HOWARD v. THE STATE
No. A16A1817
Court of Appeals of Georgia
February 1, 2017
796 SE2d 757
DILLARD, Presiding Judge.
Judgment affirmed in part and reversed in part. Andrews and Ray, JJ., concur.
Leigh E. Patterson, District Attorney, Natalee L. Staats, Assistant District Attorney, for appellee.
A16A1817. HOWARD v. THE STATE.
(796 SE2d 757)
DILLARD, Presiding Judge.
In 1987, following a trial, Ernest Howard was convicted on two counts of aggravated assault, one count of kidnapping with bodily injury, and one count of rape. Howard appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his convictions, arguing thаt the State failed to prove venue and maintaining that the trial court erred in denying his claims of ineffective assistance of counsel. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury‘s verdict,1 the record shows that around 1:00 a.m. on November 8, 1986, C. B. and G. H. set out with a group of friends to a popular unlicensed bar called Jay Wright‘s in Lizella, Bibb County, Georgia. While there, a young man, ultimately identified as Howard, asked G. H. to dance and offered to buy her a drink, which she refused. After an hour or so, a fight broke out amongst some of the bar‘s patrons, and, in the confusion that ensued, the friends who had driven C. B. and G. H. to the bar left without them. Seeing that C. B. and G. H.‘s friends had stranded them at the bar, Howard offered to drive the women home. The two women accepted Howard‘s offer and accompanied him to his car, at which point C. B. sat in the front passenger‘s seat and G. H. sat in the back of the vehicle.
Within a few minutes of leaving the bar, the women realized that Howard was not driving in the direction of their homes. When they asked him to explain this unexpected detour, Howard claimed that he
Howard immediately ordered G. H. to yell for her friend to return to the vehicle, and G. H. complied. But after several minutes, it became apparent that C. B. was not going to return, so Howard left the area and drove around for about three minutes beforе again parking. Once there, he raped G. H. and afterward told her to put her clothes back on. Howard then drove away from the area, stopped near a school, told G. H. to get out of his car, and then drove off. Eventually, G. H. waved down a passing motorist, who coincidentally had just assisted a police officer in changing another motorist‘s flat tire. The motorist helped G. H. into his vehicle and returned to where he had assisted the police officer, who at this point was still aiding the other motorist. After G. H. recounted the abduction, the officer made arrangements to have her transported to a hospital.
Meanwhile, after slamming the passenger door of Howard‘s car and fleeing, C. B. ran for several minutes through brambles and marshy areas before happening upon a group of young men who were camping in a cove on Lake Tobesofkee. Waking the men up, C. B. recounted the abductiоn and advised that her friend was still being held hostage. Agreeing to help, one of the campers told C. B. to get into his truck, and he started the engine. As he did, he saw headlights illuminate from another vehicle, which appeared to be parked across part of the lake in another cove but was now beginning to move. Believing it to be C. B.‘s assailant, the camper drove to the area where he had seen the headlights, but by the time he arrived, there were no other vehicles in sight. Consequently, at C. B.‘s request, the camper drove her home.
Although both C. B. and G. H. provided a physical description of their assailant, neither was familiar with Howard, and thus, law enforcement initially made no arrest. But a few weeks later, C. B. was out at a different nightclub when Howard approached her and asked if he knew her from somewhere. Immediately recognizing Howard as her assailant, C. B. lied about knowing him and gave him a fake name. C. B. also refused Howаrd‘s offer of a ride home, and while still at the club, a friend told C. B. that she knew Howard, but only by his first name, which she said was Ernest. A few days afterward, another
Thereafter, the State charged Howard, via indictment, with two counts of aggravated assault with a deadly weapon (one count for each victim),2 one count of kidnapping with bodily injury,3 one count of rape,4 and two counts of aggravated sodomy (both counts pertaining to G. H.).5 The case then proceeded to trial, during which the State presented the foregoing evidence. And at the conclusion of the trial, the jury convicted Howаrd on both aggravated-assault charges, the kidnapping-with-bodily-injury charge, and the rape charge, but it acquitted him on both aggravated-sodomy charges.
The procedural history of Howard‘s case following his 1987 conviction can aptly be described as tortuous. His trial counsel filed a timely motion for new trial, which he later amended. On August 8, 1989, the trial court held a hearing on Howard‘s motion, during which his counsel informed the court that Howard wanted to obtain new counsеl and allege claims that his trial counsel rendered ineffective assistance. The trial court denied the majority of Howard‘s motion, but it agreed to hold a second hearing, in which Howard could assert his ineffective-assistance claims. The court then held this second hearing on September 28, 1989, during which Howard‘s trial counsel testified regarding his representation.
On November 2, 1989, the trial court issued an order denying Howard‘s motion for new trial, but it is unclear whether Howard ever received a copy of that order at that time. Over the course of the next 20 years, Howard, for the most part acting pro se, filed numerous motions with the trial court and nearly as many unsuccessful attempts to appeal the denials of those motions. Then, on September 27, 2013, Howard filed a motion for an out-of-time appeal, alleging—as he had done several times previously—that he did not receive a copy of the trial court‘s November 2, 1989 order until 1992. The trial court denied this motion as moot based on Howard having already filed another notice of appeal regarding other court orders. Howard appealed that
1. Howard contends, generally, that the evidence was insufficient to support his convictions. We disagree.
At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innoсence.6 And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”7 Accordingly, the jury‘s verdict will be upheld so long as “there is some competent evidence, even though contradicted, to support each fact nеcessary to make out the State‘s case[.]”8 With these guiding principles in mind, we turn first to Howard‘s specific challenge in this regard.
