661 S.E.2d 221 | Ga. Ct. App. | 2008
In a twelve-count indictment, Cedric Wilson was charged with armed robbery (Counts 1 and 2), aggravated assault (Counts 3 and 4), kidnapping (Counts 5 and 6), burglary (Count 7), entering an automobile (Count 8), two weapons offenses (Counts 9 and 10), and two misdemeanor battery offenses (Counts 11 and 12), all arising from a home invasion involving two victims and a second perpetrator. The state nolle prossed Count 9, and a jury found Wilson guilty on all remaining counts. Wilson was sentenced as a recidivist
1. Wilson challenges the sufficiency of the evidence to support his conviction on Count 1, armed robbery. In his brief, however, Wilson makes this argument with regard to victim Jackson, who is the subject of Count 2. Victim Crawford is the subject of Count 1, and Wilson does not contend that the evidence is insufficient to support his conviction of the armed robbery of Crawford. Accordingly, we address only the sufficiency of the evidence as to Count 2, the armed robbery of victim Jackson.
Viewed in the light most favorable to the verdict, the evidence shows that on the morning of March 8, 2005, Jackson, who was sitting in his den, noticed a strange Grand Am pull into his driveway. He got up and went to the door, by which time a short, stocky woman was standing in the doorway. Jackson’s door was unlocked, and two men entered, pointing guns at him. The perpetrators were not wearing masks, and Jackson could see their faces. They pushed him onto the floor, pulled him into his kitchen, bound his arms and legs, hit him, kicked him, and beat him in the head. The perpetrators said that they were looking for a man named “Cadillac”; Jackson told them that he did not know anyone by that name and that the men had the wrong house. They ransacked Jackson’s house for nearly an hour until his friend Crawford arrived.
Jackson testified that after the perpetrators left, he freed himself and Crawford and went to call the police, but the perpetrators had taken his cordless phone. They also took his .45 caliber pistol and some watches from his bedroom. Jackson identified Wilson as the taller perpetrator in a pretrial photo lineup and at trial.
Pursuant to OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” In Count 2, Wilson was indicted for committing armed robbery by taking “a 25 caliber handgun” from Jackson’s “immediate presence” by the use of a handgun. Wilson argues that his conviction for this armed robbery cannot stand for two reasons: (a) Jackson was not aware that his handgun was taken until after the police arrived, and (b) a fatal variance exists between the evidence adduced at trial, which showed that the stolen weapon was a .45 caliber gun, and the indictment, which described the weapon as a .25 caliber handgun. We disagree with Wilson’s assertions.
(a) “It has long been recognized . . . that when perpetrators forcibly cause the victim to be away from the immediate presence of the property at the time it is stolen, the offense of armed robbery can
This element of awareness was absent in the cases cited by Wilson; as such, the cases are distinguishable. For example, in McNearney v. State,
(b) “The distinction between the [caliber of] weaponry in this case does not constitute a fatal variance between the allegata and the probata.”
Not all differences between an indictment and proof constitute fatal variances. An accused must be definitely informed of the charges against him so that he may present a defense, and he must be protected against a second prosecution for the same offense. If a variance does not present these dangers, it is not fatal.13
In this case, it does not appear that Wilson was misled or prejudiced by the distinction between the caliber of the weapon as alleged and proved.
2. Wilson next contends that the trial court erred in sustaining the state’s objection when defense counsel attempted to refresh Jackson’s recollection with a police report. This alleged error has not been preserved for appellate review. After the court sustained the objection, counsel thanked the court and did not except to the ruling. “[H]aving failed to make any exception to this ruling, [Wilson] has waived his right to object to the ruling on appeal.”
3. Wilson argues that the trial court abused its discretion in ruling that evidence of his prior crimes would be admissible in the event he chose to testify. Once Wilson decided to testify, the state announced its intention to impeach him with certified copies of three
4. Finally, Wilson argues that the trial court erred in denying his motion for new trial on the basis of ineffective assistance of counsel. We disagree.
In order to prove ineffective assistance of counsel, Wilson must demonstrate both that his counsel’s performance was deficient and that the alleged deficiency prejudiced him.
(a) First, Wilson argues that trial counsel was ineffective when she acquiesced in the trial court’s refusal to allow her to refresh Jackson’s recollection with a police report. The trial transcript shows that counsel asked Jackson whether he told the first officer who responded to the scene about the woman standing at his door. Jackson replied that he did not recall telling the officer that. Counsel sought to refresh Jackson’s recollection with verbal statements incorporated into the report. The state objected that Jackson’s memory could not be refreshed from a third party’s records. The trial court sustained the objection.
