Jovan Young and Jomandi Wright were jointly tried by jury on charges arising out of an armed robbery of three men. They were convicted and sentenced on eight counts. They now appeal on several grounds.
Construed in favor of the verdicts, the evidence shows that on February 10, 2002, Daniel Hennagir, Douglas Strand, and Bobby Willoughby were leaving a nightclub in Atlanta at about 3:00 or 4:00 a.m., when they were approached by a man in blue or grey who demanded in a hostile manner, “What do you got?” Two other men then appeared, one dressed all in red and the other holding a gun low, close to his knee, showing it to the victims but not pointing it at them. Simultaneously with showing the gun, one of the two said, ‘You don’t understand. We want your money.” At this point, the victims understood that it was a robbery. At trial, two of the victims identified the man in blue as Wright and the man in red as Young.
Wright then grabbed Strand’s cash and driver’s license out оf his back pocket. Next, as Hennagir attempted to protect his wallet from Wright and Young, the man with the gun struck him with the gun, which allowed Young to grab the wallet. The three men then ran. Willoughby, who testified that he was “scared to death” during the whole event, had taken his cash out, but in their haste the robbers overlooked it. The incident lasted between one and five minutes.
Police were called immediately. Within a few minutes officers saw two men in the area generally fitting the description. An officer testified that when the men saw the police, they reversed direction but were caught. Officers brought Wright and Young back to the scene, where they were identified as two of the perpetrators. The man with the gun was never apprehended. None of the stolen property was ever recovered.
1. Both appellants contend the trial court еrred by rejecting their claims under
Batson v. Kentucky,
The three-step procedure for analyzing a
Batson
challenge is well known. “The opponent of a pеremptory challenge must make a prima
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facie showing of [gender or] racial discrimination; the burden of production shifts to the proponent of the strike to give a [gender- or] race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnote omitted.)
Chandler v. State,
The State used five peremptory challenges to strike juror nos. 5, 7, and 10 (African-American females), juror no. 14 (a Caucasian female), and alternate juror no. 30 (an African-American male). The defendants jointly challenged the release of these jurors citing
Bat-son.
The State next gave what it claimed were race- and gender-neutral reasons for the challenged strikes, which, for this Court’s purposes, renders а preliminary showing of prima facie discrimination moot.
Hernandez v. New York,
The court then asked the defendants to attempt tо carry their burden of showing discriminatory intent with regard to the remaining four jurors. Following the defendants’ presentation, the court denied their remaining Batson challenges and released juror nos. 5, 7, 10, and 30. Thus, the issue presented is whether, with regard to each of the four challenged jurors, the defendants showed discriminatory intent.
(a) With regard to juror no. 5, the State explained that her father had been falsely accused of murder based on mistaken identity and her brother accused of assault with a deadly weapon. The court held that this reason was facially neutral, and we agree. The defendants countered that the current case did not include an accusation of murder and that juror no. 8, an African-American male, was not struck yet he had a stepbrother who had been accused and convicted of manslaughter. The trial court’s conclusion that the defendants did not show discriminatory intent with regard to juror no. 5 was not clearly erroneous. An issue of mistaken identity was raised in this case and the cited facts about the two jurors were significantly different.
(b) With regard to juror no. 7, the State’s only explanation for the strike was that the woman was excused because a close relative, her nephew, had been convicted of manslaughter (for an incident thаt *306 occurred while playing Russian Roulette) — a gender-neutral reason. The defendants countered that juror no. 8, a male, was not struck yet he had a stepbrother who had been convicted of manslaughter. They also argued that juror no. 9, a white male, was not struck, yet he himself had been convicted of a crime. Without further inquiring of the prosecutor, the court ruled on the challenge, but in its ruling the court incorrectly rеmembered that the State’s explanation was that the juror had been accused of a same crime charged in the present case — aggravated assault or assault with a deadly weapon — and it did not address the arguably similar situations of juror nos. 8 and 9. Based on that incorrect recollection, the court concluded that the defendants had not proven discriminatory intent.
The opponent of а strike may carry his burden of persuasion by showing that similarly situated jurors of another race or gender were not struck.
Barnes v. State,
Under these circumstances, a remand is in order. This Court has held that when a trial court does not require the State “to fully explain its use of the peremptory challenges” we will remand the case to permit the prosecutor to do so and to allow the trial court to make findings under
Batson. Chunn v. State,
Therefore, with regard to juror no. 7, we remand the case in order to permit the prosecutor to fully explain the strike and to allow the trial court to make findings under
Batson. Chunn,
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(c) With regard to juror no. 10, the State explained she wаs struck because she was under 21 years of age and she admitted to illegal underage drinking, a race- and gender-neutral reason. The defendants countered that juror no. 9, a male, admitted having been convicted of a crime, yet he was not struck. The court concluded that the reason offered by the State for striking juror no. 10 did not make sense but that it was a legitimate reason under
Pickett v. State,
(d) With regard to juror no. 30, an African-American male, the State explained that it struck him because he was diabetic, did not appear to be in total command of his faculties, believed in witchcraft, was difficult to understand, and did not appear to understand questions asked of him. The defense countered that it did not recall any comments about witchcraft, rather, the man had said that the devil makes people do things sometimes. Otherwise, the defense did not offer anything to show that the State acted in a discriminatory fashion. The court agreed with the State’s recollection that the man was “not all there.” We find no clear error in this finding.
2. Wright and Young were charged with (1) armed robbery of Hennagir “by use of a handgun,” (2) aggravated assault on Hennagir “by striking him in the head with [a] handgun,” (3) aggravated assault with a deadly weapon on Hennagir “by threatening him with a handgun,” (4) armed robbery of Strand “by use of a handgun,” (5) aggravated assault with a deadly weapon on Strand “by threatening him with a handgun,” (6) attempt to commit armed robbery of Willoughby by threatening him with a handgun, (7) aggravated assault with a deadly weapon on Willoughby “by threatening him with a handgun,” and (8) possession of a firearm during the commission of a felony. They were both found guilty and sentenced on all eight counts.
