Curtis v. State, A14A2202.

• Decision Date: 02 March 2015
• Docket Number: No. A14A2202.,A14A2202.
• Citation: 330 Ga.App. 839,769 S.E.2d 580
• Parties: CURTIS v. The STATE.
• Court: Georgia Court of Appeals

330 Ga.App. 839

769 S.E.2d 580

CURTIS

v.The STATE.

No. A14A2202.

Court of Appeals of Georgia.

March 2, 2015.

Pamela Tillery Britt, Grayson, for Appellant.

Daniel J. Porter, Dist. Atty., Christopher Michael Quinn, Asst. Dist. Atty., for Appellee.

Opinion

MILLER, Judge.

Timothy Dwayne Curtis was tried by a jury and convicted of armed robbery (OCGA § 16–8–41(a) ), aggravated assault with a deadly weapon (OCGA § 16–5–21(b)(2) ), aggravated assault with intent to rob (OCGA § 16–5–21(b)(1) ), and cruelty to animals (OCGA § 16–12–4(b)(1) ). He appeals the trial court's denial of his motion for new trial, contending that his trial counsel was ineffective in numerous respects and that the trial court erred during sentencing by failing to merge one of the aggravated assault counts with the armed robbery count. We find that Curtis did not receive ineffective assistance of counsel. We also find that the offense of aggravated assault with intent to rob was factually merged into the offense of armed robbery. Accordingly, we affirm in part, vacate in part and remand this case for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the evidence showed that Curtis was living in Duluth with Quinton Rogers and Stanley Wells. On January 18, 2012, Wells and Rogers got into an argument and a physical altercation ensued. According to Rogers, Wells became aggressive and grabbed Rogers. Curtis and Rogers then decided to leave before things escalated further.

Curtis drove Rogers to an apartment complex in Norcross to obtain some marijuana. When Curtis returned to the car, he brought two men with him, one short and one tall. Rogers testified that, on the way back to his house, there was no discussion of Wells or of guns or violence toward Wells. When Rogers and Curtis returned to the house, they all started arguing again. Wells told Curtis and Rogers that they were going to have to leave. Wells testified that Curtis then called someone on his phone and said, “Y'all ready?” Immediately thereafter, the two men from Norcross came into the house. The shorter man pulled out a gun, pointed it at Wells, told him to get down on the floor, and hit him in the head with the gun when he failed to comply. They then pulled out Wells's pockets, and continued hitting him, taking his wallet and his cell phone. At some point, Wells heard Curtis say, “Give me that tool,” which he assumed meant the gun.

Wells escaped and started running toward the front of the house. The taller man started shooting at him, and Wells grabbed Curtis and used him as a shield. Curtis then ran out the back door, and Wells followed. Wells ran to a neighbor's house for help, and she called 911.

When City of Duluth police officer Andrew Brandenburg, responded to the 911 call, he observed pistol imprints on Wells's head. Officer Brandenburg testified that Wells was in shock and said, “I know who did it. It was four guys.” Wells was transported to the hospital and treated for lacerations on his head and two gunshot wounds

on his leg.

Rogers testified that he was in his bedroom when he heard arguing, and when his bedroom door opened, he saw Wells on the floor with the shorter man standing over him. Rogers also testified that when he climbed out of his bedroom window and began walking to the bus station, he saw flashes coming from the window of the house and heard what sounded like three gunshots.

James Jackson, a neighbor, testified that he was driving past Wells' house and saw flashing lights coming from inside. He saw Wells running out of the house, limping, and then saw two or three other men come out of the house. He saw three or four men get into a car and drive up the street, stopping to pick up another man who was walking.

William Petty, a City of Duluth police officer, testified that he knew Wells and Rogers. Petty responded to the 911 call and observed shattered glass, an overturned chair, blood in the hallway, a bullet casing in the hallway, and a gun magazine in the bathroom. He also found two dogs in a locked bedroom and one of the dogs had what appeared to be a gunshot wound

.

After hearing the evidence at trial, the jury issued a verdict of guilty on all four counts of the indictment, Curtis was sentenced to life imprisonment for armed robbery, ten years imprisonment for each count of aggravated assault, and twelve months imprisonment for cruelty to animals. The sentences for aggravated assault and cruelty to animals were to run concurrently with the sentence for armed robbery.

