Issa v. State

• Decision Date: 31 January 2017
• Docket Number: A16A1495
• Citation: 796 S.E.2d 725,340 Ga.App. 327
• Parties: ISSA v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 327

796 S.E.2d 725

ISSA

v.The STATE.

A16A1495

Court of Appeals of Georgia.

January 31, 2017

Reconsideration Denied February 23, 2017

Gerard John Lupa, Decatur, for Appellant.

Paul L. Howard Jr., Dist. Atty., Atlanta, Michael V. Snow, Paige Reese Whitaker, Asst. Dist. Attys., for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Ahmed Issa on one count of conspiracy to commit armed robbery, one count of burglary, four counts of aggravated assault, three counts of attempt to commit armed robbery, three counts of false imprisonment, and one count of possession of a firearm during the commission of a felony. Issa appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting his attempt-to-commit-armed-robbery convictions and arguing that the trial court erred in (1) denying his motion for severance; (2) finding that the aggravated-assault counts were not fatally flawed; (3) improperly instructing the jury on aggravated assault; (4) denying a mistrial when a State's witness testified that Issa exercised his right to remain silent; (5) allowing the State to ask leading questions on direct examination; (6) failing to apply the rule of lenity when sentencing him as a recidivist on the attempted-armed-robbery convictions; and (7) denying his claim of ineffective assistance of counsel. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that in November of 2008, C. D. was taking accounting courses at a local college and living at a home in Roswell, which he shared with his older brother, F. D., who was attending another local college, and his younger sister M. D., who was in high school. On November 11, 2008, C. D. arrived home late after classes and went straight to bed; but a few hours later, he was shaken out of his slumber by a masked intruder brandishing a handgun. A struggle immediately ensued, and the gun fired, injuring C. D.'s finger. Nevertheless, C. D. valiantly continued to fight off the masked intruder, during which time the gun fired a second time, striking the intruder in the leg. But after a second intruder (who was also masked) entered his bedroom, C. D. desisted in his efforts to subdue the first intruder.

Down the hall, C. D.'s younger sister, M. D., awoke to the sounds of C. D. screaming and gunshots. She jumped out of bed and sprinted toward C. D.'s bedroom, but was immediately stopped by the second intruder who ordered her to lie on the floor. Meanwhile, the first (and now wounded

) intruder—who was in a considerable amount of pain—began yelling at the second intruder to shoot C. D., but M. D. begged him to spare C. D.'s life. At the same time, C. D.'s older brother, F. D.—who had also been asleep in his own bedroom on the same hall—similarly awoke to the eery sounds of fighting, gunshots, and his younger sister's screams. But as F. D. exited his bedroom and rushed toward the danger, the second armed intruder stopped him and ordered him to lie on the floor as well. The two intruders then used telephone cords to bind the hands and feet of all three siblings and dragged them into the hall.

Once the siblings were tied and lying bound in the hall, the intruders began violently kicking and hitting them while demanding to know where "the money and dope" were located. The siblings repeatedly denied having either drugs or large amounts of money, but the intruders did not believe them until C. D. revealed that the safe in his bedroom contained only documents. At this point, the first intruder begged the second intruder to leave the house so that he could seek immediate medical treatment for his wounded

leg. But instead of departing, the second intruder dragged M. D. from the hall into her bedroom, shut the door, and raped her. A few minutes later, the second intruder ceased his sexual assault of M. D. at the behest of his wounded

accomplice, who continued to complain that he was in severe pain and needed to leave.

Subsequently, the two intruders forced all three siblings downstairs and began loading electronics and other valuables from the home into C. D.'s car, with their plan being to take F. D. with them and force him to withdraw money from an ATM. But coincidentally, as the intruders had nearly completed loading C. D.'s car, fire-department vehicles arrived across the street in response to a neighbor's 911 call about possible heart issues. Seeing the flashing emergency lights, and believing that the police had been alerted to the home invasion, the two intruders fled out the back door of the home post haste and scaled a wooden fence marking the boundary of the back yard. After waiting a few minutes to make sure that the intruders had indeed left the scene, the siblings untied themselves and raced across the street to inform the fire-department personnel about the home invasion.

