Earnest Lee Smith appeals the trial court’s denial of his motion for new trial after a jury convicted him on one count of aggravated assault. Smith does not contest that the evidence was sufficient to support his conviction. Rather, he asserts that he is entitled to a new trial on the following grounds: (1) prosecutorial misconduct; (2) newly discovered evidence; (3) ineffective assistance of counsel; and (4) the trial court’s failure to hold a pre-sentencing hearing. For the reasons set forth below, we affirm.
Viewed in the light most favorable to the verdict, the evidence at trial showed that on or around September 25, 2005, Smith got into an argument with Robert Harris as Harris was attempting to exit a store in Broxton, Georgia, to return to his truck. Harris testified that as he reached his truck, Smith pulled up in his own truck and called Harris’ name in a pleasant tone. Harris had turned and begun walking toward Smith’s truck when he saw that Smith had a gun in his hand. Harris stopped and said, “I guess you think you are going to shoot me. . . .” Harris testified that he was six to seven feet away from Smith’s truck at the time. Smith then “cursed loudly” and shot Harris. Harris was transported to a hospital for treatment of his injuries.
Smith testified, however, that no real argument occurred that day; the two were just “talking.” And he stated that he never pointed a gun at Harris. Instead, he said that he kept a gun on the console of his truck. Smith was inside the truck when Harris ran over and tried to open the truck door. Smith locked the door and grabbed his gun. Harris then reached into the window and grabbed Smith’s arm and also grabbed at the gun. Smith said that Harris
No other eyewitnesses to the shooting testified at trial, but Haley Strom, who was in a nearby parking lot, testified that she heard two men arguing and she heard a gun. She turned around and saw a man holding a pistol out of his truck window. The man then drove away quickly, with tires squealing.
Smith moved for a new trial following his conviction, and the trial court denied the motion without explanation. We review the trial court’s order for an abuse of discretion.
Locher v. State,
1. Smith argues that he was entitled to a new trial because the prosecution failed to disclose evidence favorable to the defense. He asserts that the prosecution was aware that two of the police officers who participated in the investigation of the incident, Chief Hugh L. McReady and Investigator Steve Dixon, had concluded that the shooting was self-defense, but the prosecution failed to inform Smith’s attorney of this.
McReady testified at the hearing on the motion for new trial that he was Chief of Police for the City of Broxton at the time of the shooting and he oversaw the investigation in this case. He was present when Harris was interviewed and when he re-created the shooting for police. McReady said he had “strong feelings” that the shooting had been self-defense based upon the trajectory of the bullet through Harris’ arm and blood discovered on the outside of the truck which seemed to show that Harris was standing close to the truck at the time of the shooting. He identified a photograph showing one drop of what appeared to be blood on the outside of the truck as the basis for his opinion. McReady testified that he just assumed that the blood was Harris’, but he acknowledged that Smith was also bleeding that day and the blood could have been Smith’s. Blood evidence was collected by the Georgia Bureau of Investigation, but the evidence was lost, so the blood was never matched to anyone. Moreover, McReady said that he spoke to Smith’s attorney about these concerns one to two days before the trial began. Smith’s trial attorney testified on direct, however, that he did not speak to McReady until the evidence at trial was closed, although he conceded on cross-examination that he may have spoken to him earlier in the day before the close of evidence.
The evidence at the hearing, therefore, supports a finding that Smith was on notice of the information he now claims was withheld by the prosecution before the trial concluded. Yet he raised no objection and made no claim at trial that the State had violated
Brady v. Maryland,
But even in the absence of waiver, Smith’s argument provides no ground for a new trial. In order to obtain a new trial based upon a
Brady
violation, Smith would be required to prove, among other things, that he did not possess the evidence and could not have obtained it with due diligence and that a “reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed.” (Citation omitted.)
Ellis v. State,
Additionally, Smith’s counsel knew from the beginning that Smith would be pursuing a claim of self-defense. Smith’s counsel argued to the jury that the blood on the outside of the truck created reasonable doubt and further argued that the evidence of how the bullet struck Harris supported Smith’s version of events and not Harris’ version. Accordingly, Smith’s counsel argued to the jury the very evidence McReady cited in support of his opinion. Smith, therefore, cannot establish a “reasonable probability” that the outcome of his trial would have been different if the State had disclosed McReady’s opinion earlier. Accordingly, no new trial was warranted and the trial court did not abuse its discretion in denying Smith’s motion on this ground. See
Ellis v. State,
2. Smith also asserted that the trial court erred in denying his motion for new trial on the ground of newly discovered evidence. To support this argument, Smith presented the testimony of Charlie Riley at the motion hearing. Riley testified that he was an eyewitness to the shooting. “Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.” (Citation and punctuation omitted.)
