Lupoe v. State

• Decision Date: 03 November 2008
• Docket Number: No. S08A0833.,S08A0833.
• Citation: 669 S.E.2d 133,284 Ga. 576
• Parties: LUPOE v. The STATE.
• Court: Georgia Supreme Court

669 S.E.2d 133

284 Ga. 576

LUPOE v. The STATE.

No. S08A0833.

Supreme Court of Georgia.

November 3, 2008.

Brandon Lewis, Law Office of Brandon Lewis, Norcross, for Lupoe.

Thurbert E. Baker, A.G., Benjamin H. Pierman, A.A.G., Department of Law, Bettieanne C. Hart, Deputy D.A., Paul L. Howard, Jr., D.A., Atlanta, for the State.

MELTON, Justice.

Following a jury trial, Vincent Lupoe was found guilty of aggravated assault, theft by taking, and three counts of felony murder based on his actions in beating Tyler Kane with a pistol and running over Kane with a car, resulting in Kane's death.¹ On appeal, Lupoe contends that the evidence was insufficient to support guilty verdicts on one of the felony murder counts, one of the aggravated assault counts, and the robbery by force count; that the trial court erred in denying his requests to charge on vehicular homicide and reckless conduct; and that his trial counsel was ineffective. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the verdict, the evidence reveals that, on June 16, 2003, Lupoe pulled Kane out of his car, beat Kane with a pistol, stole Kane's car, and deliberately backed over Kane with the same car, killing him. Prior to the crime, Lupoe told an eyewitness to the crime that he planned on robbing Kane. This eyewitness, who had known Lupoe for several years, then saw Lupoe pull Kane from his car, pistol whip him, and then back over Kane with his car. In addition, phone records showed that Lupoe had used Kane's phone after his death. Kane died from blunt force injuries to the head, and he had a number of other injuries, some of which were consistent with a "pistol whipping." This evidence was sufficient to enable a rational trier of fact to find Lupoe guilty of all of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

2. Lupoe claims that the trial court erred in denying his requests to charge the jury on the lesser included offenses of vehicular homicide and reckless conduct. However, the record reveals that Lupoe either committed a violent robbery by intentionally beating up Kane and running him over with his car, or, as the defense theorized at trial, that other individuals committed the crime and that Lupoe accidentally ran over Kane. Where, as here, "the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense." (Citations and punctuation omitted.) