751 S.E.2d 497 | Ga. Ct. App. | 2013
At a joint trial in Gwinnett County Superior Court, Jonathan Deleon-Alvarez, Francisco Palacios-Baras, Tito Hernandez and a fourth co-defendant (who is not an appellant in the instant cases) were found guilty by the jury of kidnapping for ransom
Evidence adduced at trial showed that in early 2009, the Atlanta High Intensity Drug Trafficking Area (HIDTA) task force began a drug trafficking investigation. As part of that investigation, the
That evening, several law enforcement officers set up surveillance of the Floyd County residence, which by then had been determined by police to be that of Palacios-Baras. Starting at about 10:45 p.m., officers observed individuals exiting the house and leaving in several vehicles — a white Ford Expedition, a tan Toyota Camry, and a white GMC Yukon Denali — that had been parked at the residence. Concerned that one of the vehicles was carrying a hostage, officers pursued the departing vehicles and quickly effected traffic stops upon two of them.
Having stopped the Expedition, police extracted its three occupants: (i) Tejada, who was seated in the back seat and who immediately exclaimed that his life had been threatened; (ii) Deleon-Alvarez, who was seated in the back seat beside Tejada; and (iii) the driver, the fourth co-defendant (who is not an appellant). When the Camry was stopped, Hernandez, the driver, was the vehicle’s lone occupant.
That night, officers lost sight of the Denali, and also were unable to locate Palacios-Baras. Based on ping data obtained in connection with one of the targeted cell phones that Palacios-Baras was still carrying, however, officers located him the next day. He was a passenger in a vehicle traveling in tandem with the Denali observed at his residence the night before. During a traffic stop of both vehicles, Palacios-Baras was arrested.
The state presented numerous witnesses who testified about Tejada’s abduction, confinement, and rescue, as well as the arrests of the three appellants.
Four or five men were already at that house, including the four co-defendants. Deleon-Alvarez and Hernandez used duct tape to bind Tejada’s hands and legs, and told Tejada that they needed to solve something. Palacios-Baras and the fourth co-defendant were “leaning around, waiting until [Tejada] got bonded with the tape.” About a half-hour after Tejada was brought to that house, he was lifted and placed in a tan Toyota Camry that was parked in the garage. Hernandez and Deleon-Alvarez also got into the Camry, and Tejada was again blindfolded. While Hernandez drove the Camry away, Deleon-Alvarez pressed what felt to Tejada like the tip of a handgun against Tejada’s back. After leaving that house, Tejada did not see again the two men who had nabbed him from the parking lot.
After about two hours of riding, they arrived at another residence, determined later to be located in Floyd County. Tejada was pulled out of the Camry and taken into the house. When the blindfold was removed, Tejada was in a room with all four co-defendants, each of whom held a firearm. Tejada testified that Palacios-Baras “came up to me, telling me that the drugs were stolen and that he was there to clean up the mess.” As Tejada summarized at trial, “They told me that a [drug deal] had gone wrong and that that was the reason why they had kidnapped me.”
Tejada elaborated at trial that, a few days before he was abducted, he had set up a drug deal between two of his store patrons, as a seller and a buyer. The deal involved three kilograms of cocaine. For brokering that deal, Tejada was to be paid $500. But, as Tejada testified, “[T]he drugs had been ripped off.”