Upon determining that none of the siblings' injuries was life-threatening, the fire-department personnel called the police, who arrived within a few minutes and began collecting evidence, including blood from inside the home and from one of the wooden-fence slats. The siblings were then transported to a nearby hospital where an emergency-room physician treated C. D. for the bullet wound

to his finger and a cut to the back of his head, and also performed a rape-kit examination on M. D.

Because the siblings could not identify either of the masked intruders, the police detective who interviewed F. D. asked if he knew of any reason someone would want to break into his home or if he had noticed anything strange relating to their home recently. Upon considering the question, F. D. recalled that several days before the home invasion, he did, in fact, have an odd encounter with a woman whom he met over the summer but had not spoken with since that time. Her name was Destiny Forrester, and the two encountered each other in a Decatur nightclub one evening before departing for Forrester's apartment, where they then engaged in sexual relations. After that night, F. D. went out with Forrester a few more times, but ceased contacting her when it appeared that she was not interested in dating him. Then, out of the blue (and several nights before the home invasion), Forrester sent F. D. a text message at around 10:00 p.m., asking if she could come over to his house. F. D. agreed, provided her with directions, and she arrived an hour or so later. But immediately upon entering the home, Forrester seemed distant and not interested in having intimate relations, as F. D. had assumed. Instead, she was focused on looking around the home and spent an inordinate amount of time constantly reading and composing text messages. When F. D. asked with whom she was texting, Forrester claimed that it was her roommate. Shortly thereafter, she asked to see the back yard and left abruptly when F. D. refused her request.

Based on this information, the detective obtained an order for Forrester's mobile-phone records, and a review of those records showed that the person with whom she was texting on the night in question was Kenneth Trusty. Next, the detective interviewed Forrester, and she ultimately admitted that she, her boyfriend (Darius Cook), and Trusty, who was Cook's roommate, planned to rob F. D. on the night she went to his home, believing him to be a drug dealer. In addition, Forrester further admitted that she spoke to Cook and went to his apartment early on November 12, 2008, at which time she learned that Trusty and another man, whom she did not know, broke into F. D.'s home in an attempt to rob him, and that the other man was shot during the incident. With this additional information, and later after matching the blood found on one of the wooden-fence slats with a DNA sample already in CODIS,² the detective determined that the name of Trusty's accomplice was Ahmed Issa and that, mere hours following the home invasion, Issa sought and received medical treatment at Grady Hospital for a gunshot wound

to his leg.

Thereafter, the State charged Trusty, Issa, and Cook, via the same indictment, with one count of conspiracy to commit armed robbery,³ and charged Trusty and Issa with one count of burglary,⁴ one count of rape,⁵ four counts of aggravated assault,⁶ three counts of attempt to commit armed robbery⁷ (one count as to each victim), three counts of kidnapping with bodily injury⁸ (one count as to each victim), three counts of false imprisonment⁹ (one count as to each victim), two counts of possession of a firearm during the commission of a felony,¹⁰ and two counts of possession of a firearm by a convicted felon.¹¹ Issa filed a motion to sever, which was denied, and the case then proceeded to a joint trial of Trusty and Issa,¹² during which the foregoing evidence was admitted. At the trial's conclusion, the jury convicted Issa of all charges except the rape and kidnapping offenses.¹³

Subsequently, Issa obtained new counsel and filed a motion for new trial. After conducting a hearing on the matter, the trial court merged the conspiracy and attempted-armed-robbery convictions for sentencing, vacated both the burglary and possession-of-a-firearm-during-the-commission-of-a-felony convictions, but denied Issa's motion in all other respects. This appeal follows.

1. In his initial enumeration of error, Issa challenges the sufficiency of the evidence supporting his convictions generally and specifically argues that the evidence was insufficient to support his convictions on the attempted-armed-robbery charges. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.¹⁴ And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility but only decide whether "a rational trier of fact could have found the defendant guilty...