Leslie v. State

• Decision Date: 30 April 2020
• Docket Number: A19A0556
• Citation: 842 S.E.2d 550,355 Ga.App. 244
• Parties: LESLIE v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 244

842 S.E.2d 550

LESLIE

v.The STATE.

A19A0556

Court of Appeals of Georgia.

April 30, 2020

Shein & Brandenburg, Marcia G. Shein, Elizabeth A. Brandenburg, Leigh S. Schrope, for appellant.

Ryan R. Leonard, District Attorney, Sean A. Garrett, Assistant District Attorney, for appellee.

Gobeil, Judge.

In 2013, a jury found Tedric Leslie guilty of kidnapping and armed robbery, and the trial court imposed a total sentence of life imprisonment. Leslie appeals from the trial court's grant of his motion for an out-of-time appeal, arguing: (1) the evidence was insufficient to sustain his kidnapping conviction; (2) the application of the kidnapping statute, OCGA § 16-5-40 (b) (2) (B), violated his constitutional rights because the statute is void for vagueness;¹ (3) the trial court erred in admitting Leslie's mother's prior statement to police; (4) the trial court committed plain error in a jury charge by impermissibly shifting the burden of proof to the defense; (5) the trial court erred in failing to excuse a juror for cause; (6) the trial court erred in admitting evidence of other robberies; (7) his trial counsel rendered ineffective assistance by failing to object to inadmissible and prejudicial hearsay with respect to a confidential informant; and (8) his post-conviction counsel rendered ineffective assistance by failing to present any evidence at the motion for new trial hearing. Leslie also argues that: (9) remand to the trial court is necessary for a hearing regarding trial counsel's ineffectiveness, as well as his post-conviction counsel's failure to raise additional claims in his motion for new trial with respect to trial counsel's ineffectiveness. For the reasons that follow, we now affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Williams v. State , 333 Ga. App. 879, 879, 777 S.E.2d 711 (2015) (citation and punctuation omitted). So viewed, the record shows that on June 27, 2012, S. A. was the sole clerk on duty at Ralph's Econoflash ("Ralph's"), a convenience store located in Douglas County. At approximately 9:35 p.m., a female customer, later identified as Itoria Howard, entered the store, purchased a drink, and then left. The clerk recognized Howard as a frequent customer. After Howard left, the clerk heard the doorbell ring, and two males, later identified as Dayvon Grant ("Dayvon") and Leslie, entered the store and ran to the counter. They approached S. A., who was sweeping behind the counter. One of the men, who was holding a gun, jumped over the counter, grabbed S. A. by the neck, and threw him to the ground back over in front of the counter. During the scuffle, the gun, which the victim described as small and silver-colored, discharged.

While holding S. A. by the neck, one of the assailants then forced S. A. at gunpoint back to the cash register behind the counter and told him to "open the f----ing register." The victim believed that the assailant was "going to shoot [him] with the gun." S. A. opened the register and then was forced to the ground again and held at gunpoint, while the other assailant grabbed the money from the cash register, which totaled approximately $3,600, and put it in a bag. The two men took the money, some cigars, and some receipts and other documents that were kept under the cash drawer, and then left the store on foot.

After the assailants left, the victim locked the door and called the police. At trial, the victim described one of the assailants is tall with a slim build, and the other man as "kind of short." Both men wore dark clothing, had covered their faces with torn pieces of clothing, and wore gloves. Police later located the bullet fired from the gun during the course of the robbery inside the Ralph's, but not the gun itself.

Less than two months after the Ralph's robbery, on August 8, 2012, an armed robbery occurred at a GameStop retail store. Surveillance video acquired from the businesses adjacent to the GameStop showed Dayvon, Sabor Grant ("Sabor"), and Luvonne Tarver² in the vicinity of the GameStop mere minutes before the robbery. Employees from one of the adjacent businesses identified Dayvon, and informed police that he was often seen with his girlfriend, Howard, the same woman who had purchased a drink in Ralph's just before the armed robbery at that establishment.

