Construed to support the verdict, the evidence presented at trial, set forth more fully in
Anderson v. State,
On the evening set for the robbery, the participants drove to the victims’ home in two vehicles. Anderson, Michael Foster, and Mitchell drove with Knott in his gold Cadillac, and Moses drove his pickup truck.
Anderson,
supra,
When the wife, who had previously retired for the night, entered the room, she was bound with duct tape and made to lie on the floor.
Anderson,
supra,
When the robbers heard the horn, they panicked and fled bеfore the husband could open the safe. In fleeing, Mitchell was pushed to the ground and left behind. Mitchell tossed away the dark sweater he had been wearing and started walking along the road, where he was picked up by a police officer concerned that he might be cold.
Anderson,
supra,
When the police arrived at the home, their investigation led them to believe that the robbers must have had inside information about the business and the location of the safe. They requested and received a list of recent employees, which included Chris Foster. On the way to Foster’s home, they were told that Chris Foster and Mitchell had been stopped on a local highway approximately two hours after the robbery. When they were arrested, they confessed their involvement and identified the remaining conspirators.
Anderson,
supra,
Evidence of the previous home invasion was admitted against Moses and Anderson as a similar transaction, and the gun’s owner identified the gun and also identified Moses and Anderson as two of the four robbers who had invaded his home.
Anderson,
supra,
Case No. A03A2118
1. Moses contends thе trial court erred by instructing the jury on the law of conspiracy both in its main charge and in response to a jury question, because he was not charged with conspiracy. We do not agree.
Unlike the federal law cited by Moses, under Georgia law a defendant may not be charged with both conspiracy and the completed crime. Moses was charged with the completed crimes and was not charged with the crime of conspiracy. But “it is clear that a conspiracy may be proven аnd a jury charge may be given on conspiracy in the language of OCGA § 16-2-20, even though a defendant is not indicted under the theory of conspiracy provided in OCGA § 16-4-8.” (Citations omitted.)
Wiley v. State,
Other evidence presented at trial also connected Moses to the crime. The shotgun identified by the victims as the one used to commit the robberies and the kidnapping was identified by its owner as the one stolen by Mоses and Anderson in a previous home invasion robbery.
Anderson,
supra,
This evidence showed that Moses was present both before and during the home invasion, had provided the shotgun, and had collaborated with the men who went inside the victims’ home. The State’s theory was that Mosеs had conspired with the other three co-defendants and other persons to commit the crime. Here, as in
Williams v. State,
Nor did the trial court err in responding to the jury’s question. Moses alleges
We have a question from the jury, and that is, “If found guilty of conspiracy, are they automatically guilty of all charges?” Now, in a way, that’s kind of a misunderstanding. You don’t find them guilty of a conspiracy. You consider conspiracy as a theory of guilt. . . . The only response I can give you is that ... if you find beyond a reasonable doubt that a Defendant was a party to a conspiracy to commit a crime, a certain crime, then he or they would only be guilty of those acts done naturally and necessarily in furthеrance of the object of that conspiracy.
To clarify this for the jury, the trial court repeated the latter part of the response and asked if the jurors had any questions. The jurors responded that they did not.
This was not an affirmative answer to the jury’s question, nor was it a “constructive amendment to the indictment” that added a crime not charged, as alleged by Moses. The trial court correctly stated the law.
2. Moses maintains his trial counsel provided ineffective assistance in several ways.
(a) Moses asserts that his trial counsel was ineffective in failing to question six members of the panel who said, during preliminary questioning, that they had been crime victims. In addition, one member of the panel indicated that she was married to the chief of police in a local community in the county in which Moses was being tried, and Moses asserts that trial counsel did no follow-up questioning of this juror, either. Counsel eliminated two of these jurors by using peremptory strikes, but because all peremptory strikes were exhausted, counsel was forced to accept two of these panel members as jurors.
It is well established that when a defendant in a criminal trial must exhaust peremptory strikes to eliminate a juror who should have been excused for cause, it is harmful error. The “accused is entitled to a full panel of
qualified
jurors (that is, jurors not subject to being excused for cause) to which to direct his peremptory strikes.” (Citations and punctuation omitted.)
