Alexander v. State

• Decision Date: 05 April 1988
• Docket Number: No. 76029,76029
• Parties: ALEXANDER v. The STATE.
• Court: Georgia Court of Appeals

Page 550

368 S.E.2d 550

186 Ga.App. 787

ALEXANDER v. The STATE.

No. 76029.

Court of Appeals of Georgia.

April 5, 1988.

Gale W. Mull, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, John M. Turner, Benjamin H. Oehlert III, Asst. Dist. Attys., for appellee.

BIRDSONG, Chief Judge.

David Alexander, appellant, brings this appeal from his conviction for the offenses of financial transaction card theft (OCGA § 16-9-31) and forgery (OCGA § 16-9-1). Alexander was indicted jointly with Angela Risner for both offenses. Risner had entered pleas of guilty to these offenses and testified against Alexander, without any agreement with the prosecution for her testimony. Risner stated that she and Alexander worked for the same employer and became friends. Eventually they decided to move into the same apartment and live together. Alexander denied sexual involvement, but Risner said she was in love with Alexander. Risner testified that Alexander came home one day with a Visa credit card belonging to Polly E. Hall. Alexander told her he had "found" it. The following day Risner took the card, went to the Roswell Road K-Mart and purchased a stereo. Risner stated that Alexander "said something about he wanted a new TV set so we just took the card and went back." Risner testified that Alexander picked out the TV set he wanted and was standing beside her when she signed Polly E. Hall's name to the sales slip, and used the Visa card to charge the purchase to Hall. They took the TV set home to their apartment. Other purchases were charged to the credit card and an investigator had no difficulty finding the address used by Alexander and Risner and recovering the goods obtained. The K-Mart employee who made the sale of the TV set viewed a photo lineup and selected out of it the photographs of Alexander and Risner.

Alexander denied being present at the time of the forgery and has no plausible explanation of how the sales clerk identified him, except that he was in the store and was on crutches. However, it was pointed out to him that the photographs used in the lineup did not show any crutches. Neither does Alexander have any "idea or recollection where the [credit] card came from." He testified that his "financial status is not to be questioned," for he had over $500 in his personal checking account and several thousand dollars in a savings account. The record shows that he advised the court "he was not able to hire a lawyer" and the judge appointed the public defender to represent him.

The versions of these events by Alexander and Risner are in conflict. The jury elected to accept the testimony of Risner. Alexander brings this appeal from the jury verdict of guilty. Held:

1. Appellant contends the verdict and judgment of guilty on both counts are contrary to the evidence and the law, and strongly against the weight of the evidence. Construing the evidence in favor of the verdict reached by the jury, as an appellate court is required to do ( Rutledge v. State, 245 Ga. 768, 769, 267 S.E.2d 199 (1980)), we find the evidence sufficient to enable any rational trier of facts to find the existence of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.C. 2781, 61 L.Ed.2d 560 (1979).

2. Ineffective assistance of counsel is urged on appeal. Appellate counsel argues that "[w]itnesses were clearly available who could have been compelled to shed the light of truth upon the prosecution of David Alexander." The accused's counsel, at trial, foresaw the coming events and spread upon the record his representation and invited the court's inquiry into the adequacy of counsel's defense of the accused. Alexander was asked if he had "enough time to meet and discuss this case" with his counsel, and responded: "Yes." Counsel also asked Alexander if he "had any witnesses" he would get subpoenaed, but Alexander advised the court: "No additional witnesses I can think of right now other than my father and he is in court today." Counsel asked if Alexander wanted to make any statement concerning his representation, and whether they had sufficient discussion of the case. Alexander had no statement to make to the court and was satisfied with the amount of time with counsel. The trial court also clarified the record to show appellant's claim of indigency and counsel was appointed on November 7. Trial was set for November 17, but counsel advised the court that Alexander had told him of several witnesses he wanted subpoenaed and the court directed counsel to obtain the subpoenas. After the subpoenas were obtained from the clerk, Alexander decided "he didn't want to subpoena such witnesses after all." The court ascertained that the subpoenas were still "in hand," but counsel was advised by his client he had no wish to call additional witnesses. The court was unable to get a jury panel that day and postponed the trial for one more day. Trial was held on November 19, 1986. On appeal, appellate counsel avers this was "a sad commentary on the representation provided" appellant at trial, and "[w]itnesses were clearly available" who could have "shed the light of truth" upon these offenses. The record does not support counsel's claims but establishes sufficient time, opportunity, and offer of assistance by the court and counsel to obtain witnesses, which offer was declined by appellant, in court.

"The accepted standard regarding ineffective assistance of counsel is 'not errorless counsel and not counsel judged ineffective by hindsight, but counsel ... rendering reasonably effective assistance.' " Pugh v. State, 250 Ga. 668, 670, 300 S.E.2d 504 (1983). " 'The bench mark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " Ford v. State, 255 Ga. 81, 85, 335 S.E.2d 567 (1985). To prevail on a claim of ineffectiveness, a convicted accused must show (1) counsel's performance was deficient, i.e., was not reasonable under the circumstances, and (2) that this "deficient performance prejudiced the defense," i.e., that there is a reasonable probability, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.C. 2052, 80 L.Ed.2d 674 (1984). The record before us shows accused's defense counsel was aware that after the jury finished trying his accused, the accused would start trying him. Counsel attempted to forestall such a claim by airing any allegation of ineffectiveness before trial and before the judge. It cannot be said here that counsel failed to function in any meaningful sense as the State's adversary ( United States v. Cronic, 466 U.S. 648, 104 S.C. 2039, 80 L.Ed.2d 657 (1984)) or that he failed to provide appellant with the opportunity to support his allegation of ineffectiveness before trial. The record does not support appellate counsel's claim of ineffectiveness of the trial defense counsel. Cook v. State, 255 Ga. 565, 579, 340 S.E.2d 843 (1986); Pearson v. State, 182 Ga.App. 239, 355 S.E.2d 470 (1987).

3. It is alleged that the trial court erred in charging the jury upon the issue of conspiracy. We find no error. Because the evidence showed the actual forgery of the sales slip was done by Risner, presumably because the fraudulent credit card was in the name of a woman, the trial court charged on parties to the offense (OCGA § 16-2-20) and conspiracy (OCGA § 16-4-8). Alexander and Risner were jointly indicted for these offenses, although not charged with the offense of conspiracy. Because the evidence tended to show the...