Derrick Cartwright was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a crime.
Viewed in the light most favorable to the verdict, the evidence shows that in the early morning hours of April 3, 2006, Kevin Stafford stopped his car in front of Diane Ruhl’s house in Columbus, Georgia to purchase drugs. Cartwright approached Stafford’s car and confronted him about a drug debt. While Stafford was still sitting in the car, Cartwright shot him in front of several witnesses. Stafford managed to drive a short distance beforе crashing his car into a nearby house. When police arrived, they found Stafford’s body inside his car with a bullet wound to his neck. Police also found a single .380 caliber bullet and shell casing inside the car. Two witnesses had seen Cartwright with a .380 semi-automatic pistol earlier in the evening.
1. The evidence in this case was sufficient for the jury to cоnclude beyond a reasonable doubt that Cartwright was guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a crime. Jackson v. Virginia,
2. All three of Cartwright’s enumerations of error center on his .contention that he received ineffective assistance of counsel. Georgia courts recognize a “strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.” Robinson v. State,
(a) Cartwright first alleges that he receivеd ineffective assistance of counsel because his trial counsel advised him that his juvenile record could be used to impeach him if he testified. He contends that he would have testified on his own behalf if his lawyer had not incorrectly advised him regarding his juvenile record. This allegation lacks merit.
Cartwright cannot conclusively еstablish that his trial counsel indeed advised him that his juvenile record could be used to impeach him if he testified. At the hearing on Cartwright’s motion for new trial, his trial counsel testified that he did not remember telling Cartwright his juvenile record could come in; however, he had no specific recollection of the conversation with Cartwright given thаt it happened so long ago. He testified that he has tried a lot of cases and he always has a conversation with his client about the wisdom of testifying. He doеs not remember ever advising any client not to testify because their juvenile record could be used against them. He stated that he believes the statute is clear that you cannot use a juvenile finding of delinquency against a defendant in a criminal trial.
Only Cartwright and his mother testified to the contrary at the motion for new trial hearing, and the mother testified that she did not discuss trial counsel’s advice with her son, nor did she hear what the trial attorney told Cartwright during the proceedings.
(b) Cartwright next asserts that he received ineffective assistance of counsel because trial counsel failed to impeach the testimony of the detectivе who testified that Cartwright did not raise an alibi defense in his initial interview with police. At trial, Detective Andrew Tyner of the Columbus Police Department testified that Cartwright did not mentiоn an alibi during his initial interview following his arrest. Cartwright claims that Detective Bernard Spicer, also of the Columbus Police Department, testified at a preliminary hearing that Detective Tyner had told him that Cartwright stated that he was at home with his mother and sister at the time of the murder.
When a defendant bases his ineffective assistance of counsel claim on counsel’s decision not to call a particular witness, he “must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony.” Manriquez v. State,
Cartwright did not call Detective Spicer to testify at the motion for new trial hearing, nor did he introduce a transcript of the detective’s testimony from the preliminary hearing. As such, Cartwright has failed to establish a reasonable probability that the outcome of the trial would have been different if Detective Spicer’s testimony had been introduced to impeach that of Detective Tyner. Therefore, the second prong of the Strickland test is not met.
(c) Finally, Cartwright claims that he received ineffective assistance of counsel because trial counsel did not move the court to inquire of one juror whether the second jury verdict was freely аnd voluntarily entered after that juror had indicated the initial verdict was not. The trial court polled the members of the jury when the jury returned its initial verdict. When the judge asked Juror Hardaway if the verdict arrived at was her verdict, she answered in the affirmative. When the judge asked whether it was “[f]reely and voluntarily arrived at,” the juror answered “no.” Whеn the judge sought clarification, the juror explained that she was not forced into the verdict, but said, “It’s just everybody agreed and I went along with it.” The trial court propеrly sent the jury back to deliberate further and they returned later with the same verdict. This time, the judge asked Juror Hardaway if the guilty verdict was her verdict in the jury room and if it was still her verdict “out here.” Juror Hardaway answered “yes” to both questions. Nevertheless, Cartwright now complains that trial counsel’s failure to move the court to ask Juror Hardaway whether the second verdict was freely and voluntarily entered constitutes ineffective assistance of counsel.
The purpose of polling the jury “is to insure that each member of the jury assents to the verdict, and for the court to discern possible coercion.” Benefield v. State,
Juror Hardaway’s response to the initial polling questions did not indicate that she was coerced into assenting to the verdict. Her response merely revealed that she had some reservations. Additionally, the trial court’s questions to Juror Hardaway after
Judgment affirmed.
Notes
The crimes occurred on April 3, 2006. Cartwright was indicted in Muscogeе County on charges of malice murder, as well as the charges of which he was convicted. He was sentenced to life imprisonment on the felony murder charge, five consecutive years on the possession charge, and the aggravated assault conviction merged into the felony murder conviction. His motion for nеw trial, filed May 2007 and amended twice, was heard August 12, 2011, and denied November 4, 2011. Anotice of appeal was filed November 8,2011. The appeal was docketed for the April term in this Court and was submitted for decision on the briefs.