Thus, Tejada recalled at trial that when he was in that room with the four armed co-defendants and Palacios-Baras said to him that he (Palacios-Baras) was there to “clean up,” Tejada discerned that they would “basically make sure that either I pay up, or they were going to kill me.” According to Tejada, “They thought I stole the drugs,” and they demanded from him $84,000, which Tejada explained at trial “was the total amount that was owed for the drugs that was stolen.” Tejada recalled that it was Palacios-Baras who “approached me, telling me that I needed to pay up over some drugs that got knocked off from them. And that they didn’t care who knocked them up, they just wanted the money.” Because Palacios-Baras continually pressed
Shortly thereafter, Tejada testified, one of numerous cell phones at the house rang and, when answered, he overheard the caller warning them to leave the house. Palacios-Baras and Hernandez left the residence first. Deleon-Alvarez and the fourth co-defendant stayed in the house with Tejada and removed the duct tape from Tejada’s hands and legs to enable him to move more quickly. The two threatened to kill Tejada if he made any suspicious movement. They forced Tejada into the back seat of a white Ford Expedition; Deleon-Alvarez sat beside him, aiming a gun at him; and the fourth co-defendant drove the Expedition away.
Soon remarking that cops were following them, the driver increased his speed to outrun the police and tossed a handgun out the window. The patrol car activated its blue lights and siren, pursued the speeding Expedition, then engaged in a maneuver that forced the Expedition to stop. Deleon-Alvarez stashed his gun in the back seat. Additional law enforcement officers converged upon the scene, and the three occupants were extracted from the Expedition and handcuffed. Tejada testified that he told police at the scene that he had been kidnapped from Gwinnett County earlier that day.
According to one of the arresting officers, Tejada also “uttered out something like, they were going to kill me.” The officer saw “grayishwhiteish” glue around Tejada’s wrists. During a search of the Expedition, police found a gun in the glove box and a gun secreted in the back seat. Police found also a gun alongside the road traveled during their pursuit of the Expedition.
Meanwhile, other law enforcement officers effected a stop of the Camry. Hernandez was the driver and only occupant. Officers confiscated $7,100 in cash from his person. A search of the vehicle yielded a loaded “magazine from a handgun,” found near the front passenger seat.
At about 11:20 that same night, other law enforcement officers executed a warrant that had been obtained to search the Floyd County residence. Inside the house, they found, inter alia, “bunched up” duct tape in a trash can, digital scales of a type often used to measure drugs, a pistol, gun holsters, and a bulletproof vest. The next day, police located and arrested Palacios-Baras.
The state also presented the jury with a series of transcripts of (recorded) phone conversations conducted with Palacios-Baras’s targeted cell phones; many of the calls were made on the day in question,
Case No. A13A1000 — Appeal of Deleon-Alvarez
1. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”
motion for new trial was filed before the judgment was entered, making it void. However, the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.6
2. Deleon-Alvarez challenges his conviction on general grounds, arguing that certain evidence was incompetent.
(a) Citing the Supreme Court of Georgia’s recent decision in Luangkhot v. State,
[Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. The exclusionary rule is to protect those whose Fourth Amendment rights have been violated.10
Moreover, “[t]he only authority for a motion to suppress is [OCGA § 17-5-30], and under the provisions of that statute a pretrial motion to suppress is available only to the person aggrieved by an unlawful search and seizure.”
Deleon-Alvarez makes no assertion that his Fourth Amendment rights were violated. Rather, he acknowledges in his appellate brief that the evidence showed that he was not a subscriber of the phones tapped and that his voice was not heard during any conversation of the phones tapped. As Deleon-Alvarez puts it, “Appellant could not move to suppress the wiretap since the phone was not his.” Because there was no evidence that Deleon-Alvarez was a subscriber of the phones tapped and no evidence that his voice was heard during the wiretapped conversations, he lacked standing to seek suppression of the conversations at issue (and thus any alleged fruit of the poisonous tree) on the ground raised here.
[A] law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. That is, under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.14
Trial evidence showed that, based on telephone surveillance, the police had discerned that an abducted individual was being held against his will at a particular residence in Floyd County. A warrant had been issued to search that residence. Police had maintained direct observation of the residence and had seen persons exiting the house and leaving in vehicles, including the Expedition, which police then followed at close range prior to effecting the stop. Those circumstances provided a lawful basis for the traffic stop of the Expedition.