Kirkland v. State,
The transcript reveals that trial counsel did follow up the initial questioning of these jurors, albeit not individually. The jurors who indicated they had been victims of burglaries were asked whether their experiences would allow them to remain impartial, and all panel members addressed indicated that they would not have difficulty being fair.
In addition, a strategic motive is evident here. Counsel apparently decided thаt the experience most likely to lead to bias in this case was not a burglary, but the terror experienced by victims who were tied up at gunpoint when their homes were violently invaded. Either Moses’s trial counsel or counsel for one of his co-defendants followed up with those potential jurors who indicated they had been the victims of such crimes and questioned them individually regarding possible bias. All these jurors indicated that they could be fair and impartial.
The juror who was married to a town’s chief of pоlice was also questioned extensively. She remained firm in her insistence that she could be her “own person” in deciding this case and not consider any possible pro-prosecution bias of her husband. We know of no case addressing this precise issue. This potential juror’s relationship with law enforcement, however, was certainly far more tenuous than that of jurors in other cases in which our appellate courts have affirmed the trial court’s refusal to disqualify for cause. In
Hutcheson v. State,
refused to extend the automatic disqualification rule in Hutcheson to those less connected with law enforcement than full-time police officers. See Denison v. State, 258 Ga. 690 (4) (373 SE2d 503 ) (1988) (no assumption of bias on the part of sworn deputies employed by the sheriff); Wilson v. State,250 Ga. 630 (4) (a) (300 SE2d 640 ) (1983) (no assumption of bias on the part of inactive reserve and auxiliary police); Jordan v. State,247 Ga. 328 (6) (276 SE2d 224 ) (1981) (former police officers currently working at state correctional facility not subject to challenge for cause).
Mosher v. State,
To establish a claim of ineffective assistance of counsel, a defendant must show both that his counsel’s performance was deficient and that a reasonable рrobability exists that but for the deficiency the result of the trial would have been different.
Bailey v. State,
(b) Our conclusion that trial counsel’s performance was not deficient renders moot Moses’s claim that his previous appellate counsel rendered ineffective assistance by failing to raise this point in his amended motion for new trial. Failure to raise a ground for new trial that would not have been granted cannot constitute ineffective assistance of counsel. See generally
Head v. Thomason,
3. (a) Moses asserts that he was convicted by a jury that was not properly instructed on the quantum of circumstantial evidence required for a conviction. In
Robinson v. State,
First, orally adopting a charge requested by a co-defendant is unavailing.
Valdez-Hardin v. State,
That Code section provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of thе guilt of the accused.” The trial court charged the jury:
You are not authorized to return a verdict of guilty based upon circumstantial evidence,unless the evidence as a whole is consistent with guilt and points so convincingly toward the conclusion of guilt that any other conclusion or theory of the case is excluded as unreasonable.
The charge given stated the principle set forth in OCGA § 24-4-6, albeit in different words. It is well established that it is not error to refuse to give a requested instruction in the exact languаge requested when the charge given adequately covers the principle requested.
Massey v. State,
Third, we cannot agree with Moses that the charge given was confusing or misleading. In fact, while the languagе of OCGA § 24-4-6 has been criticized as confusing, see
Grier v. State,
(b) Moses also asserts that his trial counsel was ineffective for failing to submit a written request. He cannot show that the outcome of the trial would have been different had such a request been submitted, however, since we have determined that the charge given covered the same principle. See generally
Holt v. State,
4. Moses claims the evidence was insufficient to support his сonviction on Count 2 of the indictment, armed robbery of the wife. Armed robbery is committed when with intent to commit a theft, one takes property from the person or immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). Moses argues that the State presented no evidence showing that a weapon was used in taking her property. We have held that the elements of the statute are satisfied even when the weapon is concealed, but some physical manifestation of a weapon must be shown, or at least some evidence from which the presence of a weapon may be inferred.
Nelson v. State,
Moses states emphatically that the wife “never testified that she saw a weapon nor did she testify that she believed that the men had a weapon.” This allegation is completely belied by the record. The wife testified that she saw the man with the gun and “could see the tail of the coat flapping as he swung the gun in the hall. ... I could see the gun and the front of the tail of the coat swinging backwards and forwards.” This testimony satisfies the requirement stated above, and it was sufficient to support Moses’s conviction on the charge of armed robbery of the wife.
