Callahan v. State

• Decision Date: 07 July 2006
• Docket Number: No. A06A0584.,A06A0584.
• Citation: 280 Ga. App. 323,634 S.E.2d 102
• Parties: CALLAHAN v. The STATE.
• Court: Georgia Court of Appeals

280 Ga. App. 323

634 S.E.2d 102

CALLAHAN v. The STATE.

No. A06A0584.

Court of Appeals of Georgia.

July 7, 2006.

Vaughan & Evans, Donald C. Evans, Jr., Cartersville, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

BERNES, Judge.

A Bartow County jury convicted appellant David Callahan of two counts of armed robbery, two counts of possession of a firearm during a crime, and one count of carrying a concealed weapon. He appeals from the trial court's denial of his motion for new trial.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that after midnight on November 23, 2002, Callahan, along with his cousin, Christopher Callahan, and their friends, Waymon Bryant and Clence Poe, traveled to the Econo Lodge hotel in Cartersville, where Poe intended to buy marijuana. After Poe had gone to one of the hotel rooms in search of the drugs, Callahan and Bryant exited the vehicle, rushed into a different hotel room and robbed the two victims, Wendy Overeem and Kevin Matheney, at gunpoint. During the robbery, Callahan and Bryant took a Zippo camouflage knife and $3 from Matheney, and $20 from Overeem.

As a struggle ensued between Matheney and the perpetrators, Overeem escaped from the room and called 911 on her cell phone. Callahan and Bryant then ran out of the room and returned to the vehicle. Poe heard the yelling from a nearby hotel room and saw Overeem running and calling 911 on her cell phone. He also heard Matheney yell that he had been robbed and saw Callahan and Bryant running from the hotel room where the armed robbery occurred. Unable to make his drug purchase, Poe returned to his vehicle and drove Callahan and Bryant away from the scene. After they left the scene, Bryant told Poe that they had "pulled guns out on them folks."¹

At approximately 1:02 a.m., deputies from the Bartow County Sheriff's Office were in the 911 center when they heard the call of an armed robbery in progress at the Econo Lodge hotel. While en route to the scene, the deputies received a lookout describing the suspects as "two black males, dark clothing in a light-colored passenger car." Within minutes after receiving the lookout, the deputies observed Poe's small, light-colored passenger vehicle pass them and saw that it was occupied by four occupants who appeared to be black and wearing dark clothing.

Poe was driving, Christopher Callahan was seated in the front passenger position and Callahan and Bryant were seated in the back. All four occupants of the vehicle were arrested after the car turned and parked in an apartment complex. Inside the car, police discovered two guns, money, and the victim's knife. At the time of Callahan's arrest, he was wearing a gray sweat shirt which was identified at trial by Matheney and Overeem as the sweatshirt worn by one of the perpetrators during the armed robbery.

Later that day, Overeem was shown four photo lineups and identified Bryant as one of the assailants.² Bryant pled guilty to the armed robbery charges prior to trial and testified as a State's witness. He testified that Callahan took Poe's gun from the vehicle and committed the armed robbery with him.

This evidence was sufficient to authorize any rational trier of fact to find Callahan guilty of the crimes as charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Callahan contends several errors combined to deprive him of a fair trial. "[T]his state does not recognize the concept of cumulative error, [and] it is incumbent upon the defendant to show error with regard to each point he raises." (Citation omitted.) Brinson v. State, 243 Ga.App. 50, 52(3), 530 S.E.2d 798 (2000). Accordingly, we discuss separately each of Callahan's claims in turn.

1. Callahan contends his trial counsel rendered ineffective assistance.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Brooks v. State, 273 Ga.App. 691, 694-695(4), 615 S.E.2d 829 (2005). "A reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order." (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388, 389(1), 411 S.E.2d 119 (1991). We will not disturb the trial court's finding as to counsel's effectiveness unless such finding is clearly erroneous. Rose v. State, 263 Ga. App. 263, 264(1)(a), 587 S.E.2d 326 (2003). Bearing these principles in mind, we review Callahan's ineffective assistance of counsel claims below.

