition key in the restroom in which the defendant hid.
The offense of aggravated assault is committed when a person assaults another “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”
That the defendant dragged the victim husband alongside his vehicle as he made his getaway from the scene of the Cracker Barrel purse snatching, ultimately doing his victim substantial injury by shaking him free of the car, is undisputed. On appeal, we neither weigh the evidence nor determine witness credibility. Rather, our duty is to determine the sufficiency of the evidence. Elrod v. State, 238 Ga. App. 80, 81 (1) (517 SE2d 805) (1999); Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997). The evidence here was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Spaulding v. State, supra at 812-813 (1).
2. Defendant contends his trial counsel was ineffective for failing to interview witnesses in preparation for trial; for failing to file a motion to sever Count 1 of the indictment, receiving stolen property, from Counts 2 and 3 thereof, aggravated assault and robbery by sudden snatching, respectively; for failing to request jury charges as to reckless conduct and theft by taking as lesser included offenses of aggravated assault and robbery by sudden snatching, respectively; for failing to reserve defendant’s right to object to the superior court’s charge; and for failing to object to defendant’s in-court identification in the absence of a ruling on his motion to suppress the pretrial photographic lineup shown to the husband and wife victims.
(a) Defendant’s trial counsel was not deficient for failure to interview witnesses in preparation for trial. By trial counsel’s answers to defendant’s first interrogatories, substituted by consent of the parties for a hearing on defendant’s motion for new trial (“trial counsel’s answers”), trial counsel admitted that he had not interviewed the State’s witnesses. However, he otherwise attested that he was adequately prepared for trial after preparing for a month and that he was not unfamiliar with the testimony of the State’s witnesses, having two times “read the [S]tate’s file containing their information, statements.” This does not establish deficient performance as counsel for inadequate trial preparation. Cochran v. State, 262 Ga. 106, 107-108 (2) (414 SE2d 211) (1992).
Trial counsel also attested he had not subpoenaed defendant’s witnesses “Robby Hughes and Deputy Ford,” because the husband and wife victims were unable to identify the perpetrator. While trial counsel conceded that during trial he felt the need for additional time to interview them, defendant does not support this aspect of his ineffectiveness claim by evidence showing that trial counsel’s decision not to seek a continuance was deficient as not legitimately a sound trial strategy. “The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered [a] sound trial strategy.” (Citations and punctuation omitted.) Cochran v. State, supra at 107 (2).
(b) Defendant challenges as ineffective assistance of counsel the fact that his trial counsel failed to file a motion to sever the theft by receiving stolen property count from those charging him with aggravated assault and robbery by sudden snatching. However, “[t]he decision [not] to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective.” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). A defendant must do more than raise the possibility that separate trials upon the charges against him would have provided him a better chance of acquittal. Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996). Such a defendant must make a clear showing of prejudice proximately causing a denial of due process. Id. In his answers, trial counsel speculates that defendant might have been acquitted of the offenses of aggravated assault and robbery by sudden snatching had the superior court granted a motion to sever in this case. However, such speculation raises no more than a mere possibility, a showing which is insufficient in these circumstances. Id.; Cochran v. State, supra at 107.
(c) Trial counsel’s failure to request charges on the offenses of theft by taking and reckless conduct as lesser included offenses of robbery by sudden snatching and aggravated assault did not constitute deficient performance as counsel. “[T]o pursue an all-or-nothing defense [is] a matter of trial strategy. [Cits.]” Turner v. State, supra at 645.
(d) Defendant also contends that his trial counsel was ineffective for failing to reserve objections to the jury charge. “Failure to object to a court’s charge, however, is not ineffective assistance where the appellant does not show how this prejudiced his case. [Cit.]” (Punctuation omitted.) Gomillion v. State, 236 Ga. App. 14, 18 (3) (c) (512 SE2d 640) (1999). Defendant makes no such showing on appeal.
3. The superior court’s grant of the State’s motion in limine did not deny the defendant his right to impeach the State’s witnesses by a thorough and sifting cross-examination as to their prior arrests, offenses of which they had been suspected or accused, and other evidence of bad character. By its terms, the State’s motion did not seek the suppression of such evidence in an absolute sense, as defendant argues by brief on appeal. Rather, by its terms, the motion sought to foreclose only such impeachment as defendant could not show to be admissible in an out-of-court hearing. 2 Moreover the record reflects that the superior court and the parties were mindful of the right of a criminal defendant to cross-examine concerning “pending criminal charges against the witness in order to expose the witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and the witness. Davis v. Alaska, [supra at 316-317]; Hines v. State, [supra at 259-260].” Johnson v. State, 244 Ga. App. 128, 131 (1) (534 SE2d 480) (2000). In this regard, defendant, following extensive testimony on direct to the same effect, was permitted an unimpeded cross-examination of the cellmate through whom his jailhouse confession was admitted. There is no indication in the record that defendant could not have further exercised his right of cross-examination for the purpose of demonstrating in a like manner the partiality of any of the State’s witnesses. Accordingly, the superior court did not err in granting the motion in limine. Even were this not the case, any error would be harmless for want of prejudice inuring to the detriment of the defendant. Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]”).
Judgment affirmed.
Andrews, P. J, and Miller, J., concur.
Notes
Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Jackson v. State, 243 Ga. App. 289, 293 (3) (h) (531 SE2d 747) (2000).
Pertinently, the State’s motion in limine
request[ed] that defendant be prohibited from discussing any of the State’s witnesses’ prior arrests, having been suspected or accused of committing any crimes, or any other basis of “bad character,” absent a showing, outside the presence of the jury, that such areas are legitimate areas that can be explored by [defendant.