Harris v. State

• Decision Date: 08 March 2021
• Docket Number: A20A2054
• Citation: 358 Ga.App. 802,856 S.E.2d 378
• Parties: HARRIS v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 802

856 S.E.2d 378

HARRIS

v.The STATE.

A20A2054

Court of Appeals of Georgia.

March 8, 2021

Jacob Dennis Rhein, for Appellant.

Layla Hinton Zon, Walter Cliff Howard, Randal Matthew McGinley, for Appellee.

Brown, Judge.

Following a bench trial, Dwayne Anthony Harris, Jr. was convicted of three counts of aggravated assault and a single count each of criminal attempt to commit armed robbery, possession of a firearm during the commission of a felony, possession of a firearm by a first offender probationer, and possession of methamphetamine. Harris now appeals from the denial of his amended motion for new trial, arguing that trial counsel's decision to concede Harris’ guilt on the charge of possession of methamphetamine constituted a structural error, requiring Harris to receive a new trial. He also asserts ineffective assistance of counsel based on counsel's decision to concede guilt on the methamphetamine charge and counsel's misunderstanding of the mens rea element of possession of a controlled substance. For reasons explained more fully below, we find no error and affirm.

On appeal from a bench trial, the defendant is no longer entitled to a presumption of innocence, and we therefore "view the evidence in favor of the factfinder's conclusion, giving due regard to the trial court's opportunity to judge witness credibility." (Citation and punctuation omitted.) Mosby v. State , 353 Ga. App. 744, 745, 839 S.E.2d 237 (2020). So viewed, the evidence shows that in the early morning hours of June 28, 2018, a female and two males were returning to the female's apartment after picking up food at Huddle House. As the trio approached the apartment, they were confronted by a man dressed in black, wearing a scarf covering his face and wielding a gun. The man pointed the gun at them and demanded, "give me everything you got." When the men responded that they did not have anything to give him, the gunman cocked the gun and waved the gun in their faces, and a scuffle between the gunman and one of the males ensued. The gunman struck the male in the head with the gun, the gun discharged, and the gunman fled the scene. The male struck on the head sustained a bleeding head wound that required treatment at a local hospital.

Following the male's release from the hospital, he and the female victim went to the police station to give statements, during which the female told police she recognized the gunman as a man named "Block."¹ Sometime after they left the police station, dispatch received a report of an incident involving one person threatening another with a gun and a car similar to the male victim's. Fearing the male victim might be confronting his assailant, the investigating officer responded to the scene, where he found the victim, who acknowledged he had been looking for Block. He also told the officer he had found and confronted Block, but Block fled the scene in his truck, which the victim described to the officer. The officer showed the victim a picture of Harris that had been posted on Facebook, and the male victim identified Harris as the man he knew as Block.

Based on the information provided by the male victim, law enforcement canvassed the area and located Harris asleep in his truck. After placing Harris under arrest, police impounded his truck and obtained a search warrant for the vehicle. During the execution of the warrant, police found clothing, including a black shirt, a red bandana, and a gun holster but no gun. Additionally, on the floor mat next to the driver's seat, police found a small plastic bag containing a substance that resembled methamphetamine. Tests of the substance performed at the state crime lab showed that the plastic bag contained less than a gram of methamphetamine. When interviewed by police, Harris admitted that he sometimes went by the name Block, but he denied any involvement in the incident.

Based on the foregoing evidence, Harris was indicted for the crimes at issue. Against the advice of counsel, Harris waived his right to a jury trial, and the case proceeded to a bench trial. Immediately before trial, Harris declined a plea offer that would have required him to plead guilty to a single count of aggravated assault, the charges related to possession of a firearm, and possession of methamphetamine, in exchange for a ten-year sentence, with two years to be served in incarceration. Trial counsel later testified at the motion for new trial hearing that when he communicated the State's offer to him, Harris "was adamant that he couldn't take it because he couldn't come out here and admit to something he did not do."

