Heard v. State

• Decision Date: 10 November 2015
• Docket Number: No. A15A1439.,A15A1439.
• Citation: Heard v. State, 334 Ga.App. 399, 779 S.E.2d 415 (Ga. App. 2015)
• Parties: HEARD v. The STATE.
• Court: Georgia Court of Appeals

334 Ga.App. 399

779 S.E.2d 415

HEARD

v.The STATE.

No. A15A1439.

Court of Appeals of Georgia.

Nov. 10, 2015.

Nancee Elaine Tomlinson, Athens, for Appellant.

Layla Hinton Zon, Christopher David Sperry, for Appellee.

BARNES, Presiding Judge.

A jury convicted Antonio Heard of armed robbery, burglary, and a weapons charge following a home invasion. The trial court sentenced him to 35 years, with the first 15 to be served in custody, and denied Heard's motion for new trial. On appeal, Heard contends that the evidence was insufficient, that the trial court should have exercised its discretion and granted him a new trial, that the trial court erred in limiting the testimony of the officer who took Heard's statement and in admitting evidence of Heard's prior conviction, that his trial counsel was ineffective, and that he was denied his right to be present at all court proceedings. For the reasons that follow, we affirm.

1. On appeal, we view the trial evidence in the light most favorable to the verdict. Peoples v. State, 295 Ga. 44, 45(1), 757 S.E.2d 646 (2014). So viewed, the evidence shows that the two victims were asleep in their living room when they woke up to find two men holding guns to their heads. Neither victim was able to see either gunman's face and did not recognize their voices, which were disguised. They heard a third person ransacking the rest of the house, and one of the gunmen said the other men "came to kill." The intruders repeatedly asked where the victims' money and drugs were located, and one ripped the male victim's pants off and took $1,500 from the pockets. Another gunman took the female victim's cell phone, and then the three intruders left through the front door.

After waiting a short time, the two victims went across the street to call 911 from a relative's house. When the police came and walked through the residence with the victims, they saw that a bedroom window had been opened and there was a footprint on their bed under the window. Nothing else was taken from the house, although the kitchen cabinets and refrigerator were open and groceries littered the floor. The police found a bullet on the living room floor by one of the sofas, which had not been there before the intruders came in. Neither victim could identify any of the intruders.

A friend of the female victim who lived across the street testified that the night after the home invasion, she was playing cards with Heard when the two of them decided to get some fast food. As they waited in the drive-through line, a policeman in a patrol car pulled in line behind them. Heard pulled a wad of $20 bills and a bag of marijuana from his pocket and a gun from the front of his pants, but the police did not approach them. After they got their food, Heard and the witness drove off, but instead of going straight back to the witness's house, Heard drove to his mother's house because, he said, he "had to run and get something."

The witness waited in the car for about ten minutes until Heard returned and he began driving back to the witness's house. As he drove, Heard told the witness that he and three other men he identified by name had robbed the victims, then asked the witness how close she was to the female victim. When the witness said she was very close to the victim, Heard ran off the road, seemingly deliberately, hit a picket fence, and drove back onto the road. He stopped the car to inspect the damage to the car's front end, and declined the witness's request to use his cell phone to call someone to come pick her up, insisting instead on driving the damaged car back to the witness's house. The following day, Heard came to the witness's house and said that if anyone asked how the car had been wrecked, she was to tell them that the male robbery victim had run them off the road. Heard said he was going to get his gun because the "word had got out by then on the streets" that he had been one of the robbers. The witness told the police about Heard's admission, and after a number of people were interviewed, Heard was arrested.

Heard waived his Miranda rights and confessed to the crime in detail, admitting that he and the other intruders had climbed through the victims' bedroom window, stepped on to the bed, held the victims at gunpoint, searched their house, and robbed them of about $1,500. Heard identified one of the other intruders as Michael Stanley and shortly afterward identified the third intruder, whose name he did not know, through a photo line-up. The police identified the third man as Rolundus Middleton, against whom charges were pending as of trial.

Upon request, Stanley voluntarily came to the police station, where he also waived his Miranda rights and confessed to the crimes. Stanley pled guilty to one count of burglary and two counts each of armed robbery and weapons charges, and his testimony in Heard's first trial, which ended in a mistrial, was consistent with his statement to the police. When Stanley testified in Heard's second trial, he denied that Heard and Middleton had been involved in the invasion. While he admitted he told the investigating officer otherwise, he said he did so only because "someone gave [the officer] a statement before I did that we were the three ... involved in the robbery, so I was going along with what the first person had made the statement saying I was involved." The State impeached Stanley with his testimony from the prior trial.

Heard testified in his defense and also explained that he confessed to the crimes because the investigating officer had threatened to arrest his mother, who had just had a procedure on her back, for terroristic threats. After the threat, Heard said, he just repeated details of what he had heard about the invasion and put himself "on the scene." He admitted he had a prior conviction for what was "supposed to be attempted burglary," to which he pled guilty.

The evidence as outlined above was sufficient for the jury to find beyond a reasonable doubt that Heard committed the offenses of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Rudison v. State, 322 Ga.App. 248, 249 –250(1), 744 S.E.2d 444 (2013).

Heard also argues that the evidence was so close that the trial court abused its discretion by failing to grant a new trial, but argues the standard of Jackson v. Virginia, which is whether any rational trier of fact could have found Heard guilty beyond a reasonable doubt.

Under OCGA § 5–5–20, a trial court may grant a new trial if it decides that the jury's verdict is contrary to the principles of justice and equity, and under OCGA § 5–5–21, a trial court may grant a new trial if the verdict is decidedly and strongly against the weight of the evidence. "When properly raised in a timely motion, these grounds for a new trial—commonly known as the ‘general grounds'—require the trial judge to exercise a broad discretion to sit as a ‘thirteenth juror.’ " White v. State, 293 Ga. 523, 524(2), 753 S.E.2d 115 (2013). Here, Heard argued that the trial court should exercise its discretion to grant a new trial, and the trial court did so, finding that the verdict was not contrary to the law or evidence, and was not inconsistent with the evidence as presented at trial. Accordingly, we find no merit to this enumeration.

2. Heard argues that during the Jackson–Denno hearing, the trial court improperly limited his examination of the police officer to whom he confessed, and that if the trial court had allowed him to impeach the officer with questions about whether he had made promises of benefit to another man, the trial court...