(c) Deleon-Alvarez argues that the victim of the kidnapping crime, Tejada, was an accomplice in drug trafficking, and that there
In light of that Code section, “the testimony of an accomplice used to convict the [defendant] of a crime must be supported by independent corroborating evidence as to the identity and participation of the [defendant] tending to connect him to the crime.”
Pretermitting whether Tejada could have been considered an accomplice of Deleon-Alvarez for purposes of former OCGA § 24-4-8,
(d) Contrary to Deleon-Alvarez’s contention, the evidence adduced against him was sufficient to sustain his conviction of kidnapping for ransom.
3. After the time for filing a brief and enumeration of errors had passed, Deleon-Alvarez filed a supplemental brief,
Deleon-Alvarez did not contend in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,
4. Deleon-Alvarez has filed a motion to remand this case for a hearing “to determine if the appellant has standing or if trial counsel was ineffective for failing to move for suppression of the wiretaps.”
5. As was the situation in Deleon-Alvarez’s case,
6. Palacios-Baras contends that his Sixth Amendment right to confrontation was violated when the trial court sustained objections to his cross-examination of Tejada about a deal Tejada made with the state.
The record shows that Tejada testified at the trial under a grant of testimonial immunity.
Q: Mr. Tejada, you understand that you were testifying under a grant of testimonial immunity, correct?
A: Yes.
Q: And you understand—do you understand what that means?
A: Yes.
Q: Do you understand that that means anything you say cannot be used against you? Anything you testify to cannot be used against you in a future prosecution.
A: Yes.
Hence, Palacios-Baras sought to show on cross-examination that Tejada was thereby biased:
Q: And you have never been in — and you have never been indicted for the crime of conspiracy to traffic in cocaine; is that correct?
A: Yes.
*704 Q: Did you conspire to put together a three-kilo cocaine deal...?
A: Yes.
Q: Okay. So you are here, today, to testify without having ever been charged, is basically what I’m getting at. And you have been granted a complete immunity to testify here today.
A: Yes.
Q: And you know that by testifying here today, you do not have to do one minute in prison for anything that you’ve done in the past, correct?
The prosecutor interjected, “Judge, I object. That’s a gross misstatement of what testimonial immunity is, Judge.” The trial court agreed, responding further with an instruction to the jury explaining:
Testimonial immunity means you cannot be prosecuted for what you say in court or any—directly or indirectly. In other words, the evidence that you give in court cannot turn around and then be admitted against you and used against you, should you be charged with a crime, based upon the things that you admit in court. It differs from transactional immunity, which means you cannot be prosecuted for the transaction at all, any time.35
Thereupon, Palacios-Baras’s cross-examination of Tejada resumed:
Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
A: Yes.
Q: And you know that the penalty is 25 years in prison for trafficking in cocaine and [sic] that amount, so you’ll never have to do that.
Again, the prosecutor objected, which objection the court sustained. Further, the court remarked to defense counsel, ‘You’re
On appeal, Palacios-Baras relies on State v. Vogleson
That is not to say, however, that the Confrontation Clause of the Sixth Amendment prohibits the imposition of any limits on the cross-examiner’s inquiry into the potential bias of an adverse witness. . . . [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.40
Here, the trial court was authorized to determine that, as phrased, the questions that drew objections tended to confuse issues relating to the specific type of immunity extended to Tejada.
7. Palacios-Baras contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,[45 ] [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.46
[I]n the absence of any state statute expressly granting superior courts the authority to issue wiretap warrants that apply outside their own judicial circuits, we hold that current state law vests the authority to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped phones or listening post are located.50
Palacios-Baras contends that, under that holding, the Gwinnett County Superior Court lacked the authority to issue the wiretap warrant for the interceptions at issue here,
Palacios-Baras’s contention demonstrates no error, however, in the trial court’s rejection of his ineffectiveness claim. After Palacios-Baras was convicted, he was appointed new counsel who, as Palacios-Baras concedes on appeal, did not include on motion for new trial an allegation that trial counsel was effective for failing to challenge the propriety of the underlying warrant. “Because appellant’s allegation of ineffective assistance based on [such failure] was not raised on
Even had Palacios-Baras’s post-conviction counsel alleged that trial counsel was ineffective for failing to file a motion to suppress evidence on the ground of an unauthorized warrant, the trial court would have been bound to reject it under this court’s 2012 decision in Luangkhot v. State.
