Hammond v. The State, A09A1701.

• Decision Date: 07 September 2010
• Docket Number: No. A09A1701.,A09A1701.
• Citation: 303 Ga.App. 176,692 S.E.2d 760
• Parties: HAMMONDv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 176

692 S.E.2d 760

HAMMONDv.The STATE.

No. A09A1701.

Court of Appeals of Georgia.

March 26, 2010.

Certiorari Granted Sept. 7, 2010.

Nathanael A. Horsley, for appellant.

Lee Darragh, Dist. Atty., Wanda L. Vance, Asst. Dist. Atty., for appellee.

BARNES, Judge.

Timothy Jackson Hammond appeals his convictions for one count each of sexual battery, aggravated sodomy, kidnapping with bodily injury, false imprisonment, and two counts of aggravated assault, and two counts of burglary. He contends his defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court erred by failing to give his requested charge on asportation, and the trial court erred by denying his motion for new trial because the evidence on the kidnapping charge did not meet the standards adopted in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008). Finding no error, we affirm.

The principles applicable to appellate review of a criminal conviction are stated in Taylor v. State, 226 Ga.App. 254, 255, 485 S.E.2d 830 (1997). Viewed in the light most favorable to the verdict, the evidence shows that Hammond broke into his ex-wife's home, threatened to kill her with a knife, had sex with her, committed oral sodomy, moved her to various rooms in her house, and held her captive until she finally escaped. She ran to a neighbor's house, and had the neighbor call the police. Hammond was apprehended at the victim's house, and gave a statement to the police in which he admitted to breaking into the victim's home, and holding her without her consent.

1. Hammond contends his defense counsel was ineffective because she failed to assert Hammond's right to a two-hour closing argument. Hammond bases his claim on OCGA § 17-8-73, which establishes the time limits on closing argument in criminal cases: “In felony cases other than those involving capital felonies, counsel shall be limited in their closing arguments to one hour for each side. In cases involving capital felonies, counsel shall be limited to two hours for each side.” Because the maximum punishment for kidnapping with bodily injury includes the death penalty, OCGA § 16-5-40(d)(4), Hammond was entitled to a two-hour closing argument, and asserts that his defense counsel was ineffective for failing to assert his right.

Under the law of this State, to prevail on his claim of ineffective assistance of counsel Hammond was required to show that his defense counsel rendered deficient performance and that actual prejudice resulted from that deficient performance.

Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel's performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court's findings of fact unless clearly erroneous and independently apply the law to those facts.

(Citation and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266(VI), 587 S.E.2d 613 (2003). Our Supreme Court addressed this precise issue in Hardeman v. State, 281 Ga. 220, 635 S.E.2d 698 (2006). In Hardeman, like this case, the defense attorney was defending against an allegation of kidnapping with bodily injury and the trial court limited counsel's closing argument to one hour despite the provisions of OCGA § 17-8-73. Also, like Hardeman, counsel in this case did not object when the trial court limited his argument. In Hardeman the court said:

One of the applicable principles of law in [a capital] case is that defense counsel is entitled to two hours of closing argument. OCGA § 17-8-73. The right to make closing argument is an important one, the abridgement of which is not to be tolerated. Ricketts v. State, 276 Ga. 466, 470(4), 579 S.E.2d 205 (2003). However, the record shows that Hardeman's lawyer was under the misimpression that he was entitled to only one hour to make his argument and, thus, failed to object when, fifty-five minutes into his argument, the trial court erroneously informed him that he had five minutes left. Accordingly, the attorney was unaware of an important statutory right available to the defense and waived that right through inadequate preparation, rather than as a matter of trial tactics. Under these circumstances, Hardeman met his burden showing the deficient performance prong of his ineffectiveness claim.

