Anderson v. the State.

• Decision Date: 20 September 2011
• Docket Number: No. A11A1385.,A11A1385.
• Citation: Anderson v. the State., 311 Ga.App. 732, 716 S.E.2d 813, 11 FCDR 3000 (Ga. App. 2011)
• Parties: ANDERSONv.The STATE.
• Court: Georgia Court of Appeals

311 Ga.App. 732

716 S.E.2d 813

11 FCDR 3000

ANDERSON

v.The STATE.

No. A11A1385.

Court of Appeals of Georgia.

Sept. 20, 2011.

Matthew Lanier Waters, Wrightsville, for appellant.Tom Durden, Dist. Atty., Melissa Leigh Poole, Asst. Dist. Atty., for appellee.

DILLARD, Judge.

Following trial, a jury convicted Eric Anderson and his co-defendantOmar Espinosa of armed robbery.Anderson appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in denying his motion for a mistrial based on the improper admission of his co-defendant's statement to police and in finding that he failed to show that he received ineffective assistance of counsel.For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,(¹) the evidence shows that at about 1:50 a.m. on September 19, 2004, Anderson walked into a local convenience store, picked up a piece of candy from one of the aisles, and approached the check-out counter.As the convenience-store clerk started to scan the candy for its sale price, Anderson pointed a pistol at her and ordered her to give him all of the money from the cash register.After the clerk complied, Anderson fled from the store, and the clerk called the police.

Shortly after the robbery occurred, a police officer patrolling the area noticed a burgundy Pontiac Grand Prix in the curbside lane adjacent to the convenience store, traveling at a curiously slow speed.As the officer approached the vehicle in his patrol car, it turned into the passing lane, increased its speed, and drove away.Only minutes later, the officer received a dispatch concerning the armed robbery at the convenience store, and based on his suspicion that the burgundy Grand Prix may have been involved, he radioed other officers to be on the lookout for that vehicle.

Within minutes, another officer spotted a vehicle matching the description provided by the patrolling officer and noticed that the vehicle had two occupants.Consequently, the officer pulled in behind the vehicle, activated his patrol car's blue lights and public address system, and ordered the driver of the vehicle to stop.However, instead of stopping, the vehicle sped away, and a high-speed chase, involving several officers, ensued.The chase ended when the suspects' vehicle crashed, but its two occupants were able to flee on foot before the pursuing officers arrived on the scene.Inside the abandoned vehicle, officers found several $1 and $5 bills and a candy wrapper.

A short time later, officers spotted Espinosa running through a residential backyard near the crash site and arrested him.Officers arrested Anderson at Espinosa's mother's home soon afterward.Both men were first taken back to the convenience store where the clerk identified Anderson as the man who robbed her.Thereafter, they were transported to the police station, and both provided statements.Anderson claimed that two men carjacked him, that one of them robbed the convenience store, and that they then forced him to attempt to elude the police.However, Espinosa volunteered that he had been the driver of the vehicle, that he had been talking with “others” for weeks about making a “quick buck,” and that they had been planning to rob a store.

Anderson and Espinosa were each indicted on one count of armed robbery.²Prior to trial, the trial court ruled that both of their statements to police following their arrests were admissible but that any comments in their respective statements that implicated the other defendant were inadmissible pursuant to Bruton v. United States.³During trial, the convenience-store clerk testified about the robbery and her identification of Anderson as the gunman.The State also introduced and played surveillance video footage from the convenience store, which showed the robbery as it occurred.In addition, several of the police officers involved testified regarding their pursuit and arrest of Anderson and Espinosa, and two of those officers further testified regarding the statements that Anderson and Espinosa made following their arrest.At the trial's conclusion, the jury found both Anderson and Espinosa guilty of armed robbery.

Subsequently, Anderson filed a motion for new trial, in which he argued, inter alia, that his trial counsel provided ineffective assistance.After holding a hearing on the matter, the trial court denied Anderson's motion in an order issued on September 1, 2009.⁴On January 22, 2010, Anderson filed a notice of appeal, which this Court dismissed as untimely.However, on February 22, 2011, the trial court granted his motion for leave to file an out-of-time appeal.This appeal follows.

