THE STATE v. REYNOLDS
A15A0072
775 SE2d 187
Dillard, Judge
Taulbee, Rushing, Snipes, Marsh & Hodgin, Christopher R. Gohagan, amicus curiae.
A15A0072. THE STATE v. REYNOLDS. (775 SE2d 187)
DILLARD, Judge.
A jury convicted Shareef Reynolds of two counts of aggravated assault, two counts of false imprisonment, armed robbery, burglary, theft by taking, possession of a firearm during the commission of a felony, possession of marijuana less than one ounce, and possession of a firearm by a convicted felon. Thereafter, Reynolds retained new counsel and filed a motion for a new trial, which the trial court granted because it found that he received ineffective assistance of counsel when his trial counsel intentionally elicited testimony about his prior drug convictions. The State appeals, arguing that the trial court erred in granting Reynolds a new trial because his counsel’s decision to present evidence of his prior convictions was in furtherance of a reasonable trial strategy. We
In the case sub judice, the evidence shows that on July 20, 2007 at around 3:00 a.m., the victims, two female roommates, were asleep in an upstairs bedroom of their home when two men kicked in the balcony door to the bedroom, pointed guns at them, demanded money, and told the victims to give them “everything that [they] had.” Then, one of the perpetrators pointed a gun at a victim and asked where she kept her money. The victim grabbed the gun, but the assailant pulled it back and struck her in the face with it. At some point, a third man—later identified as Reynolds—arrived and held the victims at gunpoint while the other men ransacked the home. And when one of the victims began praying out loud, Reynolds told her that “he was trying to make this a robbery, don’t make it into a homicide.” In the end, the perpetrators stole several items from the victims, including an Xbox, a computer, clothes, a necklace, $800 in cash, and a car. Immediately after the perpetrators left, the victims called 911 to report the robbery. A few minutes later, a police officer arrived, and the victims provided him with a detailed description of their attackers.
Shortly thereafter, an officer with the Palmetto Police Department heard a radio alert to be on the lookout for a “getaway car” connected to a home invasion. Three to four minutes later, the officer observed a vehicle, with two male occupants, that matched the description of the stolen car. The officer activated his flashing lights to stop the vehicle, but instead of stopping, the vehicle slowed down and the men fled from the car. The driver and passenger sprinted in opposite directions, and the officer gave chase to the driver. After the driver—who was later identified as Mark Newsome—was detained, the officer provided a description of the passenger to other officers who arrived on the scene, and eventually, one of them apprehended a man matching that description. The passenger—who was later identified as Reynolds—had mud and debris on his clothes, and was in possession of marijuana. During the investigation that ensued, weapons and items that were taken from the victims were found inside the stolen car. Additionally, a latent fingerprint, which matched Reynolds’s right thumbprint, was lifted from the exterior of the stolen car near the right front-door handle.
Reynolds and Newsome were charged, via indictment, with two counts of aggravated assault, two counts of false imprisonment, armed robbery, burglary, theft by taking, possession of a firearm during the commission of a felony, possession of marijuana less than one ounce, and possession of a firearm by a convicted felon. And after a joint trial, a jury convicted them of all charges.1
Reynolds obtained new counsel and filed a motion for a new trial, arguing, inter alia, that he received ineffective assistance of counsel when his trial counsel presented evidence that he had two prior convictions for possession with intent to distribute cocaine. After a hearing, the trial court granted Reynolds’s motion, finding that, instead of presenting evidence of Reynolds’s convictions, effective counsel would have objected to the admission of those convictions in the event that the State sought to admit them. The court further noted that, if the State had attempted to introduce Reynolds’s prior convictions to impeach him, the convictions would have been inadmissible because the State did not have certified copies. In sum, the court concluded that, having heard the evidence in the case and judged the credibility of the witnesses, there was a probability of a different result if the convictions had not been introduced. This appeal by the State follows.2
In its sole enumeration of error, the State argues that the trial court erred in granting Reynolds’s motion for a new trial because his trial counsel’s decision to present evidence of his prior convictions was in furtherance of a reasonable trial strategy. Specifically, the State contends that counsel’s reasonable strategy was to portray Reynolds as a drug
At the outset, we note that, while the first grant of a new trial on general grounds is reviewed for abuse of discretion,3 this Court reviews “de novo the trial court’s first grant of a new trial on a special ground involving a question of law.”4 And here, the trial court granted Reynolds a new trial on a special ground, namely that defense counsel’s deficiencies were so serious that they deprived Reynolds of his Sixth Amendment5 right to effective assistance of counsel.6 And the determination of whether Reynolds received effective assistance of counsel “involves a mixed question of law and fact, which requires the Court to employ two different standards of review.”7 Accordingly, we review de novo the trial court’s decision as to any questions of law, while applying the clearly-erroneous standard of review to the trial court’s factual findings and credibility determinations.8
Specifically, in evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).9 Under this test, the appellant first must show that counsel’s performance was deficient and, second, that he was prejudiced by counsel’s deficient performance.10 Moreover, there is a “strong presumption” that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that “any challenged action by trial counsel might be considered sound trial strategy.”11 In applying the second prong, the question is whether “there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”12 While this burden is not impossible to carry, it is “a heavy one.”13 With these guiding principles in mind, we turn now to the State’s specific claim of error.
Initially, we note that Reynolds testified in his own defense and denied any involvement
Q. Have you ever been in trouble with the law before . . . ?
A. Yes. I got a lot of possession with intent charges. I got two of them, two possession with the intent to deliver cocaine.
