A jury convicted Kenneth Allen Boggs of robbery, and the trial court denied his amended motion for new trial. On appeal, Boggs contends that (1) there was insufficient
1. Following a criminal conviction, the defendant is no longer presumed innocent, and we construe the evidence in the light most favorable to the jury’s verdict.
Gordon v. State,
This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, we must uphold the jury’s verdict.
(Citations and punctuation omitted.)
Rankin v. State,
Viewed in this manner, the evidence showed that in the early morning hours of September 1, 2007, two officers with the Savannah-Chatham Metro Police Department were riding on patrol in downtown Savannah. They observed two young males running across the street away from a man in “a crumbled heap” on the sidewalk with his hands over his face. The man on the sidewalk had a deep laceration above his right eye and “his face was pretty much swollen.” The two males running away from the injured man were later identified as Rico Sanchez and Kenneth Boggs.
The officer driving the patrol car activated the blue lights and accelerated toward Sanchez and Boggs in an effort to overtake them. Both of them continued running and did not stop in response to the pursuing patrol car. The officers observed that Boggs was carrying a backpack as he ran. When the patrol car came up behind Sanchez and Boggs, the officers saw Boggs drop a backpack as he continued running. After maneuvering the patrol car in front of Sanchez and Boggs, the first officer turned the car at an angle to cut them off, and the second officer immediately exited the car and ordered them to stop. Boggs complied and was handcuffed. Sanchez, however, fled from the scene and avoided apprehension at that time.
The officers retrieved the backpack that Boggs had dropped. The backpack belonged to the injured man on the sidewalk. Boggs was transported to police headquarters, where he agreed to speak with a detective without a lawyer present after being advised of his rights under
Miranda v. Arizona,
During the videotaped interview, Boggs told the detective that he had been out drinking all evening with Sanchez, whom he allegedly had met for the first time that day. According to Boggs, Sanchez “became violent with somebody else” earlier that evening after he became intoxicated. Boggs stated that he was walking down the street with Sanchez later that night when they came upon the man on the sidewalk. As related by Boggs, Sanchez then said “f**k the homeless guy,” ran up to the man on the sidewalk, and began striking the man repeatedly on the face while Boggs stood nearby in shock at what was happening. According to Boggs, Sanchez grabbed the backpack from the homeless man and took off running from the scene, and Boggs followed. Boggs stated that upon seeing the police car, he screamed for Sanchez to stop, but Sanchez kept running and threw the backpack to him. Boggs asserted that he dropped the backpack as soon as Sanchez threw it to him, and that he immediately stopped and put his hands in the air in response to the pursuing police car.
Sanchez was later apprehended, and Sanchez and Boggs were jointly indicted for
Boggs took the stand and maintained that he was an innocent bystander rather than a party to the robbery. In contrast to his videotaped interview, Boggs claimed for the first time that he had attempted to pull Sanchez off the homeless victim in order to stop the attack.
After hearing all of the testimony, the jury found Boggs guilty of the charged offense. The trial court denied his motion for a new trial as amended, leading to this appeal.
Boggs argues that there was insufficient evidence to demonstrate that he was a party to the robbery of the homeless victim rather than merely present at the scene of the crime. See generally
Burks v. State,
“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force.” OCGA § 16-8-40 (a) (1).
Even if a person does not directly commit the crime, a person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime.
(Citation and punctuation omitted.)
Green v. State,
Based upon the evidence presented at trial, a rational trier of fact was authorized to find Boggs guilty beyond a reasonable doubt of being a party to the crime of robbery.
Jackson,
Boggs argues, however, that the state failed to exclude every reasonable hypothesis except that of his guilt as required by OCGA § 24-4-6. 2
To support a verdict, circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. ... It is only when the evidence is insupportable as a matter of law that the jury’s verdict may be disturbed, even where the evidence is entirely circumstantial.
(Footnote omitted.)
Buruca v. State,
Contrary to Boggs’s contention, the present case is not controlled by
Shearin v. State,
2. Boggs next asserts that a fatal variance existed between the victim identified in the indictment and the victim identified at trial. We are unpersuaded.
A variance between the victim’s name as alleged in the indictment and as proven at trial is not fatal, where the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the victim identified in the indictment was the same as the victim identified at trial. See
Harris v. State,
The indictment averred that Sanchez and Boggs committed robbery in that “in the County of Chatham and State of Georgia, did, on or about September 1, 2007, with intent to commit theft, take Steven Bonngardar’s backpack by force.” While the state did not present any witnesses who referred to the victim by first and last name, the state did present testimony reflecting that a man had his backpack taken by force on September 1, 2007, in Chatham County, Georgia, by Sanchez and Boggs. Moreover, Boggs referred to the victim by last name during the course of his own testimony. Because the testimony showed that the victim referred to at trial was the same victim identified in the indictment, no fatal variance existed in this case.