Two days later, on August 10, 2012, just before 10:00, law enforcement responded to reports of an armed robbery at the Dollar General store involving three males. A responding officer noticed a BMW driving away from the scene of the Dollar General with a male at the wheel and at least two other passengers in the vehicle. The officer attempted to intercept the vehicle, but the BMW failed to stop. The car eventually crashed into another vehicle before coming to a stop. While the vehicle was still in motion, the occupants jumped out of the car and started running. Officers apprehended two of the occupants—a female, identified as Tarver, and the driver, a male later identified as Sabor. The Douglas County Sheriff's Office processed the BMW pursuant to a search warrant and recovered several items: pieces of clothing, including fabric cut from t-shirts; a driver's license belonging to Sabor; a social security card and birth certificate belonging to Dayvon; a purse and wallet; and a .22 caliber revolver. The revolver contained four live rounds and one spent cartridge. Officers later established that the bullet recovered at the scene of the Ralph's robbery was fired from the revolver found inside the BMW. Analysis of the firearm failed to yield any fingerprints. Police also recovered two blue synthetic rubber gloves in the front driver side floorboard of the BMW. The clothing items and documentation recovered from the BMW led to the "photo development" of Dayvon, Sabor, and Tarver as suspects in the armed robberies. Leslie was not a suspect at that time.

Based on information gathered from the GameStop and Dollar General robberies, officers issued an arrest warrant for Dayvon. A search of Howard's home, where Dayvon had been staying, revealed the bag used in the Ralph's robbery, receipts and other documents taken from the Ralph's cash register, and clothing worn by the assailants as depicted on the Ralph's surveillance video. Both Dayvon and Howard were arrested. Following their arrests, the police received an anonymous tip via email that the second male seen on surveillance footage of the Ralph's robbery was Leslie. Officers then compared a photograph of Leslie to the suspect seen on video at Ralph's and determined it was the same person.

Based on the foregoing, a grand jury returned an indictment charging Leslie with armed robbery of the Ralph's store, and kidnapping of S. A., the Ralph's store clerk. Officers then executed a search warrant for the residence of Patricia Batiste (Leslie's mother), which was Leslie's last known address. Leslie later turned himself in to police.

At trial, the store clerk victim testified about the robbery at Ralph's, and surveillance video recovered from the store was played for the jury. Howard,³ who was 17 years old and a senior in high school at the time of the Ralph's robbery, testified that she had been dating Dayvon for about two years in June 2012. Howard met Leslie through Dayvon. Howard described Dayvon as 6’1" and slim, while Leslie was shorter with a medium build. On the afternoon of June 27, 2012, Howard, Dayvon, and Dayvon's cousin, Shakur, were at Leslie's house. The group discussed robbing Ralph's, where Howard was a frequent customer. They planned to cover their faces with cloth torn from an old t-shirt and cover their hands with gloves. The plan was for Howard to enter the store to check on how many people were inside, and then call Shakur, the designated getaway driver, to let him know that the coast was clear for Dayvon and Leslie to proceed. Dayvon's role in the plan was "kind of the tough-guy role, the-one-in-charge person[,]" and Leslie was "mainly supposed to get the money." Howard confirmed that the gun recovered from the BMW was Dayvon's gun, which he had with him on June 27, 2012. Leslie purchased the bullets for the gun at Walmart on June 27, the same day as the robbery at Ralph's, because Dayvon was not old enough to purchase ammunition. The BMW originally belonged to Sabor and he then gave it to Dayvon.

On the night of June 27, Howard drove her car to the Ralph's parking lot and entered the store and purchased a drink. Howard then called Shakur and told him that she was headed back home. Howard recalled that Dayvon, Shakur, and Leslie split the money taken from Ralph's.

Leslie's mother, Batiste, testified that after she learned that an indictment had been issued for her son charging him with armed robbery, she contacted Leslie, who was in Texas at the time, and she then drove out and brought him back to Georgia. Leslie ultimately turned himself in to police.

At the close of the State's evidence, Leslie moved for a directed verdict, which the trial court denied. The jury ultimately convicted Leslie of kidnapping and armed robbery. The trial court sentenced Leslie to a term of life imprisonment for his armed robbery conviction, and a twenty-year term for the kidnapping conviction, to serve ten, to run concurrently. Leslie then filed a motion for new trial. Following the appointment of post-conviction counsel, Leslie filed an amended motion for new trial, in which he raised several claims of ineffectiveness of trial counsel. Following a hearing, the trial court denied Leslie's motion. Leslie then filed a pro se notice of appeal, and newly appointed appellate counsel later filed an amended notice of appeal. We dismissed the appeal, finding that Leslie's pro se notice of appeal was...