Former
2. Howard also contends that the State failed to prove beyond a reasonable doubt that Bibb County was the proper venue. Again, we disagree.
The Georgia Constitution requirеs that venue in all criminal cases “be laid in the county in which the crime was allegedly committed.”14 And as with every other material allegation contained in an indictment, the State must prove venue beyond a reasonable doubt.15 But the State may do so by circumstantial evidence.16 Accordingly, as is the case with regard to the sufficiency of the evidence generally, the standard of review of the sufficiency of the evidence to support venue is whether, after viewing the evidence in the light most favorablе to the State, any rational trier of fact could have found venue beyond a reasonable doubt.17 Importantly, venue is a question for the jury, and
In this matter, both C. B. and G. H. conceded in their testimony that when Howard drove to the remote location where he parked, they did not know where they were. Nevertheless, the camper from whom C. B. sought help after she escaped testified that he and his friends were camping in a cove on Lake Tobesofkee in Bibb County when they encountered C. B. And indeed, C. B. noted that much of the area through which she fled was surrounded by water. The camper further testified that when he started his truck, he saw the headlights of another vehicle in a nearby cove illuminate and, given the early hour, presumed it was C. B.‘s assailant. Additionally, the detective who investigated the case testified that the areа where C. B. escaped and fled was Lake Tobesofkee in Bibb County. And he further testified that based on G. H.‘s testimony that the second area where Howard parked after C. B. escaped was only three minutes away from the first area, this second location where the rape occurred was also more than likely within Bibb County.
Notwithstanding the foregoing testimony, Howard argues that because both victims conceded that they were not familiar with the area wherе their assailant took them, the State failed to prove venue. But as previously noted, the State may prove venue through circumstantial evidence.19 And the testimony from the camper and the detective certainly constituted circumstantial evidence that the crimes occurred in Bibb County.20 Moreover, there was no evidence presented that “any incident related to the crime took place outside of [Bibb] County.”21 Accordingly, the evidenсe here was sufficient for the jury to conclude beyond a reasonable doubt that venue for the crimes was in Bibb County.22
In order to evaluate Howard‘s claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington,23 which requires Howard to show that his trial counsel‘s performanсe was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel‘s errors, the outcome of the trial would have been different.”24 In addition, there is a strong presumption that trial counsel‘s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption.25 Unless clearly erroneous, this Court will uphold a trial сourt‘s factual determinations with respect to claims of ineffective assistance of counsel; “however, a trial court‘s legal conclusions in this regard are reviewed de novo.”26 With these guiding principles in mind, we turn now to Howard‘s claims of ineffective assistance.
(a) Failure to call witnesses. During his motion for new trial, Howard argued that his trial counsel rendered ineffective assistance by failing to locate and call a host of witnesses. But on appeal, Howard argues only gеnerally that this failure to locate and call witnesses constituted ineffective assistance. In fact, on appeal, he references no specific witnesses who should have been called and does not even argue how trial counsel‘s alleged failure to call these unnamed witnesses affected the outcome of his trial. Suffice it to say, merely alleging that counsel provided ineffective assistance, without more, is “insufficient to еstablish a claim of ineffective assistance of counsel.”27 Moreover, under the rules of this Court, an appellant must support enumerations of error with argument and citation of author-
Nevertheless, we will address trial counsel‘s failure to call the two witnesses, who seemed to be the focus of Howard‘s arguments during the hearing on the motion for new trial. Specifically, Howard claimed that trial counsel rendered ineffective assistance by failing to locate a woman named Patricia, who along with her cousin, Howard claims left the unlicensed bar with him on the night in question and was with him for much of that evening. Additionally, Howard argued that trial counsel was ineffective by failing to call his girlfriend, Valerie Goins, who would have testified that Howard was home with her by 12:30 a.m. on the night in question.
In considering this argument, we first note that the decision on which defense witnesses will be called is “a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.”31 Indeed, which witnesses to call and all other strategies and tactical decisions are “the exclusive province of the lawyer after consultation with his client, and whether an attorney‘s trial tactics are reasonable is a question of lаw, not fact.”32
Turning to the specific witnesses at issue, with regard to Patricia, trial counsel testified that Howard only knew her first name and believed that she had attended Crandall College. Based on this information, trial counsel searched the college‘s records, but was unable to find Patricia. But given Howard‘s lack of sufficient information regarding this alleged witness‘s full name, her whereabouts, or how to find her, trial counsel‘s failure to locate her certainly did not constitute ineffective assistance.33
(b) Failure to adequately prepare. Howard also generally contends that his trial counsel rendered ineffective assistance by not spending enough time meeting with witnesses prior to trial. But trial counsel‘s testimony during the hearing on the motion for new trial, in which he discussed the fact that he spoke with all the witnesses and potential witnesses, except for the victims, who refused to speak with him, belies this contention. Accordingly, there is no basis for finding that Howard‘s trial counsel provided ineffective assistance in this regard.36
(c) Failure to make objections. Finally, Howard argues—again only very generally—that his trial counsel rendered ineffective assistance by failing to object when the State‘s prosecutor employed leading questions during the direсt examination of the State‘s witnesses, including the victims. Putting aside the fact that Howard fails to specifically identify the objectionable leading questions on appeal,37 he never questioned his trial counsel during the hearing on his
For all of the foregoing reasons, we affirm Howard‘s convictions and the denial of his motion for new trial.
Judgment affirmed. Reese and Bethel, JJ., concur.
DECIDED FEBRUARY 1, 2017.
Jonathan P. Waters, for appellant.
K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.