Baskin v. State

• Decision Date: 05 May 2004
• Docket Number: No. A04A0605.,A04A0605.
• Citation: 600 S.E.2d 599,267 Ga. App. 711
• Parties: BASKIN v. The STATE.
• Court: Georgia Court of Appeals

267 Ga. App. 711

600 S.E.2d 599

267 Ga.App. 711

BASKIN v. The STATE.

No. A04A0605.

Court of Appeals of Georgia.

May 5, 2004.

Reconsideration Denied June 9, 2004.

Certiorari Denied September 27, 2004.

Herbert Adams, Jr., Atlanta, for appellant.

Paul Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

MILLER, Judge.

Convicted of armed robbery and other offenses, Charles Baskin appeals, raising several enumerations of error. We affirm, holding that the trial court did not err in rejecting his ineffective assistance of counsel claim or in denying his motion to sever the trial, that evidence supported the jury instruction as to voice identification, and that evidence sustained the verdict.

Ervin Head and Baskin were jointly indicted, tried, and convicted of armed robbery, hijacking a motor vehicle, and aggravated assault. Head appealed his conviction, which we affirmed. Head v. State, 256 Ga.App. 624, 569 S.E.2d 548 (2002). That opinion concisely sets forth the facts of this case.

Evidence presented at trial shows that two armed, masked men ran toward the victim, Johane Eugene Blalock, as he was standing outside his parked vehicle. One man carried a 9 millimeter handgun, and the other had an AK-47 assault rifle. The assailant armed with the handgun ordered the victim to lie on the ground and demanded his keys. The assailants then took the victim's money ($80), ripped his gold chain from his neck, and drove off in his car, a gray Buick LeSabre. The victim called the police, who apprehended Baskin and Head shortly before midnight in the parking lot of a nearby school. The defendants were in the process of stripping the rims from the wheels of the victim's car. Two ski masks and a 9 millimeter handgun were found on the ground within arm's reach of both men. Eighty dollars and a gold chain were found in Baskin's pocket. The victim identified Baskin as the assailant with the handgun but was unable to identify the second attacker.

Head denied any involvement in the armed robbery and carjacking. Head testified that he wanted to purchase a certain type of rims for his car and implied that Baskin offered to procure them. Head claimed that on the night the crimes occurred, he was at home playing cards with two friends, Demetrius Barnes and Robert Brown. According to Head, he received a page from Baskin, who said he had the type of rims Head wanted. Head agreed to meet Baskin at Price Middle School. Head testified that Brown left, and Head and Barnes drove to the school. Barnes testified that he parked around the corner while Head met with Baskin. Head admitted that he began taking the rims off the victim's car. According to Head, Baskin stated that he stole the vehicle and that the handgun belonged to him. However, the trial court sustained the state's hearsay objection to Head's testimony concerning the gun.

Both of Head's alibi witnesses, Brown and Barnes, testified that they were with Head that evening in Head's apartment until he received the page from Baskin.

Baskin's former girlfriend, 13-year-old Sherika Hudson, who lived in the same apartment complex as Baskin, testified that she was standing on her balcony around midnight and saw Head in the victim's car in front of Baskin's apartment. Hudson testified that she also saw Baskin enter the vehicle, after having gone upstairs to tell his mother goodbye. During the hearing on the motion for new trial, however, Hudson testified that she had fabricated her trial testimony.

Baskin's mother, Victoria Baskin, testified that on the night in question, Baskin came home around midnight and told her that he was going out with Head. Mrs. Baskin walked out onto her balcony, looked down, and saw Head standing beside a gray car.

She also saw Barnes sitting in the car, and she watched her son enter the vehicle.

(Footnote omitted.) Id. at 624-625, 569 S.E.2d 548.

The jury found both men guilty of armed robbery, hijacking a motor vehicle, and aggravated assault. Following the denial of his motion for new trial, Baskin appeals.

1. Baskin's first two enumerations of error claim that he received ineffective assistance of trial counsel, a claim the trial court rejected in denying Baskin's motion for new trial. To prove ineffective assistance, Baskin bore the burden of showing (1) his attorney's representation in specified instances fell below an objective standard of reasonableness and (2) the deficient performance prejudiced Baskin. Trammell v. State, 262 Ga.App. 786, 787(2), 586 S.E.2d 693 (2003). "The trial court's determination with respect to effective assistance of counsel will be affirmed unless the trial court's findings are clearly erroneous." (Citation and punctuation omitted.) Id. at 787(2)(a), 586 S.E.2d 693.

