Amaechi v. State
| Decision Date | 13 March 2002 |
| Docket Number | No. A01A2489., No. A01A2488 |
| Citation | 254 Ga. App. 490,564 S.E.2d 22 |
| Court | Georgia Court of Appeals |
| Parties | AMAECHI v. The STATE (Two Cases). |
OPINION TEXT STARTS HERE
Stepp & Randazzo, Glynn R. Stepp, for appellant.
Collins C. Amaechi, pro se.
Daniel J. Porter, Dist. Atty., Gregory D. McKeithen, Asst. Dist. Atty., for appellee.
A Gwinnett County jury found Collins Amaechi guilty of robbery by sudden snatching. On appeal, Amaechi claims the trial court's erroneous instructions effectively prevented the jury from considering the lesser offense of theft by taking. He also claims that he received ineffective assistance of counsel and that the evidence was insufficient to support his conviction. For reasons which follow, we affirm.
Viewed favorably to the verdict, the record shows that on the afternoon of December 23, 1999, Benjamin Lamkin was playing basketball with a friend, Mark Morales, outside his home. Amaechi drove up in a black Honda Civic. Lamkin and Amaechi lived in the same neighborhood, and the two had been acquainted for over a year. Amaechi asked to look at Lamkin's necklace. Standing by the car and holding the necklace, Lamkin held it out past the open driver's side window so that Amaechi could examine it. Amaechi grabbed the necklace and put the car in gear. Lamkin stepped back from the moving car because he was afraid that it would run over his foot and released his grip on the necklace. Amaechi then drove away while Lamkin ran after the car, yelling for Amaechi to return his necklace, but Amaechi accelerated down the street. Lamkin spoke with Amaechi over the telephone several times, demanding that he return the necklace, but Amaechi feigned ignorance. Lamkin's mother also contacted Amaechi, and he promised to return the necklace but failed to do so. Amaechi finally told Lamkin that he would never get his necklace back.
1. Amaechi claims the evidence was insufficient to support his conviction. We disagree. The evidence is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y sudden snatching." OCGA § 16-8-40(a)(3).
The testimony of Lamkin shows that Amaechi took the necklace from him by force. "Force is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession." (Citation omitted.) Westmoreland v. State, 245 Ga.App. 482, 484(1), 538 S.E.2d 119 (2000). Amaechi claims other evidence shows that Lamkin handed him the necklace voluntarily. The jury was entitled to believe Lamkin's testimony even if it was inconsistent with other testimony given at trial. See Royal v. State, 217 Ga.App. 459, 460(1), 458 S.E.2d 366 (1995). Lamkin's testimony was direct evidence of the crime, see Davis v. State, 266 Ga. 801, 803-804(7), 471 S.E.2d 191 (1996), and Amaechi's argument that the evidence presented by the State amounted to no more than conflicting circumstantial evidence is baseless.
2. Amaechi next contends that the trial court erred by instructing the jury that the lesser offense of theft by taking could not be considered absent a unanimous acquittal on the indicted offense of robbery. The requirement of a unanimous acquittal may impermissibly preclude the jury from considering a lesser included offense. Cantrell v. State, 266 Ga. 700, 702, 469 S.E.2d 660 (1996). But the instruction given by the trial court, while not consistent with the wording favored by our Supreme Court,1 is not erroneous. The trial court instructed the jury that:
[I]f you, the jury, should find and believe beyond a reasonable doubt that the defendant did ... commit the offense of robbery by sudden snatching, ... then you are authorized to find him guilty.... If you do not believe he is guilty of the offense as alleged ..., if you have any reasonable doubt as to his guilt, it is your duty to acquit him. In this particular case, if you find that the defendant did not commit the offense of robbery by sudden snatching as has been alleged, you do have the option of considering whether or not the State has proven beyond a reasonable doubt that the defendant committed the offense of theft by taking.