1. Curtis contends that his trial counsel was ineffective for failing to request that opening statements, closing statements, and voir dire be recorded; failing to impeach Wells's testimony with phone records; failing to impeach several of the State's witnesses with their prior felony convictions; and failing to inform the jury of the terms and conditions of Rogers's guilty plea. We find that Curtis has failed to make the requisite showing that his trial counsel provided ineffective assistance.

To establish an ineffective assistance of counsel claim, [Curtis] must show that the counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [Curtis] must show that both prongs of the Strickland test are met. Further, a strong presumption exists that the counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Ineffectiveness claims are mixed questions of law and fact. We accept the trial court's findings of fact unless clearly erroneous and apply the law to the facts independently.

(Citation and punctuation omitted.) Brooks v. State, 323 Ga.App. 681, 684(2), 747 S.E.2d 688 (2013).

(a) Curtis contends that his trial counsel was ineffective for failing to have the opening and closing statements and voir dire transcribed. We disagree.

The arguments of counsel at trial are not required to be transcribed. OCGA § 17–8–5(a). And “[a]lthough objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a nondeath penalty felony case.” (Citation omitted.) Brinkley v. State, 320 Ga.App. 275, 280(4), 739 S.E.2d 703 (2013). Accordingly, the failure to request that opening and closing statements and voir dire be reported does not constitute a basis for an ineffective assistance of counsel claim. See Williams v. State, 323 Ga.App. 88, 90(2)(c), 746 S.E.2d 913 (2013) ; see also Dunlap v. State, 291 Ga. 51, 53(3), 727 S.E.2d 468 (2012) (defendant's speculation that error may have occurred during unrecorded opening or closing statements or voir dire “is insufficient to show any deficiency on the part of counsel, or prejudice therefore, and is insufficient to show reversible error.”) (citations omitted).

(b) Curtis contends that his trial counsel was ineffective for failing to subpoena the necessary witnesses to authenticate the phone records for Wells and Curtis, which could have been used to impeach Wells's testimony about phone calls he claimed were made from him to Curtis and from Curtis to one of the men who assaulted him. We disagree.

The day after the incident, Officer Petty interviewed Wells, and Wells told him that he called Curtis before the attack and that Curtis also called the men who attacked him. In an attempt to verify those calls, Officer Petty subpoenaed Wells's and Curtis's cellular phone records. The records were not introduced at trial and when Curtis's counsel sought testimony from Officer Petty about whether the records showed that the calls Wells testified about had actually been made, the trial court sustained the State's objection based on lack of foundation.

Even if Curtis's trial counsel was deficient for failing to subpoena witnesses to authenticate the phone records, Curtis has failed to show prejudice.

To prove the prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a defendant must show the witness's expected testimony by presenting either live testimony of the witness, an affidavit from the witness, or a legally recognized substitute for the uncalled witness's testimony; a proffer by counsel is insufficient.

(Citations and punctuation omitted.) Benjamin v. State, 322 Ga.App. 8, 11(1)(b), 743 S.E.2d 566 (2013). At the motion for new trial hearing, the phone records were not proffered and the witnesses that Curtis claims should have been called at trial did not testify or provide a legally recognized substitute for such testimony. “Where, as here, the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.” (Citations and punctuation omitted.) Brooks, supra, 323 Ga.App. at 684 –685(2), 747 S.E.2d 688.

Curtis also contends that his trial counsel was ineffective in failing to make Wells admit to an inconsistency between Petty's testimony about his interview with Wells and Wells's trial testimony. According to Officer Petty, Wells said that Rogers had head-butted him during the initial argument about the power bill. Wells testified that he did not say that, but told Officer Petty that “[Rogers's] mouth touched my mouth, face to face.” Trial counsel made the jury aware of this inconsistency, and Curtis has not shown a reasonable probability that the outcome of his trial would have been different if Wells had admitted the inconsistency.

(c) Curtis contends that his trial counsel was ineffective for failing to impeach Rogers, Jackson and another witness, Carlyon John Price, with their prior felony convictions and for failing to request a jury charge on impeachment by prior felony...