Smith v. StateSmith v. State
On appeal, the evidence must be viewed in a light most favorable to the verdict, and Smith no longer enjoys the presumption of innocence.
Pollard v. State,
1. Smith first contends that the trial court erred in denying his motion to strike for cause a juror who had been the victim of a violent crime. During voir dire the juror indicated that almost 30 years ago her father and ex-husband had, at different times, pulled a gun on her. Upon further questioning, she was asked if the emotional burden caused by the crime would affect her consideration of the case before her. She responded that,
Not if they have some proof that he did it. I mean, I would have to — I would have to feel that there was enough proof that the person did it. I know I’m sympathetic to women. I grew up in a very abusive home with my father. I had a couple of sisters like that, too, but they’re deceased. But I — my own personal feelings, in this case, I'would rather not do it, because I’m not sure of myself. You know, I mean, I would want to see it, I would want to hear the proof, I would want to know within my own self that there was not a shred of doubt. I wouldn’t want to say somebody did something that they really didn’t do.
Absent proof of a manifest abuse of discretion, a trial court’s refusal to strike a juror for cause will not be disturbed.
Greene v. State, 268
Ga. 47, 50 (
We ascertain no abuse of discretion in this case. Although the juror expressed some reservations about her ability to be impartial and desire to be impaneled, she testified that she could render a decision based on the evidence. In fact, her indication that she would convict only if every shred of doubt were removed would, in fact, be advantageous to Smith. Before a juror must be disqualified for cause, it must be shown that her opinion “is so fixed and definite that [she] will be unable to set the opinion aside and decide the case based upon the evidence.” (Punctuation omitted.)
Whatley v. State,
2. Smith complains that the trial court erred in not allowing him to properly examine a witness “with regard to impeachment and prior contradictory statements.”
Smith called former co-defendant Winston McCray as a defense witness and gave no indication that the witness was adverse or hostile. On direct, Smith questioned McCray about the events of the evening and released him. Smith then said he had one more question, and asked, ‘You were arrested in this case, as well, right?” When McCray responded affirmatively, Smith continued, “And, as a matter of fact, you and ‘Q’ and Romio were all arrested. And you were indicted in this case. The State made you an offer — .” The court interrupted and told counsel to ask questions. Smith asked McCray how his case was resolved, and McCray responded that he had pled out. Smith then questioned McCray about any plea offer he had with the State and whether he was required to testify against Smith as part of the offer. The State asked to approach and objected to Smith attempting to impeach his own nonhostile witness in an attempt to get certified convictions admitted. The court responded that it would not allow testimony of how each of the co-defendants’ cases was disposed into evidence.
Smith continued his direct examination, during which McCray made no statements that contradicted any prior statements. He testified that Smith hit the victim and was not asked about a gun. During cross-examination, McCray admitted that he lied to police and again during the probable cause hearing when he said thát Smith did not hit the victim with a gun. During a bench conference on redirect, Smith told the trial court that McCray had made a prior contradictory statement and apparently intended to impeach his witness with this prior statement. The trial court responded that Smith was not surprised by the statements, because he had the plea transcripts. ‘You knew exactly what he said at the time of his plea.” Smith did not respond, and continued questioning McCray thoroughly about his agreement to plead guilty in exchange for 12 months probation and credit for time served. Smith then tendered a certified copy of the
“A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.” (Citation and punctuation omitted.)
Paradise v. State,
Notwithstanding the trial court’s incorrect ruling regarding the prior inconsistent statement, however, we discern no harmful error. McCray was thoroughly questioned by Smith and the State regarding his prior inconsistent statements, and the trial court admitted into evidence a certified copy of McCray’s conviction. Further, although evidence of prior inconsistent, statements is admissible as substantive evidence,
Gibbons v. State,
3. In a related enumeration, Smith maintains that the trial court erred by refusing to allow him to recall McCray on the second day of trial as a hostile witness and cross-examine him about his prior written inconsistent statement. The trial court denied the motion finding that Smith had presented the evidence the day before. “[The jury] know[s] that he has made prior inconsistent statements. . . . You went into the deal that he made. You went into it all. I’m not going to let you recall him unless you can show me something new. All that is already in there.”
“The recalling of a witness for further examination at the instance of either party is always within the discretion of the trial judge. [Cit.]”