At trial, the female victim testified that at the time of the incident, she was familiar with a man she knew as "Block" because he was an associate of the injured male victim. She further explained that during the scuffle, the gunman's face covering fell off, and she recognized him as Block. Additionally, she identified Harris in court as the assailant.

The injured male victim testified that he and Harris were friends and saw each other "all the time." And the second time the gunman spoke to him, the victim recognized the voice as belonging to Harris. He also identified Harris in court as the man who assaulted and attempted to rob him.

Harris testified in his own defense and acknowledged that some people knew him as Block. Harris also admitted that he had in the past purchased drugs from the injured male victim, but he denied ever purchasing methamphetamine from the victim. Additionally, Harris denied any involvement in the assault and attempted armed robbery. Harris also denied possessing any type of handgun and claimed that on the night in question, he had been at the residence where the male victim attempted to confront him the following day.

According to Harris, at the time of the incident, he was working as a paid informant for the Monroe Police Department, and the injured male victim, the female victim, and the female victim's brother all sold drugs. Thus, Harris theorized that the victims learned the police had asked Harris to buy drugs from the male victim and his associates as part of a sting operation. Harris further speculated that after learning of the planned sting, the victims falsely accused him of the attempted robbery, assault, and related crimes.

Harris denied ownership of the clothing found in the truck and the gun holster, explaining that the holster was in the truck at the time he and his father purchased the vehicle.² Additionally, Harris denied any knowledge of the methamphetamine found in the truck, stating that if the substance at issue was methamphetamine, it belonged to someone other than him. Harris opined that the methamphetamine could have fallen out as some unidentified person exited the truck, but "since [he] was in the truck, [he] was going to take responsibility for it."

During closing argument, defense counsel argued that the State had failed to prove beyond a reasonable doubt any crime other than possession of methamphetamine. With respect to the crime of possession, trial counsel conceded Harris’ guilt, acknowledging that the methamphetamine was found in a truck over which Harris had sole control.

Following closing arguments, the judge found Harris guilty of each of the charged crimes³ and gave a detailed explanation of the evidence on which the court based its verdict. With respect to the charge of possession, the trial court stated:

[T]he defendant and everybody acknowledges and I'm so finding that [Harris is] clearly guilty of possession of methamphetamine .... I mean, [the methamphetamine] was at his feet when [police] drove up [to his truck]. [Harris] got out of the truck, and [the methamphetamine] was found [on] the driver's side in the floorboard [and is] clearly visible in the photographs [taken at the scene and introduced into evidence].

The court sentenced Harris to 30 years, with 10 years to be served in confinement and the balance on probation. Harris then retained new counsel and filed a motion for new trial.

At the hearing on that motion, trial counsel testified that by the time of closing arguments, he felt that the trial had not gone well. He explained that neither he nor the State had anticipated the injured male victim appearing to testify as he had been "ignoring the subpoena[s]." And, trial counsel had not anticipated Harris testifying and tried to dissuade his client from doing so. Trial counsel further stated that he was not particularly concerned about the methamphetamine charge because it carried a maximum penalty of three years, and he believed that any sentence on that charge would be probated.⁴ Instead, the attorney was focused on defending against the six remaining charges, at least four of which were violent felonies. Moreover, counsel was aware that the methamphetamine charge was unrelated in any way to the more serious charges at issue. Given these facts, and given the State's evidence on possession of methamphetamine, trial counsel decided that the best chance of minimizing Harris’ prison time was to concede guilt on the drug charge and argue for acquittal or mercy on the remaining charges.

Trial counsel admitted that he did not discuss his decision to concede guilt on the charge of possession with Harris, explaining he made the decision "on the fly," after he got up and started his closing. Counsel acknowledged that at the time of trial, he did not understand that the State was required to prove not only that Harris possessed the methamphetamine, but also that Harris knew the substance in question was methamphetamine. Even knowing that the State was required to prove Harris was aware that the substance in his truck was methamphetamine, however, trial counsel still felt that conceding guilt on the methamphetamine charge presented the best possibility for lessening Harris’ time in prison. Specifically, trial counsel pointed to the evidence related to the possession charge, which showed the methamphetamine was found in...