Cupsa v. State

• Decision Date: 25 June 2020
• Docket Number: A20A0611
• Citation: 356 Ga.App. 241,846 S.E.2d 119
• Parties: CUPSA v. The STATE.
• Court: Georgia Court of Appeals

356 Ga.App. 241

846 S.E.2d 119

CUPSA

v.The STATE.

A20A0611

Court of Appeals of Georgia.

June 25, 2020

Reconsideration Denied July 14, 2020

Frances C. Kuo, Lawrenceville, for Appellant.

Daniel J. Porter, District Attorney, Daniel P. Sanmiguel, Lee F. Tittsworth, Assistant District Attorneys, for appellee.

Doyle, Presiding Judge.

Following a jury trial, Cornelius Cupsa was convicted of armed robbery,¹ false imprisonment,² and possession of a firearm during the commission of a felony.³ Cupsa appeals the denial of his subsequent motion for new trial, alleging that the trial court plainly erred in responding to a jury question and that trial counsel was ineffective. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict,⁴ the record shows that on April 2, 2015, K. F., a prostitute who had been seeing Joshua Smith for about six months after meeting him on Craigslist, summoned him to a hotel room in Suwanee after confirming the meeting multiple times. When Smith got to the hotel room, K. F. invited him in; as the door closed behind him, one man attacked him from behind while Cupsa and another man rushed out of the bathroom wielding guns. K. F. told the men, "Don't hurt him, don't kill him," said she was sorry, and fled the room. Cupsa and the two men – Andy Ulysse and Teddy Williams – took Smith's cell phone, cash, debit card, and a cannabis vape pen. At one point, one of the men put a pillow against the back of Smith's head, cocked his gun, and told Smith they were going to kill him unless he gave them the PIN to his debit card. Cupsa, while wielding a handgun, patted Smith down, directing him not to move.

Cupsa, Ulysse, Williams, K. F., and Mary Puckett — Ulysse's girlfriend — were all charged in the same indictment with crimes stemming from Smith's robbery. Cupsa, who was tried separately, presented a coercion defense, claiming that Ulysse forced him to participate in the robbery. According to Cupsa, he was hanging out with the other co-defendants in the hotel room, and he went to his car to retrieve his gun at Ulysse's suggestion. Cupsa further testified that when he returned to the room, Ulysse had a handgun and Williams had a shotgun; Williams pointed the shotgun at everyone in the room and threatened to kill anyone who spoke about the situation that was going to take place. Ulysse pulled Cupsa aside and told him in an "authoritative" tone, "Hey, little bro, I need your help. We're about to rob somebody." According to Cupsa, "[i]t wasn't like I had an option." Cupsa admitted, however, that he personally removed things from Smith's pockets, but explained that he did so at Ulysse's direction.

K. F., however, testified that Cupsa participated in the conversation planning the robbery, and that no one threatened him with death or bodily injury if he did not participate. Ulysse also testified, explaining that he was serving time as a result of his guilty plea to the robbery of Smith. Ulysse testified that Cupsa was present for the robbery, but he "[did not] recall" whether he threatened to kill Cupsa if he failed to participate, and Ulysse said that because he "was on drugs, tripping," he "may have" threatened Cupsa with great bodily injury. Although Ulysse did not "recall" stating to the court during his guilty plea that he did not force Cupsa to participate in the robbery, he also testified that "[e]verybody did participate" in the robbery.

At the conclusion of the trial, the jury found Cupsa guilty of all three charges. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Cupsa contends that the trial court plainly erred when responding to a question from the jury during deliberations. We find no basis for reversal.

During deliberations, the jury sent the following written question to the trial court: "If we determine the defendant was coerced, will that automatically apply to all three [counts], all not guilty, or can we still find him guilty on some [counts]?" The trial court proposed a response to which the parties affirmatively stated they had no objection. The court then gave the jury the proposed response: "The jury must make an independent determination with regard to each of the three counts you are considering, taking into account all of the evidence and the charge of the [c]ourt." Again, counsel for the State and Cupsa both advised they had no objection to the response.