Case No. A03A2127
5. Knott contends the trial court erred in failing to sever his trial after evidence of a similar transaction was admitted against his co-defendants but not against him. He also argues that the trial court failed to give a sufficient limiting instruction when the similar transaction evidence was introduced. We do not agree.
The similar transaсtion was an armed robbery by co-defendants Moses and Anderson, along with two unidentified assailants, in
which a gun was taken from the victim’s residence. This gun was used in the robbery for which Knott and his co-defendants stood trial. Knott moved to sever his trial, arguing that although the similar transaction was not admitted against him, its admission substantially prejudiced him. He claims that the denial of his motion for severance was error. He reasons that two of the four perpetrators of the similar transaction were his co-defendants in the charged crimes, while two were never identified because they wore masks. Because the charged offenses also involved four individuals and the gun used in the charged offenses was stolen in the similar transaction, Knott argues that it was likely that the jury would infer that he was one of
The question of whether to grant a motion for severance lies within the discretion of the trial court.
Overstreet v. State,
We also note our Supreme Court has held that when an аppropriate limiting instruction is given and the evidence does not directly implicate the movant, severance is not required.
Hannah v. State,
Knott argues that this was insufficient because he specifically requested that the trial court name him in the contemporaneous limiting instruction. The trial court declined to name Knott specifically without knowledge of “what’s going to happen in the rest of the trial.” But at the conclusion of the trial, when all evidence had been presented, the trial court repeated the limiting instruction, this time specifically naming Knott. The trial court also cautioned the prosecutor not to argue that Knott and Foster could be the two unknown participants in the similar transaction, and the district attorney followed the trial court’s instruction. In addition, in closing argument Knott’s counsel emphasized that the jury was not permitted to use the similar transaction evidence against his client.
We know of no case specifically addressing the point raised by Knott. But given the trial court’s repeated instructions, the trial court’s cautionary remarks to the prosecutor, the defense closing argument, and the clarification provided for the jury in the trial court’s final instruction that the evidence was not to be considered against Knott, we find that no harm or prejudice to Knott resulted. The denial of Knott’s motion for severance was not error.
6. In three enumerations, Knott complains of the insufficiency of the evidence to support his conviction. As shown below, we find the evidence sufficient to support Knott’s convictions under the standard set forth in
Jackson v. Virginia,
(a) Knott first maintains his conviction should be reversed because the evidence against him consisted solely of the testimony of Mitchell, an accomplice, which was insufficiently corroborated.
Even slight evidence of corroboration is sufficient, and that evidence may be circumstantial.
Jones v. State,
As noted above, the prosecution’s theory of the case was based upon a conspiracy. Evidence was admitted showing that Knott was present before and during the robbery. And
if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and. they are jointly responsible therefor. This means that everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them.
(Citation and punctuation omitted.)
Burke v. State,
Hill v. State,
(b) Knott next asserts that the evidence showed only that he was an accessory after the fact and not a party to the crime. As the State points out, this argument amounts to nothing more than disagreement with the jury’s verdict. Much evidence, including that pоinted out in the preceding subdivision, showed that Knott was a party to the crime. Mitchell’s testimony, as corroborated by the other evidence, clearly showed that Knott planned the crime with the other defendants, drove to the victims’ home, and participated in the robbery. This enumeration has no merit.
(c) In his final enumeration, Knott maintains that the evidence was insufficient to support his conviction of possession of a firearm by a convicted felоn. We do not agree.
Knott does not deny that he is a convicted felon, but he argues that Georgia law requires the State to show that he possessed the firearm “on or about his person,” citing OCGA § 16-11-126 (a). That statute involves carrying a concealed weapon, and it does include the quoted language. Knott was charged, however, with violating OCGA § 16-11-131, possession of a firearm by a convicted felon, which does not employ the language relied upon by Knott. Indeed, constructive possession is sufficient tо show violation of the statute.
Addison v. State,
The trial court properly charged the jury that if they found a conspiracy, the acts of any one of the co-conspirators were the acts of all. Knott was in constructive possession of a weapon because his co-defendant and co-conspirator Anderson possessed a weapon. His conviction on the firearm charge was therefore adequately supported.
Judgments affirmed.
Notes
All were found guilty. The convictions of co-defendants George Anderson and Michael Foster were consolidated for review and affirmed in
Anderson v. State,
E.g.,
Yarn v. State,