Frazier v. State

• Decision Date: 10 November 2016
• Docket Number: A16A1118
• Citation: 339 Ga.App. 405,793 S.E.2d 580
• Parties: FRAZIER v. The STATE
• Court: Georgia Court of Appeals

339 Ga.App. 405

793 S.E.2d 580

FRAZIER

v.The STATE

A16A1118

Court of Appeals of Georgia.

November 10, 2016

Michael Wayne Tarleton, Erin L. Pinder, for Appellant.

Robert Bradford Bickerstaff II, Julia Anne Fessenden Slater, for Appellee.

Miller, Presiding Judge.

Christopher Frazier was convicted by a jury of aggravated assault (OCGA § 16–5–21 ); armed robbery (OCGA § 16–8–41 ); hijacking a motor vehicle (OCGA § 16–5–44.1 ); theft by receiving stolen property (OCGA § 16–8–7 ); and criminal damage to property (OCGA § 16–7–23 ). During the trial, he also pled guilty to fleeing or attempting to elude a law enforcement officer (OCGA § 40–6–395 (a) ); financial transaction card theft (OCGA § 16–9–31 ); and possession of a firearm during the commission of a felony (OCGA § 16–11–106 ). The trial court denied his motion for a new trial, and this appeal followed.¹ On appeal, Frazier argues that (1) his convictions for hijacking a motor vehicle, armed robbery, and theft by receiving stolen property are mutually exclusive; (2) the evidence was insufficient to support his conviction for theft by receiving stolen property; (3) trial counsel was constitutionally deficient for failing to object to the prosecutor's comments on his right to silence; and (4) trial counsel was deficient for advising him to plead guilty to the fleeing or attempting to elude offense because there was insufficient evidence to support his conviction on this charge. After a thorough review of the record, we reverse Frazier's convictions for hijacking a motor vehicle and theft by receiving, and we remand for a new trial on these charges. We also reverse Frazier's conviction for fleeing and eluding because trial counsel was constitutionally deficient for advising him to plead guilty where the evidence was insufficient to support that charge. We affirm the convictions for aggravated assault, armed robbery, criminal damage to property, financial transaction card theft, and possession of a firearm during the commission of a felony.

We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict.

(Citations omitted.) Wallace v. State , 294 Ga.App. 159 (1), 669 S.E.2d 400 (2008).

So viewed, the evidence² shows that around midnight on February 28, 2005, the victim drove to a strip mall to the cleaners she and her husband owned. As she left her car to walk into the store, she noticed two young black men. As she returned to her car a few minutes later, the two men approached her, pointed guns at her, and demanded her keys. The men were wearing sunglasses, and one of them wore red pants. Although she gave the men her keys, one of them struck her in the head twice with his gun. The victim fell to the ground, bleeding, and the two men drove away in her Nissan Xterra with her purse, identification, checkbook, cash, and credit cards. The victim called her husband and the police.

The police issued a "be on the look out" for the Nissan Xterra, and an officer spotted the car about 40 minutes after the robbery. The officer, who was in a marked police car, followed the Xterra, but did not activate his blue lights. Nevertheless, the driver of the Xterra began to speed up, forcing the officer to quickly accelerate to 70 miles per hour to keep up. The car eventually stopped, and three men exited the car. The driver, who was wearing red pants and was later identified as Raphael Ratliff, ran. The other two men, later identified as Frazier and Jay Bradford, walked around the side of a building, where they hid their weapons. When Frazier and Bradford returned, the officer instructed them to get on the ground, and they complied.

The officer took Frazier and Bradford into custody and conducted a pat-down search. In Frazier's pocket, the officer found bullets and the victim's credit card. A subsequent search of the Xterra uncovered sunglasses in the center console, a .38 pistol, and the contents of the victim's purse. Police later searched the area around the building and found two other firearms. Police also captured Ratliff. Police notified the victim that her car had been found and asked her to identify Frazier and Bradford as the men in the car. The victim was apparently not able to identify Frazier at the scene, although she testified at trial that Frazier was one of the two men.

All three men were transported to the police station, where they were given their Miranda rights and made statements. Frazier stated that his girlfriend had driven him to the strip mall, that Bradford and Ratliff told him they had gotten the Xterra from a Korean woman, and that he knew the car was stolen when he got in it.