(a) Advice to Baskin regarding guilty plea offer. Baskin first claims that his attorney failed to provide adequate advice and counsel on whether he should accept or reject the State's plea offer. Evidence showed that trial counsel communicated the plea offer of ten years imprisonment to Baskin and discussed with him the consequences of accepting or rejecting the plea offer. Adamantly maintaining his innocence, Baskin chose to reject the plea offer and to go to trial. Baskin now complains that the State presented no affirmative evidence that trial counsel encouraged Baskin to accept the offer or otherwise gave his opinion as to whether to accept the offer. Baskin argues that in light of the strong evidence incriminating him, such advice was required to render adequate representation.

Baskin's arguments fail for at least two reasons. First, Baskin misapprehends the burden of proof in establishing ineffective assistance. "He, not the State, must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct." (Citation and punctuation omitted.) Morgan v. State, 275 Ga. 222, 227(10), 564 S.E.2d 192 (2002). Thus, the absence of any testimony in the record regarding whether trial counsel advised or encouraged Baskin to accept the plea offer is a failure of proof that lies at the feet of Baskin, not at the feet of the State. Baskin bore the burden of showing that the advice was not given, a burden he failed to carry when he did not ask trial counsel during the motion for new trial hearing whether such occurred.

Second, even if the evidence affirmatively showed that trial counsel did not give such encouragement or advice to Baskin, the Supreme Court of Georgia has explained that "[o]bjective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him." Lloyd v. State, 258 Ga. 645, 648(2)(a), 373 S.E.2d 1 (1988). The Court has not held that in addition, defense counsel is required to give his opinion as to whether the defendant should accept the offer. Indeed, "[a]fter being provided informed legal advice, it is the defendant, not the attorney, who makes the ultimate decision about whether or not to plead guilty. [Cit.]" Johnson v. State, 276 Ga. 57, 60(4)(a), 573 S.E.2d 362 (2002). Thus, any opinion from trial counsel about the ultimate wisdom of accepting a guilty plea offer might be helpful to the defendant but certainly is not required.

Evidence supported the trial court's finding of fact that Baskin's trial counsel informed him of the plea offer and explained the consequences of accepting or rejecting the offer. See Trammell, supra, 262 Ga.App. at 787(2)(a), 586 S.E.2d 693 ("`The trial court's determination that counsel did not fail to communicate a plea bargain offer to appellant was a matter of credibility of witnesses, and we are not authorized to disturb it.' [Cit.]"). Accordingly, the trial court did not clearly err in ruling against Baskin on this claim.

(b) Failure to obtain certified convictions of victim. Baskin complains that his attorney failed to obtain certified copies of the victim's prior conviction. Baskin argues that without such copies, his trial counsel was not able to adequately impeach the victim. However, Baskin failed to procure such certified copies and to introduce them at his motion for new trial hearing, precluding a showing of prejudice, i.e., that the use of the conviction would have made a difference in the outcome of his trial. Cf. Woods v. State, 255 Ga.App. 265, 267(1), 564 S.E.2d 853 (2002) (failure to produce certified copies precluded a showing of clear prejudice). Indeed, trial counsel testified at that hearing that in his opinion, the conviction was not material enough to justify obtaining the certified copies. Apparently, appellate counsel came to the same conclusion. Evidence supported the trial court's ruling that such did not constitute ineffective assistance.

(c) Failure to reserve objections to the jury charge. Baskin contends that his trial counsel's failure to reserve objections to the jury charge prejudiced him. The only charge Baskin complains of on appeal is the court's charge concerning voice identification, which as discussed in Division 4 below was properly given. Failure to make futile objections does not constitute ineffective assistance. Carswell v. State, 263 Ga.App. 833, 836(6)(a), 589 S.E.2d 605 (2003).

(d) Commenting on Baskin's choice not to testify. Baskin complains that during closing argument, his trial counsel commented on his decision not to testify. Setting aside the obvious strategical nature of a decision to make such a comment, we note that this alleged error of counsel was not raised below when Baskin presented to the trial court his motion, evidence, and argument on ineffective assistance of counsel. The failure to raise this specific ground below is a procedural bar to raising that issue now. Doss v. State, 264 Ga.App. 205, 207(2), 590 S.E.2d 208 (2003); see Scieszka v. State, 259 Ga.App. 486,...