Hardeman, supra, 281 Ga. at 221, 635 S.E.2d 698. As in that case, Hammond's defense counsel was unaware that the charge of kidnapping with bodily injury entitled Hammond to a minimum of two hours in closing argument. Consequently, when, at the end of one hour, the trial court told her that her time was up, she did not object and did not insist upon the time to which Hammond was entitled. Therefore, Hammond also has met his burden of showing deficient performance. Although satisfying the first Strickland prong, to be entitled to a new trial Hammond must satisfy both prongs of the Strickland test. Buttram v. State, 280 Ga. 595, 599(15), 631 S.E.2d 642 (2006); Dickens v. State, 280 Ga. 320, 321(2), 627 S.E.2d 587 (2006).

On this point Hardeman states further that the denial of the right to a two-hour closing created a rebuttable presumption that the defendant was harmed, but the second prong of an ineffectiveness claim requires that Hammond show that he was prejudiced. Hardeman, 281 Ga. at 221, 635 S.E.2d 698. Consequently,

[w]hen the issue is raised by trial counsel and overruled by the trial court, the focus of post-conviction inquiry is on whether the trial court erred and, if so, whether the defendant was harmed. However, when no question about the length of argument is raised below and the issue is only raised after conviction in the context of an ineffectiveness claim, resolution turns on an examination as to whether counsel's performance was deficient and, if so, whether the defense was prejudiced.

Id. Thus, Hammond's burden was to show a reasonable probability of a different outcome of his trial. Schofield v. Gulley, 279 Ga. 413, 416(I)(A), 614 S.E.2d 740 (2005). The court in Hardeman explained the issue in this manner:

[T]he concept of prejudice in the Sixth Amendment sense is not the equivalent of the common law notion of harm.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, [cit.], and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the showing of such an error is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

Strickland v. Washington, supra at 693(III)(B), 104 S.Ct. 2052. “When a defendant challenges a conviction, the 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, supra at 695(III)(B), 104 S.Ct. 2052.

(Punctuation omitted.) Hardeman, supra, 281 Ga. at 222, 635 S.E.2d 698. Our Supreme Court found only three instances ¹ in which the United States Supreme Court had held that a defendant would be relieved of his burden to establish prejudice stemming from counsel's errors: “(1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel who labors under an actual conflict of interest that adversely affects his performance.” (Citation and punctuation omitted.) Id. Thus, relying upon Strickland, supra, 466 U.S. at 693(III)(B), 104 S.Ct. 2052, the court held that in situations when defense counsel's closing was improperly limited, defendants like Hardeman and Hammond were required to show affirmatively that they were prejudiced by their counsel's performance. Hardeman, supra, 281 Ga. at 222, 635 S.E.2d 698.

Thus, the court held that in Hardeman,

[n]one of those circumstances in which prejudice is presumed is present in this case. Instead, here, as in Ricketts v. State, supra at 471(4), 579 S.E.2d 205, the “right to make a closing argument was not completely abridged.” See also Ricketts v. State, supra at 472(5), 579 S.E.2d 205, citing Division 4 as authority for the proposition that, “assuming arguendo, that counsel was deficient for failing to challenge the one-hour limitation, there was no prejudice or harm.” In fact, since the attorney was unaware of his statutory right to an additional hour to argue, he presumably tailored his argument for presentation in one hour. There is no indication that, as a result of the time limit, the lawyer failed to argue a critical point or that the argument that he did present was not as reasonably effective as it otherwise would have been.

Hardeman, supra, 281 Ga. at 223, 635 S.E.2d 698. Although Hammond argues that his attorney had not prepared for a one-hour closing, the evidence shows that she knew before argument the trial court would limit closings to one hour, and when counsel did not end her argument within one hour, the trial court gave her an additional two minutes to conclude. Also, even though she testified that her failure to request more time for her closing argument was not strategy, counsel stated before closing that she would take at least 30 minutes, but that she did not want the jury to be uncomfortable. Thus, it is far from likely that Hammond's counsel would have taken the full two hours even if the trial court had permitted her to do so.

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