Following a jury trial, Maurice Brooks was convicted of burglary (OCGA § 16-7-1) and armed robbery (OCGA § 16-8-41 (a)). Brooks appeals from the denial of his motion for a new trial, challenging the sufficiency of the evidence and arguing that his trial counsel rendered
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.
(Citations and punctuation omitted.) Drammeh v. State,
Detective Seth Bailey and one his colleagues were among the officers who responded to the scene. Bailey learned from other officers that a robbery had occurred and that three black males had fled through the rear of the store. Bailey and his colleague drove around to a road that runs through a residential area and comes up behind the store. While they were driving, Bailey saw a house with a shed and observed a black male, later identified as Brooks, standing near the shed with some bags and looking through one of them. Brooks appeared nervous when he saw the officers and started to walk off. The officers told him to stop, but Brooks ran behind the house and down toward a creek bed. As the officers followed, they found a bag similar to the ones by the shed. Bailey heard his colleague shout, “police, don’t move,” and saw him pointing a gun at Brooks, who was in the creek. Brooks was taken into custody.
After Brooks was apprehended, the lead investigator on the case remarked to some other officers that he wondered where the others were. The lead investigator was standing about six feet from Brooks, with his back to him. Brooks stated, “I don’t know where the other two went. I guess they left me.” The lead investigator directed another
The bags found in Brooks’s vicinity consisted of six cooler totes containing approximately $700 in merchandise from the Family Dollar store and a plastic bag containing money and the deposit slip from the store’s safe. Police recovered a backpack in the same area that contained a handsaw and a hatchet. A crime scene technician discovered a hole in the ceiling in the store’s front office that was big enough to allow a person to get into the store. She also found and photographed a shoe print in the dust on top of a cooler that was similar to the tread on the shoes Brooks was wearing when apprehended. Video from the store’s surveillance system was played and introduced into evidence at trial. The video showed that one of the three men was wearing jeans that had a distinctive pattern on the back pockets that was similar to that on the jeans Brooks was wearing when he was apprehended.
1. Brooks challenges the sufficiency of the evidence, contending that the only evidence linking him to the crimes were his jeans with distinctive back pockets. This argument ignores a host of other relevant evidence. Notably, Brooks made incriminating statements that he took the “stuff” to pay his bills and that he did not know “where the other two were.” When police encountered Brooks in close proximity to the Family Dollar store shortly after the crimes standing near bags containing the stolen cash and merchandise and looking in one of them, he was nervous and fled from the officers. See Shaheed v. State,
2. Brooks argues that he received ineffective assistance from his trial counsel. “To establish an ineffective assistance of counsel claim, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense.” (Citation omitted.) Bright v. State,
(a) Brooks contends that his trial counsel was ineffective because he failed to file a motion to suppress evidence resulting from Brooks’s arrest. When a failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion. Rivers v. State,
Brooks argues that a motion to suppress would have required the State to prove that police had probable cause to arrest him. Detective Bailey, who arrived on the scene in response to a robbery in progress call, testified that he learned from other officers that three black males involved in the robbery had fled toward the rear of the business. Shortly thereafter, Bailey and his colleague encountered Brooks standing by a shed in a neighborhood behind the Family Dollar store. Brooks was standing by some bags and looking through one of them, and he appeared nervous and tried to walk off when he saw the officers. At that point, police had, at a minimum, an articulable suspicion that Brooks committed the crimes and were authorized to stop him for questioning. Anderson v. State,
(c) Brooks contends that his trial counsel was ineffective in failing to timely object during closing argument when the prosecutor made statements of prejudicial matters not in evidence, contrary to OCGA § 17-8-75.
The record reflects that during closing argument, defense counsel, in arguing that jurors could find a reasonable doubt as to Brooks’s guilt, urged them to consider the State’s inability to produce certain evidence, such as the gun used or the gloves worn during the robbery; the State’s failure to conduct a lineup; and the State’s failure to process the crime scene or items recovered by police for certain forensic evidence. Defense counsel also pointed out that the label on an evidence bag tendered into evidence by the State referred to Dollar General instead of Family Dollar. In her closing argument, the prosecutor argued that the reference to Dollar General on the evidence bag was simply a mistake and that pointing it out “was just nothing but smoke and mirrors to distract you from what’s really going on.” Before proceeding to a point-by-point rebuttal of defense counsel’s recitation of purported deficiencies in the State’s case, the prosecutor commented, “I would submit to you again that that’s nothing more than smoke and mirrors, just like the Family Dollar versus Dollar General[.]” The prosecutor concluded her rebuttal by stating: “It’s easy to throw all of these ‘they should have done this, should have done that’ out there to try to confuse you, to try to muddy the water, but the picture is actually pretty clear.” Brooks’s trial counsel did not assert a contemporaneous objection to the prosecutor’s comments but instead moved for a mistrial at the conclusion of closing arguments. The trial court denied the motion, finding that any objection was waived and that the prosecutor’s use of metaphors was not improper.
“Closing arguments are judged in the context in which they are made.” Adams v. State,
Counsel enjoys very wide latitude in closing arguments, and may make use of illustrations, so long as he does not make*357 extrinsic or prejudicial statements that have no basis in the evidence. Counsel’s illustrations... maybe as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.
(Punctuation and footnote omitted.) Rainly v. State,
Viewed in context, the prosecutor used the challenged metaphors in her effort to refute the significance of the purported evidentiary deficiencies cited by the defense. The trial court, in ruling on the untimely motion for mistrial, ruled that the remarks constituted fair oratory, and we find no abuse of discretion in this regard. See Coghlan v. State,
(d) Finally, Brooks argues that he received ineffective assistance from his trial counsel in connection with the State’s plea offer.
On the first day of trial, the prosecutor stated for the record that the State had extended a plea offer to Brooks under which it would recommend a sentence of 20 years, 12 to be served in prison, if Brooks pled guilty, but Brooks rejected the offer. Brooks maintains that his trial counsel rendered ineffective assistance in connection with the plea offer because he did not show Brooks the surveillance video from the Family Dollar store prior to trial. At the motion for new trial hearing, trial counsel admitted that he did not show the video to Brooks, but he testified that he discussed the video and its contents with Brooks. Trial counsel testified that he told Brooks that, while the video was a little blurry, the final scene showed the perpetrators exiting through the back door and the distinctive stitching on the third person’s jeans. Trial counsel also testified that he had several discussions with Brooks regarding the State’s offer; he discussed the discovery and evidence with Brooks; he informed Brooks of the potential sentences he faced; he reviewed all of the defenses with Brooks; and Brooks decided to proceed to trial. Although Brooks provided conflicting testimony regarding what his trial counsel told him about the surveillance video, the trial court was entitled to credit
Brooks also maintains that after he saw the surveillance video at trial, he told his trial counsel that he wanted to change his plea, but his trial counsel never communicated his desire to the prosecutor. At the motion for new trial hearing, trial counsel testified that Brooks did not tell him he wanted to change his plea after viewing the video and that had Brooks done so, he would have spoken to the prosecutor. Again, the trial court was authorized to credit trial counsel’s testimony over Brooks’s account, McDaniel, supra,
Judgment affirmed.