Indeed, Palacios-Baras’s claim that “[certain] evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot’ is, on its face, the product of hindsight, which has “no place in an assessment of the performance of trial counsel.”
Hindsight, whether by a court, the defendant, or defendant’s counsel, is a legally insufficient basis for concluding that counsel’s performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct*709 the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.57
“There is a rebuttable presumption that counsel exercised reasonable professional judgment.”
8. Palacios-Baras has filed a motion to remand this case “for a hearing on trial counsel’s effectiveness consistent with our Supreme Court’s holding in Luangkhot.” Palacios-Baras explains that “[he] did not raise said ineffectiveness in the trial court because Luangkhot was decided after [his] motion for new trial was denied.” Given our holding in Division 7,
Case No. A13A1002 — Appeal of Hernandez
9. Hernandez contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel, asserting that his trial counsel was “ineffective for not making use of available evidence to show that the evidence supported conclusions other than that Appellant was party to the crime of kidnapping for ransom.”
In particular, Hernandez claims that the trial evidence did not “conclusively establish that only four people participated in the criminal enterprise”; that the evidence did not “foreclose someone other than [Appellant as] the driver of the Camry from Gwinnett County to Floyd County”; and that his lawyer did not “offer an explanation for Appellant’s presence at the scene of the crime.” Hernandez posits that his trial lawyer might have advanced theories that his involvement was limited to the Camry — as a prospective buyer of that vehicle, or alternatively, as one serving only to dispose of that vehicle.
Hernandez showed on motion for new trial that, prior to trial, the state provided the defense recordings of numerous intercepted telephone conversations concerning the sales of various vehicles. Hernandez thus posited on motion for new trial that his trial lawyer should have used those conversations to support a defense theory that he was at the Floyd County residence solely to purchase or otherwise dispose of the Camry. On appeal, Hernandez argues that “disposing of the Camry would make Appellant an accessory after the fact. One cannot be guilty both as a principal involved in the crime and as an accessory after the fact.”
But as Hernandez acknowledges in his appellate brief, none of the conversations that he cited on motion for new trial concerned the Camry. And none of the conversations concerned a vehicle transaction involving Hernandez.
Even assuming arguendo that alternate strategies were available for Hernandez’s defense, “[i]t cannot be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence.”
We reject Hernandez’s claim that this trial “strategy was unreasonable to the extent that no competent attorney would have chosen it on Appellant’s behalf.”
While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.69
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.70
Because Hernandez’s trial lawyer, after reviewing the evidence and consulting with Hernandez, made a reasonable decision to pursue an all-or-nothing defense strategy, the trial court did not err in rejecting the claim of ineffective assistance of trial counsel.
10. With new counsel on appeal, Hernandez asserts that counsel who represented him on motion for new trial was ineffective for failing to allege that his trial counsel was ineffective for failing to move to suppress the evidence obtained by investigators through the wiretapping. Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot
At trial, Hernandez’s lawyer elicited testimony from prosecution witnesses that Hernandez was never identified as an owner or subscriber of the three targeted cell phones monitored, nor was he ever identified as a participant of the intercepted conversations. And on appeal, Hernandez makes no assertion that there was evidence that he had standing to pursue suppression of such evidence. We therefore conclude that Hernandez lacked standing to pursue suppression of the evidence,
11. After the time for filing a brief and enumeration of errors had passed, Hernandez filed a supplemental brief, contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot.
Hernandez did not claim in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,
Judgments affirmed.
