Jaheni v. State, A07A0193.
| Decision Date | 08 May 2007 |
| Docket Number | No. A07A0193.,A07A0193. |
| Citation | 285 Ga. App. 266,645 S.E.2d 735 |
| Parties | JAHENI v. The STATE. |
| Court | Georgia Court of Appeals |
Barbara Barnett Claridge, Augusta, for appellant.
Daniel J. Craig, District Attorney, Madonna Marie Little, Assistant District Attorney, for appellee.
Following a jury trial, Sophonias Othello Jaheni was convicted of armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime. The trial court granted his motion for out-of-time appeal. On appeal, Jaheni contends that his convictions violated his double jeopardy rights under the United States Constitution and Georgia law. He also alleges that he received ineffective assistance of counsel and challenges the admission of certain evidence. For reasons that follow, we affirm.
On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence.1 So construed, the evidence shows that on December 1, 1997, Horace Moore went to a grocery store on Wrightsboro Road at approximately 10:00 p.m. As he was putting his groceries into his automobile, a man approached him, held a gun to his head, and pushed him into the vehicle. The assailant also entered the vehicle and forced Moore into the passenger seat. After demanding Moore's keys, the attacker started the car, and Moore jumped out, injuring his head, elbow, and knees. The assailant sped away in Moore's car and a witness summoned police.
The police immediately issued a "BOLO" ("be on the lookout") alert for Moore's black, four-door 1990 Honda Civic, providing the license plate number. The BOLO racially described the driver and indicated that he was six feet tall, 160 pounds, and wearing black clothing. A Richmond County sheriff's deputy was dispatched to the grocery store at approximately 10:25 p.m., and the officer took Moore's statement.
At approximately 10:30 p.m., Lorenzo Brunson, another Richmond County patrol officer, observed a vehicle matching the BOLO description on Wrightsboro Road, "less than . . . five miles" from the robbery location. The vehicle turned onto another road "at a reasonably high rate of speed," and Brunson pulled in behind it. Although the vehicle was in the right turn lane, the driver improperly proceeded through the intersection when the traffic light turned green. After Brunson activated his emergency lights, the driver accelerated and drove through two red lights. With Brunson in pursuit, the driver made several turns before stopping in Columbia County, where he exited the vehicle and ran into the woods. Additional officers responded, and Jaheni was captured shortly thereafter. Moore, who was transported to the scene, identified Jaheni as his assailant.
Jaheni was taken into custody at the scene, and the police also issued traffic citations to him for driving with a suspended license, failure to obey a traffic control device, attempting to elude a police officer, and reckless driving. The solicitor issued an accusation for the traffic offenses, and Jaheni pled guilty to those charges on December 17, 1997.
On January 6, 1998, a Richmond County grand jury returned a true bill of indictment, charging Jaheni with armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a felony. At trial, Jaheni testified that he entered Moore's car in the store parking lot at Moore's request. Jaheni stated that after Moore asked him to perform oral sex, Jaheni punched him in the head, and Moore exited the vehicle. According to Jaheni, he drove away in Moore's car because he "[did not] know if the man was going to shoot [him]" and "as a sign of retribution." The jury apparently found Jaheni's testimony incredible and found him guilty of all counts of the indictment.
1. Jaheni contends that because he pled guilty to traffic offenses in state court, his subsequent prosecution for the felonies in superior court subjected him to double jeopardy, thus violating his rights under the Fifth and Fourteenth Amendments to the United States Constitution. We disagree. As set forth in Blockburger v. United States,2 "successively charged offenses are separate for purposes of double jeopardy only if proof of each offense requires proof of some element or fact which proof of the other does not."3 A review of the crimes and offenses with which Jaheni was charged reveals that the felony charges involve entirely separate elements than the traffic offenses.
