Harris v. State

• Decision Date: 30 May 2013
• Docket Number: Nos. A13A0808,A13A0809.,s. A13A0808
• Citation: 322 Ga.App. 87,744 S.E.2d 82
• Parties: HARRIS v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 87

744 S.E.2d 82

HARRIS

v.The STATE.

Nos. A13A0808, A13A0809.

Court of Appeals of Georgia.

May 30, 2013.

David D. Marshall, for appellant.

Layla Hinton Zon, Dist. Atty., Melanie McCrorey Bell, Asst. Dist. Atty., for appellee.

BOGGS, Judge.

Rodney Harris was charged in one indictment with armed robbery, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and carrying a concealed weapon, arising out of a May 28, 2009 incident. In a second indictment, Harris was charged with armed robbery, aggravated assault, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, carrying a concealed weapon, obstruction of an officer, and possession of less than an ounce of marijuana, arising out of a June 3, 2009 incident. At the end of a trial on both indictments, a jury found Harris guilty on all counts. Following the denial of his motion for new trial and amendments thereto, Harris now appeals, contending that the trial court erred in limiting his counsel's cross-examination of a witness and in sentencing him as a recidivist. He also asserts that he was denied the effective assistance of counsel. Having reviewed these claims, we find no error and affirm.

Construed in favor of the verdict, the evidence reveals that on May 28, 2009, two armed men entered a BP convenience store, pointed their weapons at the clerk and ordered him to give them the money from the cash register. After the clerk complied, the two men “ran out the door.” Two days after the robbery, an investigator presented the clerk with a photographic lineup of six individuals. The clerk identified Harris as the robber who “cuss[ed]” him and took the money.

On June 3, 2009, two armed men wearing black or gray “hoodie” sweatshirts, entered a Citgo convenience store, pointed guns at the clerks, and ordered one of them to “open the register and give them the money.” A woman waiting outside for her husband saw the men, one carrying a gun, come out of the convenience store, and observed them get into a dark-colored SUV. The woman followed the SUV as she called police.

Police responded to the scene and executed a stop of the SUV. Harris, the front seat passenger, and another occupant of the vehicle fled. The driver was taken into custody, and after a foot chase, Harris was apprehended. The third occupant was not found. Harris was wearing a cap and had a considerable amount of cash on his person. In the vehicle, officers found two firearms under the front passenger seat and under the rear portion of the driver's seat, a gray “hoodie” sweatshirt in the rear seat, a blue cap on the floorboard of the back seat, and a letter addressed to Harris. A small bag of marijuana was found down an embankment in the area where Harris fled. A video recording of the robbery was admitted into evidence. It depicts two armed men, one wearing a light gray sweatshirt and a tan cap, and another wearing a dark gray sweatshirt and a blue cap.

1. Harris contends that the trial court erred in “prohibiting defense counsel from fully cross-examining [a] state witness regarding photo lineup procedures.” Attached to the photographic lineup was a second page showing the dates of birth of those depicted. During counsel's questioning of the investigator concerning the birth dates, the trial court ruled sua sponte that it would not allow the line of questioning because “the date of birth[ ] read out is not truly accurate, because you don't know when the picture was taken in that person's life.” Harris argues that his right to a fair trial was prejudiced because counsel was not allowed to confirm with the investigator that he was the oldest, tallest and heaviest person among the six photographs in order to show that the lineup “could lead to tainting the victim's selection of a suspect.” The record, however, shows that the trial court ruled only that counsel could not ask the witness to state the date of birth for each person in the lineup.

Although the Sixth Amendment right to confrontation secures the right of cross-examination, the right of cross-examination is not an absolute right that mandates unlimited questioning by the defense. To the contrary, trial courts retain wide latitude to impose reasonable limits on cross-examination.... The permissible scope of cross-examination is committed to the sound discretion of the trial court, and we review a limitation of the scope of cross-examination only for abuse of discretion.

(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 796(4), 733 S.E.2d 715 (2012). Here, counsel was not prohibited from making any argument concerning the height and weight of those depicted in the lineup, and we cannot say the trial court abused its discretion in not allowing testimony concerning the birth dates on the ground it could confuse the jury because there was no indication of the ages of those in the lineup at the time the photographs were taken. See id.

