Hartley v. State, A06A2324.

• Decision Date: 01 February 2007
• Docket Number: No. A06A2324.,A06A2324.
• Citation: Hartley v. State, 641 S.E.2d 607, 283 Ga.App. 388 (Ga. App. 2007)
• Parties: HARTLEY v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 388

641 S.E.2d 607

HARTLEY v. The STATE.

No. A06A2324.

Court of Appeals of Georgia.

February 1, 2007.

Lloyd J. Matthews, Jonesboro, for appellant.

Jewel C. Scott, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

ADAMS, Judge.

A Clayton County jury found Jerry Preston Hartley guilty of trafficking in methamphetamine.¹ On appeal, Hartley claims that the trial court abused its discretion in denying Hartley's motion for a continuance, and that Hartley received ineffective assistance of counsel. We affirm for the reasons set forth below.

Hartley was jointly indicted and tried with Thomas Mitchell Waters. The evidence presented at trial showed the following:

A Clayton County homeowner reported a suspicious vehicle parked behind his home. The police officer who was dispatched to the scene observed Waters and Hartley in or near a green Chevy Tahoe, which was later determined to have been stolen. When the officer approached the Tahoe and asked to talk to them, they ran from the Tahoe and fled the scene in a Chevy Lumina driven by Waters and owned by his girlfriend, Ginger Davis. The officer then stopped the Lumina in his patrol vehicle. He removed Waters, handcuffed him, and put him in his patrol car. As the officer returned to the Lumina, he observed Hartley reach under the passenger seat. Another officer who appeared on the scene searched the area under the passenger seat and found a black leather bag containing 99.77 grams of methamphetamine.

Waters's girlfriend, Davis, gave testimony tending to show that the Tahoe had been stolen by Chris Bentley, another friend of Waters. Davis testified that on the day in question Hartley had come over to her house with a bag containing the methamphetamine. When she saw what was in the bag, she told Waters to get Hartley out of the house. Waters and Hartley were later arrested and charged with possession of the methamphetamine and other offenses.

Waters v. State, 280 Ga.App. 566, 567, 634 S.E.2d 508 (2006).

1. Hartley contends that the trial court abused its discretion in denying his motion for a continuance. We disagree.

When the case was called to trial, Hartley's trial counsel moved for a continuance on the grounds that the Clayton County Police Department had provided her with copies of radio transmissions that she wanted to inspect before going forward. Counsel had been in possession of the transmissions for at least three days, but had not listened to them. The trial court, noting that the case had been previously continued, denied trial counsel's motion. Hartley argues that the trial court should have granted the continuance because his trial counsel was not prepared.

"All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require." OCGA § 17-8-22. Further, "[t]rial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons." (Punctuation and footnote omitted.) Gilbert v. State, 259 Ga.App. 371, 374(3), 577 S.E.2d 35 (2003). Given that Hartley's trial counsel had several days to review the transmissions before trial but did not do so, and that she characterized the information only as a "lead," the trial court was not presented with a compelling reason to continue the trial. See Hall v. State, 240 Ga.App. 356, 358(4), 523 S.E.2d 409 (1999) (trial court did not abuse its discretion in denying defendant's motion for a continuance so that his trial counsel could have more time to prepare for trial).

2. Hartley contends that he received ineffective assistance of trial counsel.

In order to prove this claim, [an appellant] must establish both that his counsel's representation was inadequate and that this prejudiced the outcome of his trial[.] The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's deficiency.

(Citation omitted.) Abernathy v. State, 278 Ga.App. 574, 580(3), 630 S.E.2d 421 (2006). "A trial court's finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous." (Punctuation and footnote omitted.) Ford v. State, 274 Ga.App. 695, 702(5)(a), 617 S.E.2d 262 (2005).

(a) In interviews before trial and on the morning of trial, Waters's girlfriend, Davis, told Hartley's trial counsel that Hartley did not know about the methamphetamine. Davis changed her story, however, when the State called her as a witness, and she testified that on the day Hartley and Waters were arrested that Hartley came into her house carrying a bag of methamphetamine.² Hartley contends that his trial counsel was ineffective in that she (i) failed to request a continuance to secure Rita Carswell and Tara Watkins as witnesses to impeach Davis's testimony, (ii) failed to request a continuance on the grounds that the State had not complied with its reciprocal discovery obligation to include Davis on its witness list, (iii) failed to request a continuance or move for a mistrial once it became clear that Davis's testimony was prejudicial to Hartley, and (iv) failed to ask for a recess to enable counsel to go to the clerk's office and obtain certified copies of Davis's previous felony convictions. We disagree because notwithstanding Hartley's claims of his trial counsel's deficient performance, Hartley cannot show harm under the second prong of the Strickland test. See Page v. State, 271 Ga. App. 541, 545(2)(c), 610 S.E.2d 171 (2005).

Hartley contends that his trial counsel should have called Carswell and Watkins as witnesses. However, Carswell's and Watkins's testimony, as proffered in the hearing on motion for new trial, does not exonerate Hartley, but tends only to impugn Davis's credibility and, in Carswell's case, to rebut Davis's contention that Hartley entered Davis's house. Further, Davis's testimony was not the primary evidence connecting Hartley to the methamphetamine. Police found a substantial quantity of methamphetamine under the seat where Hartley was riding as a passenger, and a police officer saw Hartley reaching under the seat before the drugs were discovered. According to trial counsel's testimony at the hearing on motion for new trial, the police videotape that was shown to the jury also showed Hartley moving around "up under" that seat. Even if Carswell and Watkins had testified and brought Davis's credibility into additional question, their testimony would have done nothing to rebut the remainder of the State's case. Accordingly, Hartley cannot show that there was a reasonable probability that the outcome of the trial would have differed if his trial counsel had called Carswell and Watkins as witnesses. See Page v. State, 271 Ga.App. at 545(2)(c), 610 S.E.2d 171 (where strong evidence of appellant's guilt was uncontradicted by testimony proffered by witnesses at the hearing on ...