Robinson v. State,
Charlie Riley testified that Smith and he had been friends all their lives. He had also known Harris all his life. On the morning of the shooting, he was scheduled to meet Smith at the store, as he did every day. Riley said that he was at the store and had a direct view of Smith and Harris at the time of the shooting. He said Harris was within one to two feet of Smith’s truck and was “fixing to reach into” or “reaching toward” the truck when he was shot. After the shooting, Riley went inside the store and told them to call 911; then he left the scene. He never told anyone what he saw because he thought the whole thing had been “settled.” Although he saw Smith several times since, he never talked to him about the shooting, and Smith never asked him about it, in the intervening three years before trial. It was only when he found out that Smith had been convicted that he came forward.
In order to establish a basis for new trial on this ground, Smith was required to show, among other criteria, that it was not owing to the want of his own due diligence that he did not acquire the evidence before trial. See
Timberlake v. State,
3. Smith next asserts that the trial court erred in failing to grant his motion for new trial on the ground that he received ineffective assistance of counsel. To obtain a new
(a) Smith argues that his trial counsel was ineffective in failing to adequately investigate the case or meet with him prior to trial. In particular, Smith notes that his trial attorney did not listen to an audio recording of his interview with police until admonished by the trial court on the day of trial that it would be error not to do so.
The evidence showed that Smith’s trial attorney met with Smith when he was first assigned the case and then met with him briefly at the end of each calendar call to discuss the continuances. He said that he probably spent 30 minutes or less with Smith before the trial, and he discussed Smith’s testimony with him the day of trial when they were deciding whether to put him on the stand. But he stated that he never refused to speak with Smith, who was out on bail prior to trial but never requested to meet with counsel. He discussed the case with Smith’s son and knew Smith had been injured when Harris supposedly reached into the window. Smith’s son also provided a list of witnesses, and Smith’s counsel spoke with at least one of those witnesses, a clerk at the store. The other witness he recalled was Smith’s daughter, who knew Smith had been injured, but who was not present at the shooting. Counsel also spoke before trial with Marvin Pridgen, another man who had been at the store that day, and he spoke with McReady and Lee Clements, another investigator, on the day of trial.
The attorney also reviewed the discovery, including incident reports and photographs provided by the State prior to trial and recalled that he questioned either McReady or Clements earlier about the whereabouts of the blood evidence disclosed in those documents. The State did not produce the tape recording of Smith’s interview until the morning of the trial and the prosecutor represented that he did not have the tape until that morning. The State also provided a tape recorder at that time to allow Smith’s counsel to hear the tape. Smith’s counsel said that he was familiar with the police investigation, including his client’s re-creation of events, and felt he knew before trial what the witnesses would be saying. He felt prepared to present Smith’s defense of justification/self-defense at trial.
Less than 30 minutes seems a very small amount of time to spend with a client charged with aggravated assault, even for a public defender who handles 500 cases per year as Smith’s trial attorney does. Certainly, the better practice would have been to spend more time with the client given the serious nature of the charge. But the trial court could have found that the attorney’s trial preparation was not limited to the time he spent with Smith. The court could have found that he also discussed the case and potential witnesses with Smith’s son, he interviewed a number of witnesses, he reviewed the discovery provided by the State and followed up on the blood evidence. Based upon this preparation, Smith’s trial counsel presented his defense of justification to the jury through cross-examination and argument.
Even if we were to find that Smith’s trial counsel’s performance was deficient in this regard, however, it does not relieve Smith of his burden of establishing how his defense was prejudiced. Smith’s complaint that his attorney spent an inadequate amount of time
Accordingly, we cannot say that the trial court’s denial of the motion for new trial on this ground was an abuse of discretion.
(b) Smith next contends that his trial counsel was ineffective because he failed to interview and cross-examine the State’s witnesses.
Smith’s trial counsel cross-examined all of the State’s witnesses except one witness who testified only that he was asleep in his truck outside the store at the time of the shooting and was awakened by the sound of a gunshot. He saw that Harris was injured but he did not see who shot him. Smith fails to explain how the failure to cross-examine this witness prejudiced his defense. But Smith also complains about the length and thoroughness of his trial counsel’s cross-examination of the other witnesses. He notes that his attorney did not question the police witness about the “sloppiness” of the investigation and the angle of Harris’s injuries.
It is well established, however, that “the scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation and punctuation omitted.)
Cooper v. State,
(c) Smith also argues that his trial counsel was ineffective in failing to file a motion for immunity from prosecution/plea in bar pursuant to OCGA § 16-3-24.2 based upon Smith’s claim of self-defense. But “[c]ounsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel.”
