Biggins v. State, A13A0170.

• Decision Date: 17 June 2013
• Docket Number: No. A13A0170.,A13A0170.
• Citation: 322 Ga.App. 286,744 S.E.2d 811
• Parties: BIGGINS v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 286

744 S.E.2d 811

BIGGINS

v.The STATE.

No. A13A0170.

Court of Appeals of Georgia.

June 17, 2013.

Laura Grace Hastay, Savannah, for appellant.

Larry Chisolm, Dist. Atty., Melanie Higgins, David E. Perry, Margaret Heap, Asst. Dist. Attys., for appellee.

RAY, Judge.

Raheen Jamal Biggins appeals from his conviction for armed robbery, OCGA § 16–8–41, arguing that the evidence was insufficient to support the verdict,¹ that the trial court erred in failing to remedy an alleged Brady violation, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that the victim, Herlynda Castro, was working as a paid confidential informant for the Chatham–Savannah Counter Narcotics Team (CNT), a law enforcement unit that sets up undercover purchases of illegal drugs. Castro arranged to purchase crack cocaine at a park near a middle school, where the purchase would be under surveillance by CNT agents on the scene and via an audio recording device on Castro's person as well as an open line on her cell phone. The drug dealers approached Castro at the park, and she got into their car. After driving a short distance, the front seat passenger, Biggins, demanded money from her, pulled out a gun, and threatened to shoot her in the face. Castro gave $450 to the back seat passenger, Andre Heyward. Although Castro testified that she snatched the money back from Heyward when she realized the men were not going to give her the drugs, after Biggins threatened to shoot her in the face, she gave the money to him. Castro then got out of the car and walked away.

Todd Desautels, a CNT agent, testified that while surveilling the park, he saw the drug dealers' car and identified Biggins as the front seat passenger. After Castro was robbed, Desautels and other officers pursued the vehicle in which Biggins was riding, blocked it, and approached it while wearing black Kevlar vests emblazoned with the word “Police.” Desautels approached Biggins' window with his gun drawn and demanded that Biggins “show me his hands,” but Biggins instead began reaching toward his foot. Desautels punched the windshield to get Biggins' attention and Biggins then put his hands up. Another agent used a baton to break the driver's side window, but the driver backed the car up and fled, with the agents in pursuit. Agents used a “pursuit intervention technique,” or PIT, maneuver to stop the vehicle, and the vehicle flipped sideways and rolled over, coming to a stop. As Desautels approached the vehicle, he saw Biggins crawl out an open window and drop some money. Desautels ordered Biggins to “stay on the ground.” When Biggins disobeyed and attempted to push himself off the ground, Desautels arrested him.

Jason Parrish, an officer with the CNT at the time of the incident who was at the scene of the arrest, testified that agents found $450 on the ground. Biggins told him that it was his money. Parrish testified that when he compared Biggins' money to photocopies of the cash agents gave Castro to make the drug purchase, “it was the same money that we gave to the CI,” that is, to Castro as the confidential informant.

1. As an initial matter, we address the deficiencies in Biggins' brief, which contains compound enumerations of error, as well as assertions within those enumerations that are not supported by argument or by citation to authority or to the record, in contravention of Court of Appeals Rule 25(c). We also note that Biggins has failed to include a statement of the method by which each alleged error was preserved for consideration, as required by Rule 25(a)(1), and that he has failed to provide an applicable standard of review for each issue presented, as required by Rule 25(a)(3). Our requirements for appellate briefs

were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.... Further, this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.

(Footnotes and punctuation omitted.) Fitzpatrick v. State, 317 Ga.App. 873, 874(1), 733 S.E.2d 46 (2012). Finally, Biggins' appellate brief indicates that additional information is necessary to support his arguments, and the brief makes several references to information to be contained in a forthcoming motion to supplement the record. No such motion was filed with this Court.

2. Biggins contends that the evidence was insufficient to convict him.

“A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16–8–41(a). Furthermore, “[i]n accordance with OCGA § 16–2–20(a), any person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citation and punctuation omitted.) Bryson v. State, 316 Ga.App. 512, 514(1), 729 S.E.2d 631 (2012).

Here, the evidence showed that Castro was robbed, inside a vehicle, by men armed with a gun. Castro spent time in the vehicle with the men, and identified Biggins as the robber holding the gun and to whom she ultimately was forced to give $450. A police officer also identified Biggins as one of the occupants of the vehicle. We do not determine the credibility of eyewitness identification testimony, and any conflicts in that testimony, as well as questions about its accuracy, are within the exclusive province of the jury. Fuller v. State, 320 Ga.App. 620, 740 S.E.2d 346 (2013). Even though no gun was introduced into evidence at trial, because the driver fled the vehicle, a reasonable jury could have inferred that he took the gun with him and disposed of it. Castro also testified that Biggins pointed a gun at her, and the jury heard a recording taken from the device Castro was wearing during the crime, where a male in the vehicle is heard threatening her and saying, “get the f–––out ‘fore I shoot you in the face right now.” Moreover, Biggins dropped $450 on the ground and claimed that the money was his. A police officer identified the bills as the same ones that had been given to Castro as a confidential informant to complete the drug buy. See Puente v. State, 249 Ga.App. 398, 398, 548 S.E.2d 109 (2001) (evidence sufficient where, although no gun was presented at trial, ammunition was found in getaway vehicle, as were bills matching the denominations of the money that was stolen). Further, Biggins' attempt to flee, first in the car and later after it crashed, provided an additional circumstance from which the jury could infer his guilt. See Fuller, supra at 624–625(1)(b), 740 S.E.2d at 346. The evidence was sufficient to sustain Biggins' conviction.

3. Biggins contends that his trial counsel was ineffective.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 694(III)(B), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164(4), 728 S.E.2d 225 (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697(IV), 104 S.Ct. 2052. Further, “we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

(a) Biggins first argues that he received ineffective assistance because he failed to accept a plea offer as the result of his trial counsel's failure to advise him that, as a recidivist, he was facing a mandatory life sentence without parole. Biggins now contends that had he known the life sentence was mandatory, he “probably” would have accepted the State's plea offer.

The record shows that the State offered Biggins a guilty plea in exchange for a 10–year sentence, and at the start of trial, discussed this offer with the Court in Biggins' presence. The Court informed Biggins that if convicted, he would have to serve “every day” of his sentence, and that the sentencing range was a minimum of 10 years to a maximum of life in prison. When asked by the Court if he understood the sentencing range and the plea offer, Biggins twice responded, “Yes, sir,” and stated that he wished his case to go before a jury. At the post-trial sentencing hearing, the State presented evidence of Biggins' two prior convictions. The trial court said, “I think it's a mandatory sentence,” and Biggins' counsel agreed, although there was no discussion of what that mandatory sentence was. The trial court then sentenced Biggins to life in prison because of his prior record. Biggins did not contest the sentence at that time, but later obtained new counsel and moved for a new trial, in part, on this ground. At the hearing on his motion for new trial, both Biggins and trial counsel testified that they discussed the plea offer. Trial counsel also testified that he informed Biggins several times that because of his recidivist status, he “could conceivably be looking at a life sentence,” and explained that the plea offer was a ...