1.Anderson contends that the trial court erred in denying his motion for a mistrial based on a comment made during the Stateprosecutor's opening and the testimony of two of the investigating police officers, all of which allegedly violated his Sixth Amendment right to confront witnesses under Bruton.In addressing this issue, we must first determine whether the Stateprosecutor's comments and the officers' statements violated Anderson's confrontation-clause rights and, if so, whether that error was harmless beyond a reasonable doubt.⁵

In Bruton,the Supreme Court of the United States held “that the admission of a statement of a non-testifying co-defendant which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it.”⁶Furthermore,

[w]hile a non-testifying co-defendant's statement which is redacted so that it eliminates any reference to the existence of the defendant will withstand scrutiny under Bruton so long as it is accompanied by instructions limiting its use to the case against its maker, a non-testifying co-defendant's statement which is redacted by merely replacing the defendant's name with a blank or symbol violates Bruton regardless of whether limiting instructions are given.⁷

And “statements which, despite redaction, refer directly to a person whom the jury may infer to be the defendant run afoul of the confrontation clause even where the confession is the very first item introduced at trial.”⁸

In the case sub judice, Anderson argues that the State violated the Bruton rule three different times during his trial, and therefore, the trial court should have granted his motion for a mistrial.Anderson claims that the first violation occurred during the Stateprosecutor's opening statements when he informed the jury that although they may hear a claim that the defendants were carjacked and forced to try to elude the police, the evidence would show that there were only two occupants in the vehicle that led police on the high-speed chase.Anderson's trial counsel did not object, but Espinosa's trial counsel did, which was not surprising given that the prosecutor's comment was a reference to Anderson's statement to the police.Regardless, “ Bruton is not violated if a co-defendant's statement does not incriminate the defendant on its face.”⁹Given that the comment at issue was in reference to a statement by Anderson and not his co-defendant and that it did not inculpate either defendant, the trial court correctly overruled the objection and motion for mistrial.¹⁰

Anderson further argues that the Bruton rule was violated during the testimony of two of the investigating police officers.The first instance occurred when Espinosa's trial counsel sought to clarify the testimony of the officer to whom Espinosa first made his statement.Specifically, Espinosa's trial counsel asked the officer as follows: “[Officer], earlier you testified that Mr. Espinosa spontaneously said he was planning an armed robbery.Isn't it true that he actually said he was talking with other people weeks prior about how they could make a quick buck?”The officer responded: “Yes.”The second instance occurred during the Stateprosecutor's examination of the officer to whom both defendants made their formal statements.The prosecutor asked the officer to repeat what Espinosa had told him regarding his participation in the crime.The officer responded: “He advised that he had left his house going to [a nightclub].The individual in the car with him wanted to go by the store first to obtain something to drink.”

Anderson's trial counsel objected to both of these alleged Bruton violations, and Anderson now argues that the trial court erred in overruling those objections.We agree that the testimony concerning Espinosa's statement that referenced “other people” with regard to making a “quick buck” and the “individual” with Espinosa on the night of the robbery could be considered references to a person whom the jury may infer to be Anderson.¹¹Nevertheless, pretermitting whether that testimony directly implicated Anderson and thus violated Bruton, such a violation may not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [statement] was harmless error.”¹²And here, Anderson has not shown any harm resulting from this testimony.Indeed, given the fact that the convenience-store clerk positively identified Anderson as the person who robbed her at gunpoint, that video surveillance footage from the convenience store supported the clerk's identification, and that Anderson's carjacking claim was undermined by the officer who testified that there were only two occupants in the fleeing vehicle, the evidence against Anderson was so overwhelming that the testimony regarding Espinosa's statement cannot be said to have contributed to the guilty verdict.¹³Accordingly, the trial court did not err in denying Anderson's motion for new trial on...