Feaster v. State

• Decision Date: 02 February 2007
• Docket Number: No. A06A2070.,A06A2070.
• Parties: FEASTER v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 417

641 S.E.2d 635

FEASTER v. The STATE.

No. A06A2070.

Court of Appeals of Georgia.

February 2, 2007.

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

PHIPPS, Judge.

After a bench trial, Christopher Feaster was convicted of armed robbery and possession of a firearm during the commission of a crime. His motion for new trial was denied. Feaster appeals, challenging the sufficiency of the evidence and contending that the trial court erred by forcing him to go to trial with the attorney the court had appointed and by rejecting his claim of ineffective assistance of counsel. Because Feaster has demonstrated no error, we affirm.

1. Feaster contends that the evidence was insufficient to support his convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. 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.¹

Francis Doherty, a commercial airline pilot, testified that just before 4:00 a.m. on June 20, 2003, he was walking down a sidewalk with his luggage headed to a 5:00 a.m. appointment at an airline training center. He encountered a man standing on the sidewalk, who leaned toward him and showed him a gun. Threatening to shoot Doherty, the man told him to empty his pockets and put everything in a nearby truck.

The area was lit by street lights and business signs, marquees, and lighted doorways. Doherty testified that the lighting conditions were "absolutely" sufficient for him to get a good look at the man and that he "looked right at him." Doherty further noticed the man's clothing—a blue, nylon "basketball warm up," with stripes down the sleeves and a stocking cap that covered his hair. Doherty looked at the man's truck, a brown or tan mid-90s Ford Ranger pickup with a short bed. He followed the man to the truck and placed in its bed his suitcase and flight kit, which contained his manuals, charts, emergency procedures, and other materials required when piloting. The man then got into the truck and drove onto Interstate 285. Within two or three minutes, Doherty asked someone to call 911 to report that he had been robbed.

Meanwhile, on Interstate 285, approximately five to six miles from the location of the armed robbery, Officer Mark Resturrucci of the College Park Police Department was operating a speed detection device. At 4:03 a.m., he tracked a brown Ford Ranger pickup truck traveling 85 mph in a 55 mph speed zone and stopped it. When Resturrucci reported the stop to dispatch, he was notified of a lookout for the perpetrator of a recent armed robbery, a black male last seen driving a brown Ford truck with luggage taken during the crime in the truck bed. Approaching the truck, Resturrucci saw that the driver was a black male and that there was luggage in the truck bed. Suspecting that the driver was the armed robber, Resturrucci ordered the man, later determined to be Feaster, to step out of the truck. When Feaster complied, two shell casings fell from his lap. Resturrucci testified, "I immediately placed the subject in custody. I performed a Terry pat just to search for weapons." During the patdown, Resturrucci pulled two shell casings out of Feaster's pocket before securing him in the patrol car. According to Resturrucci, Feaster was wearing "blue basketball-type warmup gear." Resturrucci further testified that, incident to the arrest, he searched the truck for weapons, finding none. During a search of the luggage, however, he found an identification card for Doherty.

Resturrucci summoned the police officers, who, by then, had responded to Doherty's 911 call, to the scene of the traffic stop. Those officers arrived, escorting Doherty, who positively identified Feaster as the man who had robbed him, further noting that he still had on the basketball suit and the stocking cap. Doherty also identified the brown Ford Ranger pickup truck as the one in which the armed robber had driven away and the luggage in the truck bed as his own. His suitcase and flight kit were released to him, and he was allowed to continue to the training center with them.

At trial, Doherty identified Feaster as the man who had robbed him of his luggage at gunpoint. Resturrucci identified Feaster as the man he had stopped for speeding and thereafter taken into custody as the armed robbery suspect.