OCGA §§ 16-5-40 (concerning kidnapping); 16-2-20 (concerning parties to a crime). The indictment alleged that each of the four co-defendants had committed kidnapping for ransom in Gwinnett County on or about October 11, 2009, in that said accused “did then and there unlawfully abduct Jose Wilson Tejada... and hold said person against his will for ransom.” The jury was instructed on parties to a crime.
The state adduced evidence that the location of a telephone handset equipped with global positioning system (GPS) can he determined, oftentimes within a radius of three meters.
None of the co-defendants testified or called any witness.
Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000) (citation and punctuation omitted; emphasis in original).
Id. (citation and punctuation omitted).
McClanahan v. State, 196 Ga. App. 737 (1) (397 SE2d 24) (1990) (citations and punctuation omitted; emphasis in original), overruled on other grounds, Wilson v. State, 277 Ga. 195, 199 (2) (586 SE2d 669) (2003); see Fairclough v. State, 276 Ga. 602, 603 (1) (581 SE2d 3) (2003) (citing McClanahan, supra, in recognizing that a trial court’s action may render “a prior, otherwise void motion for new trial, one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal”) (citation and punctuation omitted; emphasis in original).
292 Ga. 423 (736 SE2d 397) (2013) (concluding that Georgia’s wiretap statute did not authorize superior courts to issue wiretap warrants for interceptions conducted outside the boundaries of their respective judicial circuits).
See generally Jordan v. State, 211 Ga. App. 86, 91 (1) (c) (438 SE2d 371) (1993) (acknowledging that “the genesis of the ‘poisonous tree’ concept is a violation of the Fourth Amendment”).
See Romano v. State, 162 Ga. App. 816, 818 (1) (a) (292 SE2d 533) (1982) (holding that, where defendant did not seek to exclude evidence on the ground that it stemmed from a warrant that lacked statutory authority needed for wiretap, issue of whether “wiretaps and information obtained therefrom were ‘fruits of the poisonous tree’ and inadmissible” would not be considered for the first time on appeal); see also Owens v. State, 308 Ga. App. 374, 380 (3) (707 SE2d 584) (2011) (determining that defendant’s failure to elicit ruling on suppression issue by trial court amounted to abandonment of issue).
Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19) (1987) (citations and punctuation omitted) (applying Fourth Amendment search principles to analyze whether defendant had standing to challenge the electronic surveillance of a co-defendant’s telephone).
Romano, supra at 819 (1) (a) (citation omitted); see Burgeson v. State, 267 Ga. 102, 106 (3) (d) (475 SE2d 580) (1996) (“The focus of our state statutes [regulating eavesdropping, surveillance, or the interception of communication, OCGA §§ 16-11-62 through 16-11-67] is to protect persons from invasions of their privacy.”) (emphasis supplied).
See Ellis, supra (determining that defendant had no standing to challenge, under Georgia statutory law, the electronic surveillance of the telephone of his co-defendant, explaining that “[w]hen the voice of an individual is not heard and the tap is not on his premises, he has no standing”); Rogers v. State, 182 Ga. App. 599, 600 (3) (356 SE2d 546) (1987) (concluding that trial court correctly denied appellant’s motion to suppress the results of electronic
See Division 2 (a), supra.
Garmon v. State, 271 Ga. 673, 676 (2) (524 SE2d 211) (1999) (citations and punctuation omitted).
See id. at 677-678 (2) (determining that police were justified in conducting stop of vehicle after it left a residence at which it had been determined there was probable cause that it was then the location of controlled substances and the site of illegal activity, the nature of some of the illegal activity made it reasonable to conclude that there would be contraband in the vehicle leaving the residence, and which stop was conducted within 20 minutes of police monitoring wiretap of telephone at residence and overhearing discussion of illegal activity).