Howard v. State,
Moreover, Smith cannot demonstrate how the failure to pursue such a motion harmed him. “[T]o avoid trial under OCGA § 16-3-24.2, a defendant must show that he is entitled to immunity by a preponderance of the evidence.” (Citations omitted.)
State v. Thompson,
(d) Smith further argues that his trial attorney was ineffective in failing to request a jury charge on the use of force in defense of habitation.
3
In support of this argument he cites
Benham v. State,
[f]rom this response, it is evident that defense counsel failed to appreciate that the defense of habitation may have justified the use of deadly force in this case even if that amount of force was not necessarily required to repel Kennemore’s attack. In failing to adequately research and understand the defenses available to her client, defense counsel rendered assistance that fell below the minimum standard set forth in Strickland, supra.
Benham v. State,
Here, Smith’s trial counsel admitted in an affidavit that he never asked for a charge on defense of habitation. By the time he testified at the hearing, he no longer remembered whether he had requested a charge on defense of habitation, although he did recall requesting a charge on self-defense. At no time, however, was he ever asked why he failed to request, such a charge, nor did he provide an explanation in his affidavit. The record in this case, therefore, does not support a conclusion that Smith’s attorney misunderstood the law, as she apparently did in
Benham.
We are left, therefore, with the presumption that trial counsel’s performance fell “within the wide range of
reasonable professional assistance.” (Citation and punctuation omitted.)
Higginbotham v. State,
Moreover, we conclude that Smith has failed to show how he was prejudiced by the failure to request such a charge under the facts of this case. 4 Here, the jury was charged on the law of self-defense, but rejected that defense, and Smith has not established how a jury charge on defense of habitation would have raised a reasonable probability that the outcome of the case would have been different.
(e) Smith also contends that his trial counsel was deficient in failing to test the thoroughness and good faith of the State’s investigation. He asserts that his counsel should have made an issue of the State’s loss of the blood evidence, its failure to swab Harris’ hands for gunpowder residue and the lack of any analysis from the GBI. Although
But as discussed above, Smith’s attorney questioned the police witness about the lack of gunpowder testing and he argued the State failed to prove that the blood evidence supported Harris’ version of events. Although Smith’s current counsel may have followed a different strategy in light of these omissions, Smith has failed to establish that this would have created a reasonable probability that the outcome of the trial would have been different. Moreover, we note that the trial court was not required to credit Smith’s son’s testimony regarding the blood evidence, as it was contradicted by McReady and by the photographic evidence at trial. Smith’s son admitted that even though he sat through the trial and heard all the evidence, he never told Smith’s trial attorney about the blood he saw on the truck.
Thus, we conclude that the trial court did not abuse its discretion in denying Smith’s motion for new trial on the ground of ineffective assistance of counsel.
4. Smith also asserts error in the trial court’s failure to conduct a pre-sentence investigation before imposing sentence. Smith argues that his counsel was ill-prepared to represent him at the hearing because he had not interviewed Smith’s family members. Moreover, Smith apparently informed his trial attorney that he wanted to have his daughter present for the sentencing, but the attorney represented to the trial court that he was ready to proceed with the sentencing hearing. The trial court heard argument and evidence in connection with sentencing. Smith testified on his own behalf as to his health problems, but indicated that he did not owe Harris an apology because he did not do anything to him. He also indicated that he believed the jury had been misled due to the missing blood evidence. After hearing the evidence and argument, the trial court sentenced Smith to twenty years, with ten years to serve.
Smith does not contend that his sentence does not comply with the sentence limits set out in OCGA § 16-5-21 (b) for a conviction for aggravated assault. Nor does he specifically identify any evidence that he contends he was prevented from presenting at the sentencing hearing. He made no proffer, for example, of what his daughter would have said had she been allowed to testify. And Smith cites no authority to support his argument that the trial court’s actions somehow violated the law. Accordingly, we conclude that the trial court properly denied Smith’s motion for new trial on this ground.
Judgment affirmed.
Notes
“If it is [Smith’s] contention that additional time for investigation of the exculpatory material revealed at trial would have enhanced his defense, the proper motion would have been
for an adequate recess.” (Citation and punctuation omitted.)
Mondy v. State,
Indeed, Smith’s counsel stated before that he would not be asking any witness for his opinion as to whether the shooting was self-defense, and thus effectively consented to the State’s Motion in Limine in this regard.
“Habitation” is defined by OCGA § 16-3-24.1 to include “any dwelling, motor vehicle, or place of business.” (Emphasis supplied.)
We note that
Benham
is distinguishable on its facts. There, it was uncontroverted the victim was attacking Benham while she sat in her car; someone tried to pull her away from the car at least twice, but she resisted. In addition, the path of Benham’s car was blocked and she could not leave the scene.
Benham v. State,