As Cupsa concedes on appeal, because he failed to object to the trial court's response to the jury's question, we review this enumeration for plain error under OCGA § 17-8-58 (b).⁵

Plain error review involves four steps. First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.⁶

Cupsa has failed to demonstrate legal error. The trial court's response to the jury is a correct statement of law. The court previously had instructed the jury that the State was required to prove each element of the crimes charged beyond a reasonable doubt, and it gave the pattern charge on coercion. Georgia trial courts are prohibited from expressing to the jury its opinion as to the guilt of the defendant or as to whether an element of the crime has been proved.⁷ Given the content of the response, the charge as a whole and the applicable law, the trial court's response to the jury's question did not constitute plain error.

2. Cupsa also argues that trial counsel was ineffective in several ways.

To prevail on his claim of ineffective assistance of trial counsel, [Cupsa] must prove both that counsel's performance was professionally deficient and that he was prejudiced by the deficient performance. To prove deficient performance, [Cupsa] must show that his counsel performed in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Reasonable trial strategy and tactics do not amount to ineffective assistance of counsel. To prove prejudice, [Cupsa] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This burden is a heavy one. And if [Cupsa] fails to show either deficiency or prejudice, this Court need not examine the other prong of the Strickland^{[8 ]} test.⁹

(a) Cupsa alleges that trial counsel was ineffective by failing to object to the trial court's response to the jury's question on coercion. As we concluded in Division 1, however, the trial court's response was not erroneous. "Failure to make a meritless objection cannot be evidence of ineffective assistance."¹⁰ Accordingly, the trial court properly denied Cupsa's motion for new trial on this basis.

(b) Cupsa also argues that trial counsel was ineffective by failing to present evidence of K. F.’s bias, specifically, that she received a reduced sentence in exchange for her testimony. Cupsa points out that trial counsel observed portions of the separate trial of Puckett, during which K. F. testified that in exchange for her truthful testimony, she received a reduced sentence for the crimes against her arising from the instant robbery.¹¹

There was no evidence presented at the motion for new trial hearing or otherwise that K. F. received a reduced sentence in exchange for her testimony at Cupsa's trial. Pretermitting, however, whether trial counsel was deficient, Cupsa has failed to establish a reasonable probability that, but for the alleged deficiency, the outcome of the trial would have been different. During its direct examination of K. F., the State elicited her testimony that she was serving time in prison for the charges related to the April 2, 2015 robbery. Furthermore, the trial court charged the jury on impeachment by prior conviction, including specific reference to K. F.¹² Essentially, Cupsa "offers nothing more than his own speculation that had his trial counsel been successful in introducing [K. F.’s plea deal] for impeachment purposes, there is a reasonable probability the jury would have acquitted him on at least one charge. But mere speculation is insufficient to satisfy the prejudice prong of Strickland ."¹³ Under these circumstances, the trial court did not err by denying Cupsa's motion for new trial on this basis.¹⁴

(c) Finally, Cupsa contends that trial counsel was ineffective by failing to fully review all of the discovery or to present exculpatory evidence in the police file. This argument presents no basis for reversal.

(i) Defense counsel interviewed Ulysse at the jail. Several days before trial, defense counsel went to the prosecutor's office and listened together to "two or three" recordings of jail calls made by Ulysse, including one that was ultimately introduced at trial. Before defense counsel left, the prosecutor gave him two discs: one containing 170 recordings of Ulysse's jail recordings, and a second containing a recording of the prosecutor's interview of Ulysse. Trial counsel did not review either disc, and as a result, he was unaware until after the trial that there were recordings of Ulysse's jail calls other than the few he reviewed with the prosecutor or that the prosecutor had interviewed Ulysse.¹⁵

At trial, the State...