(a) Counsel's failure to file a motion to suppress. Callahan first claims that he received ineffective assistance of counsel based on trial counsel's failure to file a motion to suppress evidence seized from Poe's car. "When trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion." (Citation, punctuation and footnote omitted.) Parker v. State, 273 Ga.App. 823, 824, 616 S.E.2d 139 (2005).

Callahan has failed to do so in this case. Citing Vansant v. State, 264 Ga. 319, 443 S.E.2d 474 (1994), he contends the officers lacked an articulable suspicion to stop Poe's vehicle and lacked probable cause to arrest Callahan. Callahan has never asserted a possessory interest in Poe's vehicle or the items seized³ and therefore, he has not demonstrated that he has standing to contest the admissibility of the seized items. Robinson v. State, 208 Ga.App. 528, 529-530(2), 430 S.E.2d 830 (1993); Morgan v. State, 195 Ga. App. 732, 736(4), 394 S.E.2d 639 (1990).

While Callahan may have had standing to contest the admissibility of evidence seized from him, i.e., his sweatshirt, see State v. Cooper, 260 Ga.App. 333, 334-335, 579 S.E.2d 754 (2003), there is evidence in the record which suggests that Poe had voluntarily parked and exited his vehicle prior to the police encounter. Thus, it is not even clear whether Poe's vehicle was "stopped." It is also not clear exactly what facts and circumstances were known to the arresting officer at the time of Callahan's arrest. There is evidence at trial showing that the arresting officer was radioed information, not contained in the original lookout, regarding the perpetrators including the fact that one of the perpetrators was wearing a gray sweatshirt. It is not clear when this information was transmitted, but it may have provided additional facts and circumstances establishing probable cause for Callahan's arrest.

"Because no motion to suppress was filed in this case, [the] record was [not] fully developed as to the existence of and the basis for [the officers'] reasonable suspicion to perform the stop[, if any, or for the officer's probable cause to arrest]." Garrett v. State, 259 Ga.App. 870, 874(2), 578 S.E.2d 460 (2003). The arresting officers were not called to testify at the motion for new trial hearing; their "only testimony as to the [circumstances surrounding the arrest] came during trial where no issue was raised with regard to the validity of the stop [or arrest]." Id. at 874(2), n. 15, 578 S.E.2d 460. Callahan has not met his burden of showing the damaging evidence would have been suppressed had trial counsel made a motion. Accordingly, this claim of ineffectiveness affords no basis for relief.

(b) Counsel's failure to object or request a mistrial after the State allegedly withheld discovery of exculpatory evidence. Prior to trial, Callahan's trial counsel filed a "Motion to Reveal the Deal." The State did not disclose its immunity agreement with Overeem until after trial commenced. Callahan claims that his trial counsel should have objected on Brady⁴ grounds when the State disclosed the immunity agreement at trial during the voir dire examination and again during Overeem's direct examination. We disagree.

There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

(Citations and punctuation omitted.) Floyd v. State, 263 Ga.App. 42, 43, 587 S.E.2d 203 (2003). Here, there was no suppression of the impeaching evidence. As previously noted, the prosecutor openly divulged the fact that the two victims, Matheney and Overeem, had been indicted for attempted violation of the Georgia Controlled Substances Act based upon allegations that they had attempted to purchase cocaine from Bryant prior to the incident, and that they both had been granted immunity from those drug charges in exchange for their testimony at trial. Compare Byrd v. Owen, 272 Ga. 807, 536 S.E.2d 736 (2000).

Brady is not violated when the Brady material is available to defendants during trial. Floyd, 263 Ga.App. at 43, 587 S.E.2d 203. Although Callahan complains that he should have been expressly informed of the immunity agreement prior to trial, he has made no showing as to anything that his counsel would have done differently or how an earlier disclosure would have affected the outcome of the trial. Callahan has not demonstrated that his trial counsel's failure to object constituted deficient performance or that he was prejudiced thereby.

(c) Counsel's failure to object to evidence of the victim's pretrial identification. Next, Callahan contends that his counsel was ineffective in failing to object to evidence of the victim's pretrial identification of him at a calendar call.⁵ Callahan argues that the victim's...