Cobb v. State

• Citation: 348 Ga.App. 210,820 S.E.2d 241
• Decision Date: 23 October 2018
• Docket Number: A18A1018
• Parties: COBB v. The STATE.
• Court: United States Court of Appeals (Georgia)

348 Ga.App. 210

820 S.E.2d 241

COBB

v.The STATE.

A18A1018

Court of Appeals of Georgia.

October 23, 2018

Reconsideration Denied November 15, 2018

David James Dunn Jr., Victor Philip Aloisio III, for Appellant.

Herbert E. Franklin, La Fayette, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Allen Merrill Cobb was convicted of aggravated assault, riot in a penal institution, and obstruction of an officer. He appeals the denial of his motion for new trial, arguing that trial counsel was ineffective. But Cobb has not shown that trial counsel’s performance was both deficient and prejudicial. So we affirm.

1. Facts and procedural posture.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that Cobb was an inmate at Hays State Prison and was involved in a riot in one of the prison dining halls. The riot started when Sergeant Smith, a correctional officer, confronted Cobb’s co-defendant Raymond Razo, who had snuck in line to get a second tray of food. Sergeant Smith was the sole correctional officer stationed in the dining-room portion of the dining hall, where about 60 inmates were present. When Razo tried to sneak in line a third or fourth time, Smith used his radio to try to call his lieutenant and members of the correctional emergency response team, who were stationed outside the dining hall.

Correctional Officer Chapman, who was supervising inmates preparing food in the kitchen, heard Smith and came out from the kitchen. Chapman ordered Razo to leave the dining hall and began to escort him out. Razo appeared to cooperate with Chapman, but then turned around and struck Sergeant Smith in the face. Smith then was attacked from behind by inmates he could not identify. Inmates separated Chapman and Smith, and co-defendant William Castillo struck Chapman in the face. Chapman radioed for help. The encounter escalated, eventually involving several correctional officers and between 25 and 35 inmates.

Sergeant Drummond, one of the officers who responded to the call for help, ordered inmates to the ground. Inmates started swinging at him; he could not identify them. He started spraying pepper spray.

The victim of appellant Cobb’s attack was Officer Schrader, the leader of the correctional emergency response team that had responded to the disturbance. When Schrader entered the dining hall, he began spraying pepper spray. He used his baton to strike two inmates who were attacking Sergeant Drummond.

An inmate struck Schrader from behind with a wooden cane, shattering it. Schrader could not identify that inmate. When Schrader turned around, Cobb struck him in the face with a sharp, homemade metal weapon. Then a group of inmates picked up Schrader, slammed him to the ground, and began kicking him. One or two inmates slammed a dining table into Schrader. Schrader suffered a concussion, a split lip, cuts, stab wounds, and bruised bones.

Of all the inmates who attacked him, Schrader was only able to identify Cobb. He did not know Cobb by name, but he looked through photographs, identified him, and determined his name.

Schrader made two sworn, written statements about the incident, but he did not identify Cobb (or any other attacker) in either statement. However, in a conversation with the Department of Corrections investigator who prepared one of the statements, he did identify Cobb.

The deputy warden identified co-defendant James Roberts as the inmate who hit Schrader with the cane. None of the other correctional officers who testified at the trial were able to identify any of the inmates who attacked Schrader. One of the officers, Schrader’s partner, testified that Cobb hit him ; he did not testify that Cobb hit Schrader.

None of the defendants testified, but other inmates did. Inmate Joshua Perry testified that even before the correctional emergency response team members arrived in the dining hall, he had dropped to the floor and that Cobb was lying on the floor next to him while the altercation took place.

Cobb was indicted for aggravated assault, simple battery, two counts of riot in a penal institution, and two counts of obstruction of an officer. He was tried before a jury with co-defendants Castillo, Razo, and Roberts. The jury found Cobb guilty of aggravated assault, one count of riot in a penal institution, and one count of obstruction of an officer, and not guilty of another count of riot in a penal institution, another count of obstruction of an officer, and simple battery. The trial court imposed a twenty-year sentence for aggravated assault, a consecutive twenty-year sentence for riot in a penal institution, and a consecutive five-year sentence for obstruction of an officer. Cobb’s motion for a new trial was denied, and this appeal followed.

2. Effective assistance of counsel .

Cobb argues that he received ineffective assistance of counsel due to counsel’s failure to call two witnesses: another inmate who claimed that Cobb was not involved in the riot and an expert on eyewitness identification. Cobb also argues that, cumulatively, counsel’s errors harmed his case.

To prevail on these claims, Cobb "must show both that (his) counsel’s performance was deficient and that the deficient performance so prejudiced (him) that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different." Reeves v. State , 346 Ga. App. 414, 418 (3), 816 S.E.2d 401 (2018) (citation omitted). As for deficient performance, the question is whether the errors "are unreasonable ones no competent attorney would have made under similar circumstances." Stripling v. State , 304 Ga. 131, 138 (3) (b), 816 S.E.2d 663 (2018) (citations and punctuation omitted). As for prejudice, "[t]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington , 466 U.S. 668, 695 (III) (B), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." McAllister v. State , 343 Ga. App. 213, 217 (3), 807 S.E.2d 14 (2017) (citation and punctuation omitted).

(a) Failure to interview and to call a fellow inmate to testify .

Cobb argues that counsel was ineffective for failing to interview and to call to testify fellow inmate Keith Dixon, who would have testified that Dixon himself inflicted the injuries that Schrader testified Cobb had inflicted. Cobb has failed to make the required showing of prejudice.

At the motion for new trial hearing, Dixon testified that he was present at the riot; that he struck Schrader with a wooden cane several times, contradicting the deputy warden’s testimony identifying co-defendant James Roberts as the inmate who hit Schrader with the cane; and that Cobb was not involved in the fight. Dixon testified that he was the inmate who caused Schrader’s injuries by striking him with the cane.

But Schrader testified that he was injured not only when he was struck with the cane, but also when he was attacked with the sharp, homemade metal weapon. As for Dixon’s testimony that Cobb was not involved in the fight, similar evidence was presented to the jury through the testimony of inmate Joshua Perry, who testified that Cobb was lying on the floor next to him while the altercation took place. So Perry’s testimony supplied the same kind of exculpatory testimony Cobb argues Dixon would have provided.

Because Dixon’s testimony did not point to another person as the individual who used a sharp, homemade metal weapon against Schrader and would have been largely cumulative of information already heard by the jury, Cobb was not prejudiced by the omission of his testimony. See Walton v. State , 303 Ga. 11, 14-15 (2), 810 S.E.2d 134 (2018) ; Rakestrau v. State , 278 Ga. 872, 873-874 (2), 608 S.E.2d 216 (2005). His claim of ineffective assistance of counsel in this regard fails.

(b) Failure to call an expert witness .

Cobb argues that trial counsel was ineffective for failing to obtain an expert to testify about the fallibility of eyewitness identifications. He has not shown that trial counsel’s performance was deficient.

At the motion for new trial hearing, an associate professor of psychology was qualified as an expert in the field of eyewitness identification. She testified generally about factors, many of which were present in this case, that adversely affect a witness’s ability to make a...