Howard v. StateHoward v. State
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- Before:
- Blackburn
Spratt Howard was convicted of armed robbery and sentenced to life without parole pursuant to the mandatory sentencing provisions for recidivist offenders under
1. In his first six enumerations of error, Howard contends that, in sentencing him to life without parole, the trial court improperly followed the procedural guidelines of
At such a hearing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.”
The record in this case reflects that the trial judge held a presentence hearing; however, he dismissed the jury before it began.
(a) “If the State intends to introduce evidence that defendant is a recidivist for sentencing purposes, it must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to
(b) “The purpose of
(c) Howard’s contention that the imposition of the sentence man
dated by
(d) Howard further contends that, because his conviction for armed robbery was his first serious violent felony,
2. In his seventh enumeration of error, Howard contends that the evidence was insufficient to support his conviction. We disagree.
“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Howard] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jack son v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).
The evidence, in the light most favorable to the verdict, shows that Howard, with the help of an accomplice, robbed Baron Reed at gunpoint in a hotel parking lot. Based on a photo lineup, Reed identified Howard as the man who robbed him. Reed also identified Howard at trial. In addition, Tamatha Brown, who had known Howard for approximately 20 years, testified that she witnessed the robbery taking place, and she also identified Howard as the robber. As a result, the jury in this case had sufficient evidence before it to determine that Howard was guilty of armed robbery beyond a reasonable doubt.
3. In his eighth enumeration of error, Howard contends that the court erred in denying his motion for new trial because the trial court’s reading of the names of the grand jurors listed on the indictment to the jury unduly prejudiced his case. This contention is without merit.
Prior to reading the indictment, the trial judge warned, “I caution you that the indictment itself is not evidence in the case and should not be considered as evidence. It is merely the formal means by which an accused is brought forward and charged with a commission of a criminal offense.” At the time the indictment was read, Howard failed to object to the reading of the grand jurors’ names. As such, this issue must be considered waived for purposes of appellate review. Even if Howard had preserved his argument, however, it would fail. As the trial judge instructed the jurors that the indictment was merely the manner by which charges were
4. In his ninth enumeration of error, Howard contends that the trial court erred in denying his motion for new trial because testimony that the police “had his photograph on file” unduly prejudiced his case. Again, we disagree.
Howard argues that the testimony regarding the photo lineup shown to Reed for purposes of identifying him supported the inference that Howard was one of the “usual suspects” being sought by the police department. We have reviewed the transcript, and we find no merit in Howard’s interpretation of the testimony. While Investigator Monty Mohr testified that the photographs used for the lineup were “photographs that [he had] available through his means at the police department,” Mohr did not testify either that Howard was a “usual suspect” or that his photograph was kept “on file” at the police department.
5. In his tenth enumeration of error, Howard contends that the trial court erred in denying his motion for new trial because testimony that he had paid his cousin to perform oral sex on him was unduly prejudicial as it made the jury “dislike” him. Again, we disagree.
As an initial matter, Howard failed to object to this evidence both during a Jackson-Denno hearing and during testimony before the jury. “Because [Howard] failed to specifically object to the evidence on the ground that it impermissibly placed his character in issue, he may not raise that objection for the first time on appeal.” Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995). Furthermore, even if there were any merit to Howard’s contention, the error would be harmless in light of the overwhelming evidence of his guilt. Thomas v. State, 226 Ga. App. 441, 444 (5) (487 SE2d 75) (1997).
6. In his eleventh enumeration of error, Howard contends that the trial court erred in not charging the jury on robbery by intimidation and theft by taking as lesser included offenses of armed robbery. This contention is also without merit.
7. Finally, Howard, by and through his present attorney, filed a motion to stay this appeal and requested that his case be remanded to the trial court in order that he may amend his motion for new trial to include a claim of ineffective assistance of counsel. There is no such procedure available to appellant as a stay of his appeal, notwithstanding the language contained in Herndon v. State, 229 Ga. App. 457 (494 SE2d 262) (1997). If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue, with the right in the appellant to appeal the ruling. To the extent that Division 12 of Herndon, supra at 461, purports to establish a procedure whereby the appellant should have filed a motion for stay of direct appeal, it is hereby overruled.
Our Supreme Court has clearly stated that “the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised
before appeal
if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising [that] issue at a later time.” (Punctuation omitted; emphasis in original.)
Glover v. State,
266 Ga. 183, 184 (2) (465 SE2d 659) (1996). Accordingly, if an appellant obtains new counsel prior to appeal, and counsel has the opportunity to raise the issue of ineffectiveness through a motion for new trial but fails to do so, we will not remand the case but will find that appellant has waived his right to raise the issue. Furthermore, in such an instance, even if counsel uses his opportunity to raise the issue of ineffectiveness
This case falls into the first category of cases discussed in the preceding paragraph. After Howard’s retention of new counsel, the trial court vacated its earlier denial of Howard’s motion for new trial and gave Howard 30 days in which to amend such motion to include allegations of ineffective assistance of counsel. No amendment was timely made, and the trial court once again denied Howard’s motion for new trial. Because Howard, through his new appellate counsel, had the opportunity to assert ineffective assistance of counsel below and failed to do so, such assertions cannot be raised for the first time on appeal. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).
Judgment affirmed.
Andrews, C. J., McMurray, P. J., Pope, P. J., Johnson, P. J., Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Beasley and Eldridge, JJ., concur in the judgment only as to Division 7.