See Montfort,
3. Boggs also claims that his constitutional right to confrontation was violated because the state failed to call the victim as a witness at trial. Again, we disagree. A defendant’s right to confrontation is not implicated unless the jury hears an out-of-court statement of an unavailable declarant that was testimonial in nature and was introduced to prove the truth of the matter asserted. See
Crawford v. Washington,
4. Boggs contends that the prosecutor improperly cross-examined him about whether he had been previously arrested for driving under the influence (“DUI”). or had been dishonorably discharged from the military. The issue has been waived, however, because Boggs failed to object to the questions posed by the prosecutor during the trial. See
Hight v. State,
5. Boggs maintains that his trial counsel rendered ineffective assistance in several respects. To prevail on his ineffective assistance claim, Boggs must show that his trial counsel’s performance was
deficient and that the deficient performance so prejudiced him that there is a reasonable probability that, but for that deficiency, the outcome of the trial would have been different.
McCowan v. State,
(a) Boggs first argues that his trial counsel performed ineffectively by failing to object or move for a mistrial after the prosecutor cross-examined him about whether he had been previously arrested for DUI or had been dishonorably discharged from the military. We conclude that trial counsel’s decision not to object or move for a mistrial was a reasonable trial strategy.
On cross-examination, the prosecutor asked Boggs if he had ever been arrested for DUI, and Boggs responded, “No, ma’am, and you’ve already ran my record and you can tell that it didn’t happen.” The prosecutor then questioned Boggs regarding his discharge from the military, and Boggs adamantly denied that he was dishonorably discharged, reiterated that there was “nothing on [his] record,” and challenged the prosecutor to name any alleged acts of wrongdoing that he had committed in the military. The prosecutor then ceased her cross-examination
While Boggs’s trial counsel did not initially object or move for a mistrial in response to the prosecutor’s questions, he did address the prosecutor’s questions during closing argument. Trial counsel emphasized at several points in his closing argument that the state never presented any evidence that Boggs had any prior arrests or was dishonorably discharged, and repeatedly maintained that Boggs had a clean criminal record and military history.
It is apparent from the record that defense counsel made the strategic decision to wait until closing argument to respond to the prosecutor’s questions. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.)
Gray v. State,
(b) Boggs next argues that his trial counsel performed ineffectively by failing to request a continuance or challenge the admission of his videotaped police interview, when the prosecutor did not produce the videotape to the defense until the day of trial. We disagree.
The record reflects that Boggs’s trial counsel did in fact request a continuance based upon the tardy production of the videotape to the defense. The trial court granted the request in order to give trial counsel an opportunity to review the videotape. After trial counsel reviewed the videotape, the trial court proceeded forward with the trial without any further objection from Boggs’s trial counsel. At the hearing on Boggs’s motion for new trial, trial counsel testified that there was no material difference between the videotaped interview and a written summary produced to him by the state prior to trial, and that he had felt prepared for trial after having an opportunity to review the videotape.
To prove deficient performance by his trial counsel, “[Boggs] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.” (Citation and punctuation omitted.)
Shaw v. State,
(c) Boggs also argues that his trial counsel performed ineffectively by failing to challenge the admission of his videotaped police interview on the ground that his rights under the Fifth Amendment and
Miranda,
At the hearing on Boggs’s motion for new trial, trial counsel testified that his decision to forego challenging the admission of the videotape was made after reviewing the videotape and consulting with Boggs. Trial counsel further testified that he had discussed the case with Boggs on several occasions before trial, but that the first time he ever heard that Boggs had requested an attorney was when Boggs testified at trial.
Trial counsel’s performance was not deficient under these circumstances. As to the
As to the issue of Boggs’s intoxication during the police interview,
intoxication, standing alone, does not render a statement inadmissible. If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.
(Citation, punctuation and footnote omitted.)
Forehand v. State,
(d) Boggs further argues that his trial counsel performed ineffectively by failing to object to certain assertions made by the prosecutor during her opening statement. According to Boggs, those assertions were improper and subject to an objection because the
prosecutor lacked a good faith belief that evidence would be presented at trial to corroborate the assertions. See
Hartry v. State,
In
Peterson v. State,
The present case is controlled by
Peterson.
Boggs did not cross-examine the prosecutor at the hearing on his motion for a new trial or otherwise present any evidence reflecting on what the prosecutor anticipated the evidence would show prior to trial. As such, he cannot establish that the prosecutor lacked a good faith basis for her assertions made during her opening statement. Additionally, the trial court specifically instructed the jury that opening statements are not to be considered as evidence. Thus, Boggs cannot succeed on his ineffective assistance claim predicated upon the prosecutor’s opening statement. See id. See also
Wilcox v. State,
(e) Lastly, Boggs argues that his trial counsel performed ineffectively by failing to investigate and learn prior to trial that the homeless victim would not be called by the state to testify. Boggs, however, has failed to show how this alleged deficiency by trial counsel prejudiced him in any way. To the extent that Boggs is claiming that the defense would have secured the presence of the victim to testify if a proper pretrial investigation had been performed, he failed to proffer the testimony of the victim at the new trial hearing in order to show how it would have been favorable to him. It follows
Judgment affirmed.
Notes
An alleged victim’s testimony is not necessary to convict a defendant where there is other testimony showing that the defendant committed acts which establish the elements of the charged offense. See
Williams v. State,
OCGA § 24-4-6 provides:
To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.