Lead Opinion
Appellant Kentez L. Glass and his co-defendant Christopher K. Anderson were separately indicted, but later tried jointly before a
1. Construed most strongly in support of the verdicts, the evidence, as summarized by the Court of Appeals, shows the following:
[I]n the late evening of August 16, 2007, Anderson exchangеd words with . . . Glass and others as he departed a Coweta County pool room, returning shortly thereafter with a gun which he fired at Glass but missed as he ran. Glass, in turn, returned to the tavern early the next morning and fired into a crowd intending to hit Anderson. Instead he killed [Ms. Bennett, who was] an innocent bystander.
Anderson v. State, supra. Glass cursorily argues several matters, such as the criminal record of several witnesses and the placement of his picture around the community with an alert to be on the lookout, that only affect “[t]he credibility of the witnesses and the weight to be given to their testimony[, which] are matters for the jury.” Cox v. State,
As part of his challenge to the sufficiency of the evidence, Glass complains that the photоgraphic lineup used to identify him was impermissibly suggestive. However, he fails to point out where he raised this alleged error below. See Newton v. State,
Glass also fails to point out where he raised his claim that the GBI firearm examiner who testified at his trial later resigned due to charges of falsifying information and lying under oath in other cases. Even assuming that on motion for new trial this claim was sufficiently supported,
[a] new trial is not authorized where the only effect of newly discovered evidence would be to impeach the credibility of a witness and “(t)his is true even though the witness whose credibility would be impeached gave the only testimony on some vital point in the case. (Cit.)” [Cit.]
Bryant v. State,
Moreover, the fact that the gun used to kill the victim was never found does not make the evidence insufficient. Walker v. State,
Numerous eyewitnesses saw Glass fire a gun into a crowd striking the victim, shout expletives, and assert that he was a killer. The evidence was more than sufficient for a rational trier of fact to find Glass guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
However, the count that alleged aggravated assault upon the person of Anderson by shooting at him must merge into the felony murder count, which alleged that Glass caused the death of Ms. Bennett while in the commission of aggravated assault upon the person of Anderson.
Although the felony murder and the underlying felony were committed on different victims, the count of the indictment alleging felony murder sets forth the aggravated assault against [Anderson] as the underlying felony supporting the charge of felony murder. [Cit.] “Accordingly, a separate conviction and sentence on that aggravated assault count was nоt authorized and must be vacated.” [Cits.]
Wyman v. State,
2. Glass contends that the trial court set pre-trial bond in an excessive and unreasonable amount, thereby preventing him from
“OCGA § 17-8-5 (a) requires the trial judge to ensure that the testimony in all felony trials is taken down.” Ivory v. State,
However, under State v. Hart, supra, the State’s duty to request the court reporter to transcribe the reported testimony in a fеlony conviction has no time limit and thus cannot relieve an appellant from a felony conviction of his statutory duty to “cause the transcript to be prepared and filed as provided by Code Section 5-6-41....” OCGA § 5-6-42. Thus, where the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant to OCGA § 5-6-41. Zachary v. State,
Testimony at the hearing on the motion for new trial in this case “is not a sufficient substitute for a transcript.” Coates v. State,
3. Glass further contends that the trial court erred in allowing the joinder of his case and Anderson’s over objection.
The motion to sever was heard at the same time as the motion to
The law does not permit Glass, who as the complaining party has the burden of having the record completed under OCGA § 5-6-41 (f), (g), “simply to refuse to participate in the statutory procedure and then claim error. [Cits.]” Turner v. State, supra. See also Stubbs v. State,
Again, we have nothing to review, as Glass has not followed the procedure required by Zachary. Ivory v. State, supra. “In the absence of a transcript of the hearing on the motion to sever, this court must presume that after hearing the evidence the trial court correctly exercised its discretion in denying the motion. [Cit.]” Davis v. State,
4. The trial court gave a cautionary instruction to the courtroom audience and witnesses with respect to alleged violations of the rule of sequestration. Glass urges that the trial court erred in failing to give that instruction in the presenсe of the jury. However, Glass made no showing during the trial that the rule had indeed been violated. Dawson v. State,
5. At a time when the jury was split during deliberations, the trial court made the following statement to the jury:
This is a case that was tried over about 4 days and has over 200 exhibits in it, and you’ve been deliberating, by my account, approximately four and a half hours, and we’re a*547 long ways from me giving you instructions on a hung jury. I’ll just remind you of your oath tо well and truly try the case. And I will give you this admonition, to sit back and relax and to consider the evidence again with a view toward seeing the evidence from each other’s point of view, and don’t get so fixed or entrenched on any particular point of view that you’re not willing to consider other jurors’ points of view.
