Calloway v.State

• Decision Date: 26 January 2012
• Docket Number: No. A11A2130.,A11A2130.
• Citation: 12 FCDR 306,722 S.E.2d 422,313 Ga.App. 708
• Parties: CALLOWAY v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 306

313 Ga.App. 708

722 S.E.2d 422

CALLOWAY

v.The STATE.

No. A11A2130.

Court of Appeals of Georgia.

Jan. 26, 2012.

Robert Eugene Perrine, Jr., for appellant.

Plez Higdon Hardin, Dist. Atty., Wesley A. Lambertus, Asst. Dist. Atty., for appellee.

DILLARD, Judge.

Robert Calloway was convicted by a jury of kidnapping, aggravated assault, aggravated battery, and false imprisonment. On appeal, Calloway contends that (1) he was denied the trial counsel of his choosing, (2) he was constructively denied trial counsel due to his strained relationship with appointed counsel, and (3) the evidence was insufficient to sustain his conviction for kidnapping. For the reasons set forth infra, we affirm Calloway's convictions.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that on the evening of August 28, 2001, Calloway became angry with the victim—his girlfriend—after she returned home from visiting another male friend. As her young sons slept upstairs, Calloway unleashed his fury on the victim by repeatedly stabbing her in the back and neck with a pocket knife.

When this attack ceased, Calloway realized what he had done, panicked, and called his mother. After speaking with his mother, Calloway told the victim that he would drive her to the hospital. And although the victim wanted to call an ambulance and did not want to leave her children alone, Calloway insisted that she would reach the hospital faster if he drove. The victim finally agreed to this arrangement and got inside Calloway's truck.

As the two were driving, the victim realized that Calloway had passed the turn for the hospital. And when she asked why he had done so, Calloway responded that he was taking her to his mother's house. This statement proved to be false, and Calloway eventually explained that he intended to kill the victim and himself. Calloway then drove to a semi-deserted road, where he pulled over and again took out the knife.

The victim unsuccessfully tried to wrest the knife from Calloway's hands before fleeing from the truck when she spotted a passing car. But the other vehicle did not stop, and Calloway chased and caught the victim before again stabbing her numerous times in the back and throat. Consequently, she fell to the ground and lay motionless before Calloway dragged her farther into a ditch and left the scene, believing her to be dead.

Calloway then drove to the home of a friend, who observed a red substance—presumably blood—on his hands, shorts, and shoes. When Calloway began to explain that he had murdered his girlfriend, the friend told him to “go and do what you've got to do” and then called the police after Calloway departed.

Meanwhile, the victim spent the remainder of the night in the ditch, suffering bug bites and bleeding from her many wounds. But notwithstanding this perilous predicament, she somehow summoned the strength to roll over three times into a position that made her body more visible from the road. And the next morning, she was discovered by a passerby who happened to notice her body. The victim was then transported to a hospital and arrived in severe shock, having lost nearly half of her blood volume. As a result of the attack, she also sustained a lacerated trachea tube and pharynx, a puncture wound to the hand, nerve damage to her face that caused permanent paralysis of the muscles around her left eye, and a collapsed lung.

Thereafter, Calloway was arrested, brought to trial, and convicted by a jury of one count of kidnapping,² one count of aggravated assault, ³ one count of aggravated battery,⁴ and one count of false imprisonment.⁵ This appeal follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.” ⁶ And on appeal, we do not weigh the evidence or determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” ⁷ With these guiding principles in mind, we will now address each of Calloway's enumerations of error in turn.

1. Calloway first contends that he was denied the counsel of his choosing when the trial court declined to continue the trial proceedings after he indicated that he had retained new counsel. We disagree.

The Georgia Constitution provides that “[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel....” ⁸ Our Supreme Court has construed this constitutional provision to “confer upon every person indicted for [a] crime a most valuable and important constitutional right, which entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” ⁹ Whether a defendant has used “reasonable diligence” is a question of fact, and it is within a trial judge's discretion to either grant or deny a requested continuance when retained counsel is absent.¹⁰ We will reverse the judge's decision in this regard only when there has been an abuse of that discretion.¹¹

And here, the record shows that Calloway was represented at trial by an appointed attorney—notably, his third such appointed counsel.¹² On the first day of trial, after a jury had been empaneled and just as court was prepared to reconvene and the trial was set to begin, Calloway told the judge that he wished to dismiss his counsel because he was displeased with his representation. When pressed on this matter, Calloway said that he wanted to be represented by paid counsel and, more specifically, by Bill Murray, a local attorney.

Calloway explained that his family had met with Murray during the preceding lunch break and that, while Murray was not currently present, he would come to court. The judge then questioned Calloway as to why he had waited so long to retain paid counsel when he had been incarcerated for ten months and had known since the previous week that he would be going to trial. And the only explanation offered by Calloway was that he had been unable to afford paid counsel sooner.

The trial court then explained that while Calloway could certainly be represented by any attorney of his choosing, the case would still be tried that day as scheduled. The court further explained that it would give Murray a few minutes to arrive and to confirm that he had indeed been retained by Calloway. Murray's wife was apparently in court and indicated that her husband was at his office but would be on the way; however, when the court questioned Mrs. Murray as to whether her husband had actually been retained by Calloway, she replied that her husband had told Calloway's family that “they would have to talk to the court before he could give them a definite answer.” Hearing this, the court decided to proceed with the trial, noting that “[i]f there was some other attorney involved in this case, that other attorney had an obligation to be here.”

Calloway now argues that the trial court's decision to proceed with the trial denied him the counsel of his choosing. But the record reflects that Calloway failed to use reasonable diligence in obtaining substitute counsel. ¹³ Indeed, the trial court stated its belief that because of Calloway's timing, his requested continuance was made for purposes of delay; and the record supports the court's conclusion.¹⁴ Specifically, Calloway's family met with Murray for the first time during the lunch break after a jury had been empaneled and just prior to the start of trial. Further, Murray was never formally retained, as evinced by his wife's statement to the court.¹⁵ Accordingly , the trial court did not abuse its discretion in denying Calloway's request for a continuance and instead proceeding with Calloway's appointed counsel, who was prepared for trial.

2. Calloway next contends that he was constructively denied counsel due to his strained relationship with his appointed attorney. We disagree.

Ordinarily, to prove ineffective assistance of counsel, Calloway would need to show that his counsel's performance was deficient and that his defense was prejudiced by this deficient performance.¹⁶ Nevertheless, there are some situations in which a court will presume prejudice; however, these are “extremely limited and apply in only a narrow range of circumstances.” ¹⁷ Indeed, there are only three instances in which a defendant may rely upon a presumption of prejudice:

(1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel who labors under an actual conflict of interest that adversely affects his performance.¹⁸

Calloway argues that the first instance applies in his case—namely, that a strained relationship with his appointed attorney amounted to a constructive denial of counsel. But constructive denial of counsel is only present “when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” ¹⁹ And this, Calloway failed to show.

The record reflects that Calloway's counsel subjected the prosecution's case to meaningful adversarial testing, including cross-examining the State's witnesses, moving for a directed verdict on all four counts, and making a closing argument on Calloway's behalf. Accordingly, Calloway was not constructively denied counsel, and this enumeration is wholly without merit. ²⁰

3. Finally, Calloway contends that the evidence of kidnapping was insufficient to sustain his conviction. We disagree.

A person commits the offense of kidnapping when he or she “abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” ²¹ Calloway argues, however, that there was no evidence the victim was held against her will because she testified at trial that she willingly got into his...