At trial, after the state rested its case-in-chief, defense counsel moved for acquittal on the fleeing and eluding charge.³ Nevertheless, after the close of all the evidence, Frazier entered a guilty plea to the fleeing and eluding charge, along with the charges for financial card theft and possession of a firearm during a felony.

Ratliff testified in Frazier's defense, asserting that he and Bradford committed the robbery and carjacking, and that Frazier was not involved. Frazier also testified in his own defense, explaining the events that night and denying that he was involved in the robbery. He also denied making any statements to police about the crimes. The jury convicted Frazier of aggravated assault, armed robbery, hijacking a motor vehicle, theft by receiving, and criminal damage to property, but it acquitted him of the battery charge,

1. Frazier first argues that his convictions for hijacking a motor vehicle, armed robbery, and theft by receiving are mutually exclusive because they are all based on taking the same vehicle. We agree that the hijacking and theft by receiving convictions are mutually exclusive, but conclude that the armed robbery conviction is not.

[V]erdicts are mutually exclusive where it is legally and logically impossible to convict the accused of both counts[.]... [W]here verdicts are mutually exclusive, reversal of both verdicts is required because it would be insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.

(Citations, punctuation, and footnote omitted.) State v. Springer , 297 Ga. 376, 378 (1), 774 S.E.2d 106 (2015).

Here, Frazier was convicted of armed robbery, for stealing the victim's car keys by use of a handgun; hijacking a motor vehicle, for taking the victim's car by force and violence; and theft by receiving stolen property, for retaining the car that he should have known was stolen.

(a) Hijacking and theft by receiving

Frazier's convictions for hijacking the car and theft by receiving the same stolen property are mutually exclusive. It is clear that Frazier could not be convicted of both taking and receiving the stolen property because one cannot receive stolen property unless it is first taken by someone else. Thomas v. State , 261 Ga. 854, 855 (1), 413 S.E.2d 196 (1992) ; see also Ingram v. State , 268 Ga.App. 149, 153 (5), 601 S.E.2d 736 (2004) (theft by taking and theft by retaining stolen property are mutually exclusive). In Thomas , supra, 261 Ga. at 855 (1), 413 S.E.2d 196, the Supreme Court of Georgia expressly declined to address the question of whether stealing and retaining stolen property were mutually exclusive. Id. at 855 (1), n.1, 413 S.E.2d 196 (expressing no opinion as to whether armed robbery and theft by retaining stolen property would be mutually exclusive). We must now answer that precise question.

We decline to adopt the standard suggested by the State—that Frazier was involved in the hijacking and then later retained the car when he got back into it. Based on the Supreme Court of Georgia's analysis in Thomas , and this Court's precedent in Ingram , we conclude that Frazier could not be convicted of retaining property he had already stolen. Accordingly, Frazier's convictions for hijacking a motor vehicle and theft by receiving that same car are mutually exclusive.

(b) Armed robbery of the car keys and theft by receiving or hijacking the car

Although we conclude that hijacking and theft by receiving are mutually exclusive, the same cannot be said of armed robbery and hijacking or armed robbery and theft by receiving. We note that, in this circumstance, stealing the car keys essentially amounted to stealing the car itself because the perpetrators used the keys to hijack the car. Nevertheless, the armed robbery charge and the hijacking charge each involved a separate element as charged—the theft of different property.⁴ Thus, it was not logically or legally impossible to convict Frazier of stealing both the keys and the car. Springer , supra, 297 Ga. at 378 (1), 774 S.E.2d 106. Moreover, it was not logically or legally impossible to convict Frazier of stealing the keys and receiving the victim's stolen car. Id. Therefore, Frazier's armed robbery conviction is not mutually exclusive with either his hijacking or his theft by receiving conviction. Accordingly, we affirm Frazier's conviction for armed robbery.⁵

(c) Frazier's convictions for hijacking a motor vehicle and theft by receiving stolen property must be reversed and the case remanded for a new trial on these charges. Thomas , supra, 261 Ga. at 855 (1), 413 S.E.2d 196 ; Ingram , supra, 268 Ga.App. at 153 (5), 601 S.E.2d 736 ; Camsler , supra, 211 Ga.App. at 826, 440 S.E.2d 681. Nevertheless, the evidence cited above was sufficient to convict Frazier of hijacking (OCGA § 16–5–44.1 (b) ). Moreover, as discussed below, the evidence was sufficient to convict Frazier of theft by receiving stolen...