Jaheni was charged with the following felony offenses: armed robbery; hijacking a motor vehicle; kidnapping; and possessing a firearm during the commission of a crime. "A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon."4 "A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so."5 A person commits the offense of kidnapping when he "abducts or steals away any person without lawful authority or warrant and holds such person against his will."6 A person who has "on or within arm's reach of his . . . person . . . a firearm . . . during the commission of, or the attempt to commit" certain enumerated felonies, including theft of a vehicle, commits the offense of possessing a firearm during the commission of a felony.7 In order to establish the traffic offenses with which Jaheni was charged, the State was required to prove that Jaheni: (1) operated a motor vehicle on a public highway when his privilege to do so had been suspended;8 (2) disobeyed an official traffic control device;9 (3) wilfully failed to stop a vehicle or attempted to elude "a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop";10 and (4) drove a "vehicle in reckless disregard for the safety of persons or property."11
"It is beyond reasonable question that [the felony offenses and traffic] offenses involve wholly different elements and facts."12 Clearly, the felony charges against Jaheni did not require proof of the same elements involved in the traffic violations, and thus the felony prosecutions did not violate his rights under the Fifth and Fourteenth Amendments to the United States Constitution.13
2. Similarly, Georgia law prohibiting double jeopardy does not preclude Jaheni's felony convictions.
(a) Georgia's statutory bar to successive prosecutions—the procedural aspect of double jeopardy—is set forth in OCGA § 16-1-7(b), which provides that "[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution."14 A second prosecution for a crime with which a defendant should have been charged under OCGA § 16-1-7(b) is barred under OCGA § 16-1-8(b)(1).15
Here, the felony charges against Jaheni did not arise from the traffic offenses to which he pled guilty in state court. Jaheni had already completed the felony offenses against Moore and driven approximately five miles away from the robbery scene when he committed the traffic violations. Indeed, "[t]he only connection between the [felony] charge[s] and the traffic offenses in this case was the fact that [Jaheni] committed the traffic offenses with the stolen vehicle."16 The traffic offenses were proved with facts that occurred after the patrol officer tried to stop Jaheni, and the elements of the felony charges were proved with the evidence regarding Jaheni's actions in the grocery store parking lot.17 And "[w]e reject any contention that when one steals a vehicle, every act however unrelated and independent which he commits while in possession of that vehicle is, by virtue of that single fact, of the same conduct and same continuing transaction as the theft of the vehicle."18 Thus, OCGA § 16-1-7(b) offers Jaheni no protection under these circumstances.19 Notwithstanding Jaheni's argument to the contrary, the admission of evidence surrounding the circumstances of his arrest, including his traffic offenses, during his felony trial does not alter this conclusion.20
(b) Jaheni further argues that his felony convictions were prohibited because the felony offenses merged with his traffic violations. Again, we disagree. The felony charges and the traffic offenses do not merge as a matter of law because they "involve different proscribed conduct," and have "distinctive elements."21 Similarly, the felony and traffic offenses do not merge as a matter of fact. Offenses merge factually under OCGA § 16-1-6(1) only if "the [S]tate uses up all the evidence that the defendant committed one crime in establishing another crime."22 Here, the felonies and the traffic offenses were proved by separate facts, and thus, the crimes do not merge as a matter of fact.23
3. Next, Jaheni contends that he received ineffective assistance of counsel because, as a result of his failure to adequately investigate the case and to object to the State's failure to turn over all discovery, trial counsel was unaware of Jaheni's previous guilty plea in state court and failed to file a plea of double jeopardy on his behalf. In order to prevail on his claim of ineffective assistance of counsel, Jaheni has the burden to show that his counsel's performance was deficient and that but for that deficient performance, there is a reasonable probability that the result of the trial or appeal would have been different.24 As set forth in Divisions 1 and 2, Jaheni's sequential prosecution for the felony charges did not subject him to...
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...to the other, and both of which could be presented to a trier of fact without disclosing evidence of the other"); Jaheni v. State , 285 Ga. App. 266, 269-270 (2) (a), 645 S.E.2d 735 (2007) ("We reject any contention that when one steals a vehicle, every act however unrelated and independent......