When Deleon-Alvarez’s trial was conducted in April 2011, OCGA § 24-4-8 (2011) pertinently provided:
The testimony of a single witness is generally sufficient to establish a fact. However, in... felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.
Ladson v. State, 248 Ga. 470, 475 (5) (285 SE2d 508) (1981) (citations and punctuation omitted).
Terrell v. State, 271 Ga. 783, 786 (3) (523 SE2d 294) (1999) (citations omitted).
Hinely v. State, 275 Ga. 777, 779 (1) (573 SE2d 66) (2002).
Id.
See generally Johnson v. State, 288 Ga. 803, 806 (3) (708 SE2d 331) (2011) (reiterating that it is “not error to submit to the jury the question of whether a witness for the state was or was not an accomplice even where the witness has confessed to being an accomplice and has been jointly indicted with the defendant on trial”) (citation and punctuation omitted).
See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
See Court of Appeals Rule 27.
Supra.
See Campbell a State, 253 Ga. App. 325, 326 (3) (558 SE2d 857) (2002) (“Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper”) (punctuation andfootnote omitted); see also Potter v. State, 283 Ga. 576, 578 (3), n. 5 (662 SE2d 128) (2008) (explaining that, while pursuant to its rule, an appellate court may accept supplemental briefs on issues timely presented, such rule does not provide a mechanism by which a party may circumvent the requirement to timely submit an enumeration of errors); Stokes v. State, 281 Ga. 825, 828 (2) (b), n. 4 (642 SE2d 82) (2007) (“[A] supplemental brief is not the vehicle for raising a new issue of law.”).
See Division 2 (a), supra.
See Owens, supra; Romano, supra.
Deleon-Alvarez filed this motion through counsel obtained after he was convicted.
Supra.
Supra (holding that Deleon-Alvarez lacked standing to seek suppression on the ground that the wiretapping was unlawful).
See Chapman v. State, 290 Ga. 631, 634 (2) (b), n. 2 (724 SE2d 391) (2012) (“The failure to pursue a futile motion does not constitute ineffective assistance.”); see also Lewis v. State, 291 Ga. 273, 282 (7) (731 SE2d 51) (2012) (reiterating that a remand to the trial court for an evidentiary hearing on an ineffectiveness claim is not necessary where “we can determine from
See Division 1, supra.
McClanahan, supra (emphasis in original); see Fairclough, supra.
The trial court entered an order that provided:
The Court having considered the State’s motion to grant testimonial immunity to Jose Wilson Tejada, it is hereby ordered that the State’s motion is GRANTED____
[N]o evidence derived directly or indirectly from his testimony during the [underlying trial] may be used against him in any proceeding or prosecution.
See OCGA § 24-9-28 (a) (2011) (providing, in relevant part, that “no testimony or other evidence . . . may be used against the person in any proceedings or prosecution for a crime or offense concerning which he testified or produced evidence under court order”).
See Corson v. Homes, 239 Ga. 534 (1) (238 SE2d 75) (1977) (holding that “[former OCGA § 24-9-28] does not authorize a grant of transaction immunity, i.e., immunity from prosecution”); In re Long, 276 Ga. App. 306, 307 (623 SE2d 181) (2005) (distinguishing “transactional immunity’ from “testimonial immunity,” and interpreting former OCGA § 24-9-28 (a) as providing for the latter in that it “prohibits the State from using compelled testimony or evidence derived from that testimony given under an immunity grant, but would allow the State to prosecute the witness using evidence gathered elsewhere”).
275 Ga. 637 (571 SE2d 752) (2002).
Id. at 638 (1) (citation and punctuation omitted).
Id. at 640 (1) (citations omitted).
Id. at 639 (1) (citations omitted).
Id. (citations and punctuation omitted); see Younger v. State, 288 Ga. 195, 199 (3) (702 SE2d 183) (2010).
See Corson, supra; In re Long, supra.
See generally Young v. State, 290 Ga. 441, 444 (5) (721 SE2d 839) (2012) (“The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”) (citation omitted; emphasis in original).
