Anderson v. State

• Decision Date: 06 July 2016
• Docket Number: A16A1242
• Citation: 788 S.E.2d 831,337 Ga.App. 739
• Parties: Anderson v. The State.
• Court: Georgia Court of Appeals

337 Ga.App. 739

788 S.E.2d 831

Anderson

v.The State.

A16A1242

Court of Appeals of Georgia.

July 6, 2016

Raina Jeager Nadler, for Appellant.

John Richard Edwards, D. Victor Reynolds, Marietta, for Appellee.

Barnes

, Presiding Judge.

A Cobb County jury found Charles Anderson guilty of armed robbery, and the trial court sentenced him as a recidivist to life imprisonment without parole. Anderson filed a motion for new trial, as amended, which the trial court denied. On appeal, Anderson contends that the trial court erred in allowing the State to introduce evidence of his recorded telephone conversations made from jail and in sentencing him as a recidivist. Anderson further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State , 317 Ga.App. 807, 732 S.E.2d 845 (2012)

. So viewed, the evidence showed that Anderson's stepfather, Willie Plummer, lived in an apartment located on Six Flags Drive in Cobb County. Plummer lived with his wife and his grandson, Dashon Hicks.

On Sunday morning, October 28, 2012, Anderson went to Plummer's apartment and asked Plummer if he could borrow his car. Plummer agreed, and Anderson left in the borrowed car with his nephew, Hicks, after asking Hicks to ride to work with him.

Instead of driving to work, however, Anderson drove with Hicks to Fayetteville, where they picked up another relative, Shantel Washington, and her boyfriend, Kenneth Eason. Anderson then drove the group to his own apartment in Atlanta, where he retrieved a change of clothes and a bag. After Anderson got back into the car, Washington, who was now driving, drove them to Six Flags Drive near where Plummer lived and parked down the street from a Waffle House. Anderson told Hicks that they were going to the restaurant to get their “adrenaline pumping.”

Once Washington parked the car, Eason and Anderson got out and went toward the Waffle House. Eason donned a ski mask, and Anderson zipped up his hoodie over his face except for the eyes. Both men wore dark clothing.

According to witnesses inside the Waffle House, two men dressed in black with their faces covered entered the restaurant around noon when it was crowded with customers. One of the men stood guard at the front entrance while the second man approached the cash register with a handgun, demanding money. The second man then jumped over the counter and grabbed the cash from the register while pointing a gun at a waitress. The witnesses' descriptions of the two men indicated that Eason was the man who stood guard at the door while Anderson brandished the handgun and grabbed the cash from the register.

Eason and Anderson ran from the Waffle House back to the car where Washington and Hicks were waiting. Washington drove the group away from the scene. However, as they drove away, the group realized that a person in a van was following them and was recording the car's tag number. Anderson told the others that he would call Plummer and tell him that his car had been stolen.

Washington drove to Anderson's apartment, and Anderson called Plummer and told him that someone had stolen his car when it was parked outside a store. Anderson encouraged Plummer to call the police and report the theft of the car, but Plummer told Anderson that he should make the call. Anderson made several more phone calls to Plummer in an unsuccessful attempt to have him call the police and report the car stolen. Anderson also moved Plummer's car a block away from his apartment and left it there.

Concerned about his car, Plummer went to Anderson's apartment to find out what had happened. When Plummer arrived at the apartment and asked about his car, Anderson told him it was parked around the corner. Plummer went to his car and found it undamaged with the keys still in the ignition. Because Anderson claimed the car had been stolen, Plummer called 911 at that point, and an Atlanta police officer arrived, looked over the car, and released the car back to Plummer. Plummer and Hicks then drove the car back to Plummer's apartment complex on Six Flags Drive.

In the meantime, the police had identified Plummer as the owner of the car involved in the Waffle House robbery based on the license tag number that had been provided by the driver of the van who had followed the car after the robbery. The police arrived at Plummer's apartment complex around the same time that Plummer and Hicks returned there with the car. The police stopped the car and detained Plummer and Hicks.