The State contends that the crime of aggravated assault with a deadly weapon, against all three victims, was completed when the third perpetrator initially displayed the gun with the intent to intimidаte. Then, according to the State, Wright and Young committed armed robbery by using a gun and committed aggravated assault on Hennagir by hitting him with the gun. Wright and Young contend that the aggravated assault charges (Counts 3, 5, and 7) *308 should have merged as a matter of law and fact into the armed robbery and attempted armed robbery charges (Counts 1, 4, and 6). We agree.
Georgia law bars conviction and punishment of all crimes that arise from the same criminal conduct and are as a matter of law or fact included in the major crime for which the defendant has been convicted.
Keener v. State,
As the State suggests, it is possible to first commit aggravated assault by frightening the victim with a weapon and immediately thereafter to commit armed robbery by proceeding to use the weapon to rob the victim. See, e.g.,
Blocker v. State,
But here, the only evidence is that the three assailants used the gun to rob the victims. There was not a separate aggravated assault before the robbery began. Compare
Blocker,
The defendants also contend that the count of aggravated assault by striking Hennagir (Count 2) merges with the armed robbery charge (Count 1) as a matter of fact because Hennagir refused to give up his money dеspite the initial display of the gun. Rather, they
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contend, it was only by striking Hennagir that Young and the gunman were able to get Hennagir’s money. For the same reasons as above, we agree. The evidence is undisputed that the robbery was not complete until the gunman struck Hennagir with the gun thereby allowing Young to take his money. The convictions for aggravated assault should have merged with the convictions for armed robbery and attеmpted armed robbery for the purpose of sentencing. See
Young,
The evidence was sufficient to support the remaining convictions of armed robbery, attempted armed robbery, and possession of a firearm during the commission of a felony.
3. Wright and Young contend that the trial court erroneously charged the jury that under Georgia law a witness can be impeached upon proof of general bad character or proof that the witness has been convicted of a crime of moral turpitude because no evidence of either was presented at trial.
The only person possibly impeached was Young. Young, the only defense witness, was 18 years old at the time of the incident. On direct examination, his attorney asked him what he was doing in midtown that night. Young said that he had gone to “Club Kaya.” On cross-examination, thе prosecutor asked him whether one had to be 21 years old to get into that club. Young replied that you do unless you know the person on security and that, on that night, the person on security who he knew had let him in.
Young argues under
Jones v. State,
“The giving of an unauthorized charge on an unavailable method of impeachment is generally harmless error. [Cits.]”
Francis v. State,
4. Wright and Young, who were represented by separate counsel, both contend that their attorneys were ineffective in similar ways.
“In order to establish ineffectiveness of trial counsel, apрellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong
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presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance.” (Citation and punctuation omitted.)
Williams v. State,
throughout the case in order to determine whether the “identified acts or omissions” overcome the presumption that counsel rendered reasonable professional assistance. Since “(there) are countless ways to provide effective assistance in any given case,” [Strickland v. Washington,466 U. S. 668 ,] 689 [(104 SC 2052, 80 LE2d 674) (1984)], unless consideration is given to counsel’s overall performance, before and at trial, it will be “all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” [Cit.]
Id. at 386 (III) (A).
(a) The defendants contend their counsel failed to file a motion to suppress and failed to properly object to the showup identification — as being impermissibly suggestive — and failed to object to the in-court identification. Failure to file a suppression motion does not constitute per se ineffective assistance of counsel.
Kimmelman, 477
U. S. at 384. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion. [Cit.]”
Richardson v. State,
Although “a one-on-one showup is inherently suggestive,” an identification produced from a showup is not necessarily inadmissible. (Citation and punctuation omitted.)
Miller v. State,
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With regard to part one of the test, “[o]n-the-scene ‘showup’ identifications, like the one here, ‘have been held not to be impermissibly suggestive but necessary due to the practicabilities inherent in such situations.’ ” (Footnote omitted.)
Watson v. State,
The two suspects were handcuffed and in separate police cars when they were returned to the scene of the crime only minutes after the robbery. The mere fact that the men were in а police car when they were identified does not taint the identifications.
Jenkins v. State,
As for the in-court identification, challenges must be made through cross-examination.
Ivey,
(b) Wright contends his counsel was ineffective by failing to object to the jury charge on impeachment during the charge conference. But his counsel made an exception to the charge as given and reserved his objeсtions to the charge, and we have considered the merits of the issue above.
(c) Wright contends his counsel was ineffective by failing to object during closing argument when the prosecutor stated that a gun is a deadly weapon. Wright cites no law in support of this claim, and we find no error.
(d) Wright contends his counsel was ineffective by failing to object during closing argument to thе State’s summary definition of attempted armed robbery. But, upon review, we find no basis for this claim. Trial counsel’s failure to object to legitimate closing argument does not constitute deficient performance. See
Mason v. State,
(e) Young contends that his counsel should have objected to the prosecutor’s closing argument when he said, “Mr. Young said... that he was at Club Kaya.... I don’t think the bars in there let you or are lenient about рeople under 21 getting in.” He argues that the information was a fact not in evidence. “As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion.” (Footnote omitted.)
Arnold v. State,
Judgments affirmed and cases remanded with direction.
Notes
At the hearing on the motion for new trial, trial counsel for Young testified that he believed that under the circumstances, a showup identification was permissible under the law and that therefore he did not see a need to file a motion to suppress.