On appeal, Feaster contends that the state failed to show that he was the perpetrator of the crimes for which he was convicted. He points out that the state introduced neither the gun used nor the luggage taken during the robbery. And he cites evidence that the police found no gun either in his possession or along roads between the scenes of the armed robbery and the traffic stop, despite Resturrucci's search of them about two hours after the armed robbery. Notwithstanding, the evidence adduced at the trial authorized a finding that Feaster was guilty beyond a reasonable doubt of armed robbery and possession of a firearm during the commission of a crime.²

2. Feaster contends that the trial court erred by refusing to appoint a different attorney for him, asserting that his attorney was hostile and refused to follow his instructions.

After the case was called, Feaster informed the court that he did not want to go to trial with the court-appointed attorney. He claimed that his attorney had not acted in his best interest and, specifically, had not "even established a defense for me." He reported that during their discussions of his case, "it's just a conflict of interest with both of us," although he did not disclose the nature of the conflict. Feaster made it clear, however, that he was not seeking to represent himself.

"A defendant is entitled to reasonably effective assistance of counsel but not appointed counsel of his own choosing."³ Because Feaster has shown nothing in the record indicating that his appointed counsel was unable or unwilling to effectively represent him, this contention presents no basis for reversal.⁴

3. Citing Balbosa v. State,⁵ Feaster contends that the trial court erred in finding that his waiver of a jury trial was knowing, intelligent, and voluntary. In Balbosa, the Supreme Court of Georgia reiterated the rule that the state has the burden of proving that the defendant's waiver of his right to a jury trial was made knowingly, intelligently, and voluntarily.⁶ The Court determined that, in that case, the state had failed to carry its burden because it had shown nothing more than a jury trial waiver by defense counsel in the defendant's presence.⁷

In this case, the transcript of the pretrial hearing reveals that Feaster's counsel reported to the court that she had explained to Feaster the differences between a bench trial and a jury trial. The transcript further reveals that the trial court conducted a colloquy with Feaster himself, during which it discussed the differences between the two types of trial, advised Feaster that the choice between the two was exclusively his own, and inquired whether he wished to invoke or waive his right to a jury trial. Thus, the trial court's finding that Feaster's waiver was made knowingly, intelligently, and voluntarily was not clearly erroneous.⁸

4. Feaster contends that the trial court erred by failing to ascertain whether his election not to testify was made knowingly, intelligently, and voluntarily.

Although a criminal defendant has a constitutional right to testify in his own defense, whether to so testify is a tactical decision to be made by the defendant himself after consultation with his trial counsel.⁹ At the motion for new trial hearing, Feaster's trial attorney testified that, based upon what Feaster had told the police on the night of the incident and the starkly different versions of the incident he had given her, she advised him that he would not make a good witness. She testified that she, nevertheless, "made sure" that Feaster understood that the ultimate decision whether to testify was his to make. Thus, Feaster was aware of his rights prior to making his decision not to testify.¹⁰ And the trial transcript reveals that Feaster himself confirmed to the court that he was electing not to testify.

As Feaster points out, it is preferable for the trial court to make a record of a defendant being advised of his right to testify.¹¹ But, as this court has repeatedly held, the trial court does not commit reversible error by not doing so.¹²

5. Feaster contends that the trial court erred in rejecting his claim of ineffective assistance of counsel.

To prevail on such a claim, a defendant must establish, pursuant to Strickland v. Washington,¹³ that counsel's performance was deficient and that the deficient performance was prejudicial to his defense.¹⁴ A court addressing the ineffective assistance issue is not required to approach the inquiry in any particular order or even to address both components if the defendant has made an insufficient showing on one.¹⁵ Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.¹⁶ In reviewing a trial court's determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court's factual findings unless they are clearly erroneous; we review a trial court's legal conclusions de novo.¹⁷

(a) Feaster argues that his trial counsel was ineffective because she did not file a motion to exclude evidence of the shell casings pulled from his pocket on the ground that the intrusion into his pocket exceeded the scope permissible under the plain feel doctrine. When trial counsel's failure to pursue a motion to exclude evidence is the basis for a claim...