Wilson is correct that “any document may be used to refresh the recollection of a witness, and the document need not have been
(b) Wilson also claims that trial counsel was ineffective when she did not except to the trial court’s decision to allow Wilson’s prior convictions in evidence for the purpose of impeachment. The record shows that counsel elected to elicit this evidence from Wilson as soon as he took the stand, as shown by the following colloquy:
Q. Mr. Wilson, you have had some problems with the law before, haven’t you?
A. Yes, ma’am.
Q. Tell me . . . about any convictions you got in the State of Alabama.
A. When I was young, about nineteen or twenty, I had some charges of breaking into cars and convenience stores.
Q. Anything else?
A. I got a drug charge in ‘96.
Counsel testified at the new trial hearing that she had determined that the state would be able to carry its burden of proof on this issue; so counsel intentionally “bit the bullet and dealt with it.” “Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”
Judgment affirmed.
OCGA § 17-10-7 (a), (c).
(Citations and punctuation omitted.) Lester v. State, 267 Ga. App. 795, 798 (1) (600 SE2d 787) (2004). Accord Allen v. State, 286 Ga. App. 82, 84 (1) (b) (648 SE2d 677) (2007).
(Citations and punctuation omitted.) Lester, supra. See Welch v. State, 235 Ga. 243, 245 (1) (219 SE2d 151) (1975).
See Culver v. State, 230 Ga. App. 224, 231 (6) (496 SE2d 292) (1998).
210 Ga. App. 582 (436 SE2d 585) (1993).
Id. Cf. Culver, supra.
226 Ga. App. 506 (486 SE2d 717) (1997).
Id. at 507.
Grant, supra; McNearney, supra; accord Smith v. State, 281 Ga. App. 91, 92-93 (1) (635 SE2d 385) (2006) (store manager unaware that defendant robbed back office of deposit bag until after defendant left store).
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Lawson v. State, 278 Ga. App. 852, 853 (2) (630 SE2d 131) (2006) (knife and box cutter).
(Citations omitted.) Brawner v. State, 81 Ga. App. 163, 166 (3) (58 SE2d 238) (1950) (shotgun and pistol); accord Hesterlee v. State, 210 Ga. App. 330, 332 (1) (436 SE2d 32) (1993) (“error in the model of the gun used is not sufficient to constitute a fatal variance”); Jackson v. State, 158 Ga. App. 702 (3) (282 SE2d 181) (1981) (pistol and shotgun).
(Punctuation and footnote omitted.) Lawson, supra. See DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969).
See Hesterlee, supra.
(Footnote omitted.) Freeman v. State, 257 Ga. App. 232, 234 (2) (570 SE2d 669) (2002).
Wilson’s trial began on January 18, 2006. The drug conviction was actually entered in 1997; thus, it was not more than ten years old at the time of this trial.
OCGA § 24-9-84.1 (b). See Hinton v. State, 280 Ga. 811, 818 (7) (631 SE2d 365) (2006); Tate v. State, 289 Ga. App. 479 (657 SE2d 531) (2008).
(Citation and punctuation omitted.) Young v. State, 217 Ga. App. 575, 576 (2) (458 SE2d 391) (1995).
Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
(Citations omitted.) Hester v. State, 287 Ga. App. 434, 439 (3) (b) (651 SE2d 538) (2007). See OCGA § 24-9-69.
(Citations omitted.) Miller v. State, 275 Ga. 32, 36 (3) (561 SE2d 810) (2002).
Spear v. State, 271 Ga. App. 845, 846-847 (2) (610 SE2d 642) (2005). See generally Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).
(Citation and footnote omitted.) Terrell v. State, 276 Ga. App. 102, 104 (2) (622 SE2d 434) (2005).
Collins v. State, 276 Ga. 726, 728 (2) (583 SE2d 26) (2003). See also Rose v. State, 258 Ga. App. 232, 234-235 (2) (a) (573 SE2d 465) (2002) (counsel’s decision to “beat the State to the punch” by telling jury about defendant’s prior drug conviction was a reasonable strategic decision); Crawford v. State, 252 Ga. App. 722, 725 (3) (556 SE2d 888) (2001) (counsel’s fear that talkative defendant would “open the door” for prosecution provided reasonable strategic decision to put defendant’s past crimes into evidence on direct examination).