Vogleson, supra at 638, n. 3, quoting Perez v. State, 254 Ga. App. 872, 876 (564 SE2d 208) (2002) (Ruffin, J., concurring specially).
See Hodo v. State, 272 Ga. 272, 274-275 (4) (528 SE2d 250) (2000) (finding no abuse of discretion, where defendant was allowed to amply explore the state’s witness’s potential for bias, and where defendant asked witness whether he realized that he could be prosecuted and asked witness about any benefit he expected to receive in exchange for his testimony; reasoning that the “mere fact that [defendant] was unable to ask [the witness] to conjecture about possible punishment did not diminish [defendant’s] attempt to show [witness’s] motive for testifying on behalf of the State”). Cf. Vogleson, supra at 640 (1) (finding abuse of discretion, where the trial court refused to permit defense counsel to question a witness who was testifying for the state in exchange for a reduction in prison time about the witness’s belief concerning the amount of prison time he was avoiding by testifying against the defendant, and where the trial court informed defense counsel, “We don’t talk about mandatory sentences. We don’t talk about any of that stuff[,]” and then admonished counsel for ignoring the court’s directive when counsel asked the witness, without referring to “mandatory sentences,” about how much prison time the witness was saving himself by cooperating with the state and testifying against defendant).
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
Hill v. State, 290 Ga. 493, 499 (7) (722 SE2d 708) (2012) (citations and punctuation omitted).
Supra.
Id. at 424-425 (1), citing OCGA § 16-11-64 (c) (2011).
Id. at 423.
Id. at 428 (4). The Supreme Court decided Luangkhot on January 7, 2013 (denying motion for reconsideration on February 18, 2013). Thereafter, the General Assembly amended OCGA § 16-11-64 (c), effective February 13, 2013, so as to provide:
Upon written application, under oath, of the district attorney having jurisdiction over prosecution of the crime under investigation or the Attorney General made before a judge of superior court having jurisdiction over the crime under investigation, such court may issue an investigation warrant permitting the use of a device for the surveillance of a person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by 18 U.S.C. Chapter 119. Such warrant shall have state-wide application and interception of communications shall be permitted in any location in this state.
(Emphasis supplied.) See Ga. L. 2013, p. 4, § 1.
See OCGA § 15-6-1 (20) (providing that Gwinnett Judicial Circuit is composed of the County of Gwinnett).
Allen v. State, 286 Ga. 392, 399 (5) (b) (687 SE2d 799) (2010) (citation omitted); Lynch v. State, 280 Ga. 887, 890 (3) (635 SE2d 140) (2006) (“Contentions of ineffectiveness not raised on motion for new trial by counsel appointed after conviction are waived.”) (citation and punctuation omitted).
313 Ga. App. 599 (722 SE2d 193) (2012), overruled, Luangkhot, supra, 292 Ga. 423. The Court of Appeals’ decision was rendered on January 18, 2012. In the instant case, Palacios-Baras’s trial counsel filed a motion for new trial, then post-conviction counsel filed an amendment thereto on February 28, 2012 to allege ineffectiveness of trial counsel. After a hearing thereon, the trial court entered the denial of the (amended) motion on December 14, 2012.
Hill, supra (citation and punctuation omitted); see Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003) (noting that “in making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and that only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law”) (punctuation and footnotes omitted).
Hill, supra at 499-500 (7) (rejecting claim that trial counsel performed deficiently by failing to request a certain jury instruction, noting that at the time of trial, there was no basis for requesting it); see Chapman, supra.
Jones v. State, 292 Ga. 593, 600 (7) (d) (740 SE2d 147) (2013); Green v. State, 249 Ga. App. 546, 554 (4) (547 SE2d 569) (2001) (determining that trial counsel’s decision whether to file a suppression motion will not be judged in hindsight).