2. Harris argues that the trial court erred in sentencing him as a recidivist. The record reveals that the trial court considered Harris' 1999 conviction for armed robbery, and on the armed robbery counts here sentenced him “to life in prison without parole under [OCGA § ]17–10–7(b)(2).” That Code section provides in part: “Any person who has been convicted of a serious violent felony ... and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole.” Armed robbery is listed as a “serious violent felony.” OCGA § 17–10–6.1(a)(2).

Harris argues that the State “used up” the prior 1999 armed robbery conviction when it used that conviction as the basis for the charges of possession of a firearm by a convicted felon, and could not thereafter also use the prior conviction for recidivist sentencing.¹ In support of his argument, Harris cites this court's decision in Arkwright v. State, 275 Ga.App. 375, 620 S.E.2d 618 (2005). But Arkwright is inapplicable because it involves the application of OCGA § 17–10–7(a), rather than subsection (b)(2) at issue here. Id. at 376–378, 620 S.E.2d 618. Our court held in King v. State, 169 Ga.App. 444, 313 S.E.2d 144 (1984), that the State cannot use “the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the repeat offender statute.” Id. The Georgia Supreme Court recently explained the rationale for this holding: “the application of OCGA § 17–10–7(a) [ ²] eviscerates the sentencing range of one to five years set forth in OCGA § 16–11–131 [ (possession of a firearm by a convicted felon) ] because the trial court is forced to impose a five-year sentence.” State v. Slaughter, 289 Ga. 344, 346, 711 S.E.2d 651 (2011). In other words, the sentencing range of one to five years is eliminated by the requirement of OCGA § 17–10–7(a) that a defendant “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense.” (Emphasis supplied.) Therefore, a prior felony conviction cannot be used by the prosecution to convict for possession of a firearm by a convicted felon and to enhance a sentence for that crime under OCGA § 17–10–7(a). Id.

Contrary to Harris' argument that the prior armed robbery conviction was “used up,” this court recently held in Washington v. State, 311 Ga.App. 518, 716 S.E.2d 576 (2011) that,

[t]he rule set out in King is not founded on the idea that the defendant's possession of a firearm is “used up” by its consideration under one statute and therefore not available under the other. Rather, the reason for this narrow rule is that to hold otherwise would eviscerate the sentencing range prescribed by the legislature for possession of a firearm by a convicted felon.

Id. at 519, 716 S.E.2d 576.

Here, the trial court sentenced Harris pursuant to OCGA § 17–10–7(b)(2) which allows for sentence enhancement based upon a second conviction for a serious violent felony following a prior conviction for a serious violent felony. The court sentenced Harris as a recidivist for his convictions for armed robbery based upon his prior conviction for armed robbery. The application of OCGA § 17–10–7(b)(2) therefore could not eviscerate the sentencing range for Harris' conviction for possession of a firearm by a convicted felon, because subsection (b)(2) applies only to enhance the sentence for a subsequent conviction for a serious violent felony, and possession of a firearm by a convicted felon is not a “serious violent felony” as defined in OCGA § 17–10–6.1.

Harris also relies on Wyche v. State, 291 Ga.App. 165, 661 S.E.2d 226 (2008). In Wyche, the defendant was convicted of armed robbery, kidnapping, and possession of a firearm by a convicted felon. Id. Wyche complained, as Harris does here, that the State “used up” his prior felony conviction to prove the charge of possession of a firearm by a convicted felon. Id. at 167(3), 661 S.E.2d 226. In support of the prior conviction, the state relied upon a nolo contendere plea to a charge of robbery with a deadly weapon. Id. And, as in this case, the trial court sentenced Wyche to life without parole on the armed robbery count pursuant to OCGA § 17–10–7(b)(2). In reversing Wyche's conviction for possession of a firearm by a convicted felon, our court, citing King, held that a prior conviction cannot be used to support both Wyche's recidivist sentencing and his conviction for possession of a firearm by a convicted felon, and that moreover, a nolo contendere plea could not serve as proof of a prior conviction.

Our conclusion in Wyche was incorrect. As explained in Slaughter and Washington, the rationale for the King holding is not that the prior...