Glass contends that this stаtement was prejudicial, specifically arguing that it is reversible error to instruct the jury to consider the expense of the trial as a factor in deliberations. “As no objection was lodged at the time the charge was given, appellate review of this issue is unavailable. [Cits.]” Hatcher v. State,
Moreover, we find no reversible error, much less any “plain error” pursuant to OCGA § 17-8-58 (b), assuming that analysis under that provision is proper in this case. See Collier v. State,
6. Glass urges that trial counsel rendered ineffective assistance in several respects. Under Strickland v. Washington,
(a) Glass argues that trial counsel failed to confer meaningfully with him so as to allow him to assist in his defense. He cites those portions of his testimony at the heаring on the motion for new trial wherein he complained that his attorney spent inadequate time conferring with him. However, that circumstance “‘“is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client. (Cit.)” (Cit.)’ [Cit.]” Ruffin v. State, supra at 91 (12) (d). See also Henry v. State, supra. “Moreover, [Glass] does not specifically describe how additiоnal communications with his lawyer ‘would have changed the outcome of his trial. (Cit.)’ [Cit.]” Henry v. State, supra. See also Ruffin v. State, supra.
(b) Glass complains of trial counsel’s failure to preserve the record for appeal in that she obtained neither written orders on pre-trial motions nor a transcript of the hearing on his motion to sever. However, Glass “made no effort to have any such [portions of the record] reconstructed for use in his motion for new trial. [Cit.] Without a record, [he] cannot establish that the failure to [obtain written orders and a transcript] was prejudicial to his defense. [Cit.]” Moody v. State,
(c) Glass further complains of trial counsel’s failure to move for a mistrial regarding the violation of the rule of sequestration or to request that a cautionary instruction be read to the jury. As noted above, however, a violation of the rule goes only to credibility, not admissibility, and the proper remedy is not a mistrial. Tiller v. State,
“The decision on whether to call an expert witness is onе of trial strategy, and we will not find ineffectiveness if counsel’s strategy and tactics were reasonable at the time.” [Cit.] The holding in Johnson v. State, [272 Ga. 254 (526 SE2d 549 ) (2000)] concerning testimony of an expert in eyewitness identification “does not stand for the proposition that defense counsel is required to call an expert witness at trial where one of the primary issues involved is еyewitness identification of the defendant, let alone the proposition that the failure to call such an expert witness amounts to ineffective assistance.” [Cit.] (Emphasis in original.)
Breland v. State,
has not shown that the outcome of his trial would have been different had trial counsel obtained and called such a witness. “To establish the prejudicial effect of trial counsel’s failure to present certain evidence, an appellant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of the case. Absent a proffer of what the testimony of his expert would have been at trial, [Glаss] cannot show that there is a reasonable probability that the outcome of the trial would have been different had his counsel taken the suggested course.” [Cit.]
Smith v. State,
(e) Glass further argues that trial counsel failed to subpoena his key witness Ryan Towns or other witnesses. Towns’ testimony at the hearing on the motion for new trial was not necessarily inсonsistent with the State’s eyewitnesses. Although Towns claimed that he saw Anderson, but not Glass, with a gun, Towns admitted that he did not
Notes
The crimes occurred on August 17, 2007, and the grand jury returned the joint indictment on September 2, 2008. The jury found Glass guilty on October 24, 2008, and, on that same day, the trial court entered the judgments of сonviction and sentences. The motion for new trial was filed on November 19, 2008, amended on September 14 and 15, 2010, and denied on October 15, 2010. Glass filed the notice of appeal on November 1, 20Í0, and the Court of Appeals transferred the appeal on December 10, 2010. The case was docketed in this Court for the April 2011 term and submitted fоr decision on the briefs.
Concurrence Opinion
concurring specially.
For the reasons given in my special concurrence in Collier v. State,