Our Supreme Court, in Camphor v. State, 272 Ga. 408, 414(6)(d), 529 S.E.2d 121 (2000), found a similar charge ("Should you find the defendant not guilty of the crime of burglary, you would be authorized to consider ... the lesser offense of criminal trespass"), did not warrant a reversal because the instruction did not require that the jury reach a unanimous verdict on the indicted offense before considering the lesser included offense. The court distinguished Kunselman v. State, 232 Ga.App. 323, 501 S.E.2d 834 (1998), upon which Amaechi relies, because the trial court in Kunselman charged the jury that they could consider the lesser included offense "if and only if" they found the defendant not guilty on the indicted offense. See also Arnold v. State, 249 Ga.App. 156, 162-163(5), 545 S.E.2d 312 (2001). Accordingly, while the charge given by the trial court is not preferred, it was not erroneous.
3. Amaechi claims his trial counsel provided ineffective assistance of counsel by (a) presenting mutually exclusive and inconsistent defenses, (b) failing to request that the jury be charged on impeachment, (c) failing to request that the trial court charge on identity, (d) failing to object to the trial court's charge addressing when the jury could consider the lesser included offense of theft by taking, and (e) failing to object to the testimony of the investigating officer that he "substantiated" the case against Amaechi. Although we will consider each claim in turn, we find they have no merit.
In order to establish ineffectiveness of trial counsel under Strickland v. Washington,[466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) Amaechi] must show both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Furthermore, there is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel's actions are presumed strategic. The trial court's determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.
(Footnotes omitted.) Jackson v. State, 243 Ga.App. 289, 291(3), 531 S.E.2d 747 (2000).
(a) Amaechi claims that his trial counsel was ineffective because he presented a mutually exclusive and inconsistent defense. We disagree. Amaechi testified at trial that he was in Mississippi at the time of the theft. His trial counsel also inquired into a number of things on cross-examination of the State's witnesses, such as the value of the necklace and whether the necklace was actually "snatched" or taken in some other way, with the purpose of establishing the lesser included offense of theft by taking as an option for the jury. This was a valid strategy. We do not agree that counsel with an alibi defense must fail to pursue, through thorough cross-examination, a weakness in the State's case if it appears the crime charged exceeds the acts shown. It could be true both that Amaechi was in Mississippi and that the State failed to prove the elements of its case.
Amaechi's reliance on Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990), is misplaced. In Ross, the defendant was represented by two attorneys each actively pursuing his own theory of defense, one defense being based on mental illness, the other on alibi. The attorneys even gave contradictory closing arguments. Id., at 314, 393 S.E.2d 244. This is qualitatively different from trial counsel's approach here.
(b) Amaechi argues that trial counsel rendered ineffective assistance by failing to...
To continue reading
Request your trial
-
Collier v. State, A03A1728.
...16. (Citation and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122(2), 453 S.E.2d 443 (1995). 17. Amaechi v. State, 254 Ga.App. 490, 493(3), 564 S.E.2d 22 (2002). 18. Berger v. United States, 295 U.S. 78, 88(2), 55 S.Ct. 629, 79 L.Ed. 1314 (1935). 19. Id. 20. Id. 21. Id. 22. Se......
-
Lowery v. State
...an ultimate fact, because to do so would invade the province of the jury." (Citation and punctuation omitted.) Amaechi v. State, 254 Ga.App. 490, 494(3)(e), 564 S.E.2d 22 (2002). Specifically, the investigator testified that there was "no doubt in [his] mind" and he believed "[w]ith all [hi......
-
Zepp v. State, A05A1538.
...investigator about whether he determined that probable cause existed to obtain an arrest warrant for Zepp. See Amaechi v. State, 254 Ga.App. 490, 494(3)(e), 564 S.E.2d 22 (2002). The complained of testimony described details related to the officer's investigation, the implications of findin......
-
Nava v. State
...an ultimate fact, because to do so would invade the province of the jury." (Citation and punctuation omitted.) Amaechi v. State, 254 Ga.App. 490, 494(3)(e), 564 S.E.2d 22 (2002). And Nava's trial attorney could not recall any reason she failed to object. But even assuming, without deciding,......