Wright v. State, 285 Ga. 428, 435 (6) (677 SE2d 82) (2009) (citation omitted); see Strickland, supra at 689-690 (III) (A).
Schofield v. Gulley, 279 Ga. 413 (I) (614 SE2d 740) (2005) (citation omitted).
Green, supra; see Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011) (“There is a strong presumption that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.”) (citation and punctuation omitted).
Brown, supra (citation and punctuation omitted).
See Jones, supra; Brown, supra; McClure v. Kemp, 285 Ga. 801, 802-803 (684 SE2d 255) (2009); Green, supra.
Supra.
See generally Billings v. State, 293 Ga. 99, 102-103 (2) (745 SE2d 583) (2013) (denying appellant’s motion to remand case to trial court for a second ineffectiveness hearing, despite appellant’s assertion that he had discovered “additional evidence . . . that could provide additional grounds for a claim of ineffective assistance of trial counsel”; a defendant must raise all allegations of ineffectiveness at the earliest practicable moment, and any allegation not raised is deemed waived); Lewis, supra.
277 Ga. App. 664, 669 (5) (627 SE2d 79) (2006) (remanding case, where appellant raised on appeal allegations of ineffective assistance “which [could not] be resolved by the present record,” and where appellant’s appellate counsel “could not have amended the motion [for new trial to raise ineffectiveness claim] since he was not appointed until after the trial court had ruled on” the motion).
318 Ga. App. 37, 39 (733 SE2d 345) (2012) (retroactively applying then-recent case law, Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), to analyze whether the evidence was sufficient to support kidnapping conviction). Compare, however, Chatman v. Brown, 291 Ga. 785-786, n. 1 (733 SE2d 712) (2012) (explaining that “because the rule created in Garza constituted a substantive change in the law with respect to the elements required to prove the crime of kidnapping at the time that the case was decided, the rule became retroactively applicable” to certain cases), with McClure, supra at 802 (explaining that application of the pipeline rule so as to analyze a claim of error under a new procedural rule “is dependent upon whether the claim
Jones v. State, 282 Ga. 306, 308 (6) (647 SE2d 576) (2007) (citation omitted); see Harris v. State, 280 Ga. 372, 375 (3) (627 SE2d 562) (2006) (although with hindsight counsel could have taken a different approach to witness credibility, the approach he took fell within the wide range of reasonable professional conduct).
See Ingram v. State, 317 Ga. App. 606, 608 (2) (732 SE2d 456) (2012) (“[Strategic decisions provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.”) (citation and punctuation omitted).
Strickland, supra at 689 (III) (A) (citation omitted).
Van Alstine v. State, 263 Ga. 1, 4-5 (426 SE2d 360) (1993) (citation omitted); see Hall v. Terrell, 285 Ga. 448, 455 (II) (E) (679 SE2d 17) (2009) (“There can be more than one reasonable strategy for a defense.”).
Strickland, supra (citation omitted).
See Jones, 282 Ga. at 308 (6) (concluding that defense counsel did not render ineffective assistance at trial by not eliciting certain evidence and by not bringing out certain facts in closing argument, even though defendant argued that such evidence would have bolstered his defense; counsel established through cross-examination of state’s witness that there was no physical evidence to corroborate the state’s version of events and, during closing argument, emphasized the absence of such evidence); Ingram, supra (concluding that ineffectiveness claim was properly rejected, where trial counsel made reasonable decision to pursue an all-or-nothing defense strategy based upon his review of the evidence).
Supra.
See Lewis, supra (reiterating that “a defendant cannot resuscitate procedurally barred claims of ineffective assistance of trial counsel simply by bootstrapping them to a claim of ineffectiveness of appellate counsel”).
See Ellis, supra; Rogers, supra; see also Jordan, supra.
See Chapman, supra.
Supra.
See Campbell, supra; see also Potter, supra; Stokes, supra.
See Division 10, supra.
See Owens, supra; Romano, supra.