Q. Now, let’s slow down and make sure the jury understands exactly what you are saying, okay?
A. I was selling crack in Delaware, and I got locked up twice for selling crack.
Q. So you got arrested two different times in Delaware for selling crack cocaine?
A. Yes, Sir.
Later, during his closing argument, defense counsel emphasized Reynolds’s testimony that his thumb came into contact with the stolen car during a drug transaction and reminded the jury that “[he] was selling drugs, [he] was selling marijuana, [he] sold cocaine back in Delaware.”
As previously noted, the State contends that Reynolds’s counsel was not ineffective because it was a reasonable trial strategy for defense counsel to portray him as a drug dealer in an effort to show that his thumbprint was found on the car due to a drug transaction, not as a result of his involvement in the robbery. In this regard, the Supreme Court of Georgia has held that matters of trial strategy and tactics “do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances.”14 And here, Reynolds’s trial counsel did not testify at the motion-for-new-trial hearing,15 which makes it “extremely difficult to overcome the presumption that counsel’s conduct resulted from reasonable trial strategy.”16
In Henderson v. State, 285 Ga. 240 (675 SE2d 28) (2009),17 the Supreme Court of Georgia held, under similar factual circumstances, that a defendant’s trial counsel was not ineffective for eliciting testimony that portrayed his client as a drug dealer because it was a reasonable trial strategy to elicit such testimony to show that the defendant was present at the scene of an armed robbery to sell drugs, not to commit a pre-planned robbery.18 Thus, our Supreme Court concluded that the defendant had “failed to overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.”19
Similarly, in Einglett v. State, 283 Ga. App. 497 (642 SE2d 160) (2007),20 we held that trial counsel’s strategy of attempting to portray his client as a drug addict, rather than as an armed robber, was a reasonable trial strategy.21 In Einglett, the defendant was tried for burglary and armed robbery, and two eyewitnesses identified him as being at the residence where the crimes allegedly took place.22 The defense presented testimony that the victim was a drug dealer, who
presented evidence of the defendant’s prior drug-related offenses, and defense counsel did not object.24 Under these particular circumstances, we held that trial counsel was not ineffective for declining to object to the admission of the defendant’s prior drug convictions when his counsel’s strategy was to show that his client “had a long history of drug problems.”25
Here, as in Einglett and Henderson, we simply cannot say that trial counsel’s strategy—eliciting testimony regarding Reynolds’s history of drug-related offenses in an attempt to exculpate him from the more serious charges related to the armed robbery—was so unreasonable that no competent attorney would have pursued it under similar circumstances.26 And while we defer to the trial court’s credibility determinations and findings of fact unless they are clearly erroneous,27 no testimony or other evidence was presented at the motion-for-new-trial hearing that required findings of fact or credibility determinations. Thus, the trial court necessarily determined, as to the deficiency prong of Strickland, that trial counsel’s chosen trial strategy was deficient as a matter of law, and we owe no deference to that conclusion.28
We acknowledge that, in evaluating whether Reynolds was prejudiced by counsel’s allegedly deficient conduct under the second prong of Strickland, the trial court noted that it had considered the evidence presented at trial and judged the credibility of the witnesses. But, as our Supreme Court has explained, the failure to satisfy either prong of the Strickland test will “defeat an ineffective assistance of counsel claim.”29 And because Reynolds failed to show that his counsel’s trial strategy was deficient as a matter of law, we conclude that the trial court erred in granting Reynolds’s motion for a new trial.
For all of the foregoing reasons, we reverse.
Judgment reversed. Ellington, P. J., and McFadden, J., concur.
Decided July 8, 2015.
Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellant.
Zell & Zell, Rodney S. Zell, for appellee.
LION ANTIQUE CARS & INVESTMENTS, INC. v. TAFEL
A15A0184
775 SE2d 191
Miller, Judge
A15A0184. LION ANTIQUE CARS & INVESTMENTS, INC. v. TAFEL. (775 SE2d 191)
MILLER, Judge.
Lion Antique Cars & Investments, Inc. (“Lion”) brought suit against its former business associate, Jim Tafel, to recover two Ferrari race cars. In the course of discovery, the trial court ordered Lion to produce documents relating to its use of the race cars and found Lion in contempt after it failed to produce the documents. Lion appeals from the trial court’s denial of its motion to purge the contempt, contending that it was unable to comply with the trial court’s order. For the reasons that follow, we affirm.
“The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citation and punctuation omitted.) G. I. R. Sys. v. Lance, 228 Ga. App. 329, 331 (4) (491 SE2d 530) (1997). If there is any evidence in the record to support a trial court’s determination of contempt, the decision will be affirmed on appeal. See id.
Lion is a California corporation that buys, sells and trades vehicles, including race cars. Tafel is a Georgia resident and he served as CEO and CFO of Tafel Racing, Inc., a professional racing team.1
In December 2007, Lion entered into an agreement with Tafel Racing to purchase two Ferrari race cars and loan them to Tafel Racing for the 2008 American LeMans series. In exchange, Pierre Ehret, the German president of Lion, would drive one of the race cars during the series. Tafel Racing was required to insure both race cars and, after the conclusion of the series, it was required to purchase or sell both cars. The race cars remained the property of Lion.
Tafel breached the race car agreement by failing to obtain insurance on the cars, and Lion filed suit against Tafel and Tafel