Walls v. StateWalls v. State
- Reporters:
- ,
- Before:
- Eldridge
The defendant, Dwayne Walls, appeals from the denial of his motion for new trial following his conviction for armed robbery and possession of a firearm during the commission of a felony. We affirm.
The facts, viewed in the light most favorable to the verdict, 1 are as follows: at approximately 3:00 a.m. on January 26, 1997, a sales clerk was working alone at Lil’ Champ convenience store in Ogeechee, Chatham County. The defendant entered the store, picked up a bag of candy, and walked to the cash register. He leaned forward, as if looking at the lottery ticket display. When the clerk leaned forward to assist the defendant, he grabbed her vest and pulled out a gun from under his clothing. At this point, the defendant’s face was approximately one foot away from the clerk’s face. The defendant shoved the gun into the clerk’s face, ordered her to give him the money from the cash register, then pushed her backwards. She pulled out the register drawer, set it on the counter, and let him take the money. The defendant left the store, and the clerk immediately activated the alarm. Another man and his wife came into the store minutes later; the man stayed with the clerk while his wife called the police. Officers Belinda Walker and David Schulz of the Chatham County Police Department arrived within minutes; Officer Walker interviewed the clerk, who was able to give a general description of the robber.
Two days later, on January 28, 1997, Officer R. Berger of the Port Wentworth Police Department stopped a car driven by Tommy Glenn Thomas for driving on the wrong side of the road and DUI. The defendant was a passenger in the car. Officer Berger arrested Thomas and transported him to the county detention center, but he did not detain the defendant.
On the way to the detention center, Thomas offered to “make a deal” with the police in
Four days after the robbery, Officer Walker presented a photo-spread to the clerk, who identified the defendant as the man who robbed the store. Both the clerk and the detective testified that the clerk was certain that the defendant was the robber.
The defendant was indicted for armed robbery (
1. In his first enumeration of error, the defendant contends that the trial court erred in refusing to charge the jury regarding the prosecution’s alleged grant of immunity or leniency towards witness Tommy Glenn Thomas in exchange for his testimony in this case. This contention has no merit.
Following his January 28,1997 arrest for DUI, Thomas moved to Louisiana. He failed to answer the Chatham County charges and an arrest warrant was issued. In this case, the trial court determined that Thomas was a material witness and petitioned the Louisiana court to compel Thomas to appear as a witness. See
Under the State’s petition and the Louisiana court’s order, Thomas could not be arrested under the previously issued warrant during this trip to Georgia. There was no promise by the prosecution that, as a result of Thomas’ testimony in this case, the State would dismiss pending criminal charges against Thomas; would grant him leniency; would accept a more favorable plea bargain; or would not arrest Thomas during any subsequent trip to Georgia. As such, the requested charge was not supported by any facts or otherwise adjusted to the evidence, and there was no error in the trial court’s refusal to give such charge. Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33) (1997); Kelly v. State, 212 Ga. App. 278, 282 (3) (442 SE2d 462) (1994); Pace v. State, 201 Ga. App. 475, 476 (2) (411 SE2d 361) (1991).
2. The defendant also contends that the trial court erred in refusing to give two charges based upon
However, whether or not Thomas was, in fact, under the influence of alcohol
as a matter of law
is not an issue in this case. The only relevance of Thomas’ alleged intoxication goes to the weight and credibility of his testimony. The jury received comprehensive charges on their responsibilities regarding such determination. See
3. In addition, there was no error in the trial court’s refusal to give requested jury charge no. 9, which stated that it is unlawful to drive a car when one has an alcohol concentration of .10 percent or greater.
4. The defendant also asserts that the evidence was insufficient to support the verdict and specifically attacks the credibility of the testimony given by the store clerk and by Thomas. However, the weight of evidence and the credibility of witnesses are matters for the jury’s determination; this Court is concerned only with the sufficiency of the evidence.
5. Finally, the defendant contends that the trial counsel’s decision not to call an alibi witness amounted to ineffective assistance of counsel, thereby entitling him to a new trial under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). How ever, there is no merit to this contention, as the transcript reveals that the defendant, himself, decided not to call the witness.
Following the close of the State’s case, defense counsel notified the court that an alibi witness had come forward, but counsel expressed concerns that the wdtness’ testimony might be impeached or contradictory to other defense evidence. Counsel then stated on the record that he had “gone over all these strategic concerns with my client [the defendant] and we have talked it over, and he has elected not to call an alibi witness.” (Emphasis supplied.) The trial court then put the defendant on the stand under oath and confirmed that it was the defendant’s decision not to call the alibi witness. Accordingly, the defendant’s assertion of ineffective assistance of counsel fails.
Judgment affirmed.
Blackburn, J., and Senior Appellate Judge Harold R. Banke concur..
Notes
Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).
Further, even if Thomas had been convicted of drunken driving, it is not a crime of moral turpitude, and therefore, such misdemeanor conviction could not be used for impeachment.