Money v. State,
4. Smith also contends that the trial court erred by refusing to allow evidence of McCray’s plea negotiation and subsequent agreement with the State. The evidence belies this contention, however, because the transcript reveals that Smith was allowed to fully explore McCray’s plea negotiation.
During the direct examination of McCray, the following exchange occurred:
Smith: How was [your] case disposed of?
McCray: Pled out.
Smith: And how was that plea offer made?
McCray: It was made by the D.A., I think, and my lawyer.
Smith: And as part of that plea offer did the D.A. require anything of you?
McCray: Yea, that I testify against Romio.
And then again upon redirect:
Smith: What kind of agreement did you make with the District Attorney?
McCray: That I would plead out to criminal trespass and obstructing an officer, and I’ve got to go back to school. I got to come and testify against Romio.
Smith: What did you receive in exchange for that agreement?
McCray: What did I receive?
Smith: In exchange for that agreement. What did you receive?
McCray: I got twelve months’ probation, and credit for time served.
Smith: Now, without that agreement, do you know what you were exposed to?
McCray: Ten to twenty years for hijacking and kidnapping.
the right to cross-examine a key state’s witness concerning pending criminal charges against the witness. It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness. Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony in an effort to please the prosecution.
(Citation and punctuation omitted.)
State v. Vogleson,
5.
To establish ineffectiveness, a defendant must prove that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different. An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment.
(Citations omitted.)
Mathis v. State,
(a) Smith first argues that trial counsel was ineffective for not objecting earlier to the State’s leading questions upon direct examination of one of its witnesses. At the motion for new trial hearing, trial counsel responded that he allowed excessive leading with this witness, one of the victims, because he “thought it was much less effective for the State to simply get simple answers from her as in,
Yeah’ as opposed to allowing her to give long answers to questions that came from her own voice, her own narrative.” Decisions as to whether to interpose certain objections fall within the realm of trial tactics and strategy and usually provide no basis for reversal of a conviction.
Herndon v. State,
Further, Smith does not show how allowing the State to ask the witness leading questions actually prejudiced his case, given that the same facts testified to by that witness were testified to by other witnesses. Smith had to show that there was a reasonable probability the jury would have reached a different verdict absent the alleged error of counsel. See
Concepcion v. State,
(b) Smith also asserts that trial counsel was ineffective for waiving a motion to suppress an out-of-court identification. Prior to trial, Smith moved to suppress an out-of-court showup identification of Smith. Smith withdrew the motion upon the guilty plea of the two co-defendants. At the motion for new trial hearing, trial counsel testified that he waived the motion to suppress after the two co-defendants were convicted because “the State had legally admissible evidence that would bring the same identification testimony in through the co-defendants, who were now going to be testifying or potentially testifying as witnesses. In other words, I thought it was basically a [moot] motion.”
“[Strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citation and punctuation omitted.)
Austin v. Carter,
(c) Smith next asserts that trial counsel was ineffective for failing to “object or lay the proper foundation for the admission of testimony related to the finding of a gun by the police dog.” We note that Smith neglects to delineate the purported error by reference to the record as is required by Court of Appeals Rule 27. “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” (Punctuation omitted.)
Rolleston v. Cherry,
At the motion for new trial hearing, trial counsel testified that he did not object to testimony about the canine finding the gun, because the testimony was not being offered “as to the substance or identification” of the gun and that the dog’s identification did not associate the gun with his client. Failure to make a meritless objection cannot be evidence of ineffective assistance of counsel.
Demetrios v. State,
(d) Smith lastly contends that trial counsel was ineffective for failing to request a speedy trial on the initial indictment. The evidence shows that the State reindicted Smith after two charges were left off the initial indictment. After Smith was reindicted, he filed a speedy trial demand on November 28, 2001, which was amended on December 13, 2001, and was tried within the next term of court following the demand. See
Smith does not contend that the delay from the time of his arrest in February 2001, until his trial began on January 14, 2002, violated his right under the Sixth Amendment of the United States Constitution, so we need not analyze his speedy trial claim under the four factors set forth in
Barker v. Wingo,
The trial court, however, was not required to believe that Smith asked his attorney to file a speedy trial demand before the second indictment. Further, because the record reflects that Smith was tried within the next term following his speedy trial demand on December 13, 2001, we discern no error.
A trial court’s finding that a defendant has received effective assistance of counsel must be upheld unless it is clearly erroneous.
Samples v. State,
Judgment affirmed.