Plummer and Hicks agreed to be interviewed at the police station. Plummer told a detective about what had transpired with respect to his car and was released after his interview. Hicks initially denied any knowledge of the robbery and told a detective that Plummer's car had been stolen. Hicks later told the detective about the robbery and identified Anderson as one of the participants.

After speaking with Hicks, the detective obtained an arrest warrant for Anderson for armed robbery, and the police arrested him early the next morning. Anderson, Washington, and Eason were jointly indicted for armed robbery. Hicks was not charged with any offenses.

At Anderson's trial,¹ Plummer and Hicks testified to events as summarized above. Hicks also testified that he had not known about the planned Waffle House robbery until they were already driving to the restaurant, denied that he had participated in the robbery or kept any of the stolen cash, and testified that Anderson told him to tell the police that Plummer's car had been stolen and not to mention Anderson's name.

Several eyewitnesses to the robbery also testified, as did the lead detective assigned to the robbery investigation. Additionally, over defense objection, the State introduced into evidence and played for the jury recorded telephone calls that Anderson made to Hicks from jail. During the recorded calls, Anderson questioned Hicks about what he had told the police and admonished Hicks for revealing Anderson's participation in the robbery.

After the State rested, Anderson elected not to testify. He did not call any defense witnesses.

Upon hearing all the evidence, the jury found Anderson guilty of armed robbery. Following the guilty verdict, the State introduced certified copies of Anderson's three prior convictions, one of which was a nolo contendere plea to armed robbery in Michigan. Based on the three certified prior felony convictions, the trial court sentenced Anderson as a recidivist under OCGA § 17–10–7 (a)

and (c) to life imprisonment without parole.

Anderson filed a motion for new trial. Anderson's was appointed new counsel who filed an amended motion, alleging that Anderson's recorded jail telephone conversations with Hicks had been improperly admitted at trial, that his recidivist sentence was improper, and that his trial counsel had rendered ineffective assistance. Following a hearing at which Anderson's trial counsel testified, the trial court denied Anderson's amended motion for new trial. This appeal followed.

1. Anderson contends that the trial court erred by allowing the State to introduce the two recorded telephone calls that he made to Hicks from jail. According to Anderson, the recorded calls were

inadmissible because they showed his bad character in that he used “street language and foul language” in the calls, and because the probative value of the calls was substantially outweighed by the danger of unfair prejudice. We disagree.

“It is well established that evidence that is relevant to an issue in the case is not rendered inadmissible simply because it incidentally puts the defendant's character at issue.” Jones v. State , 283 Ga.App. 812, 813, 642 S.E.2d 887 (2007)

. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24–4–401.² See State v. Jones , 297 Ga. 156, 159, 773 S.E.2d 170 (2015). And while “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...,” OCGA § 24–4–403, exclusion is “an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.” (Punctuation and footnote omitted.) Williams v. State , 328 Ga.App. 876, 879, 763 S.E.2d 261 (2014). Furthermore, “as a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Punctuation and footnote omitted.) Oliver v. State , 329 Ga.App. 377, 379, 765 S.E.2d 606 (2014).

We discern no abuse of discretion by the trial court in admitting the recorded jail telephone calls. During the calls, Anderson quizzed Hicks about what he told the police about the robbery, and Anderson became upset when Hicks admitted that he had given the police Anderson's name. Anderson admonished Hicks for divulging his name to the police, reminding Hicks that he had told him not to bring up Anderson's name if questioned about the robbery. Anderson also asked Hicks if he told the police that Anderson had a gun. Additionally, Anderson told Hicks that the police would put “pressure” on Hicks while interviewing him, but that the pressure should not get to Hicks because Hicks had not done anything.

Anderson's statements in the recorded telephone calls were relevant and admissible to show his consciousness of his own guilt for the armed robbery.³ See Bostic , 294 Ga. at 848 (2), 757 S.E.2d 59

(“[A]ny statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing...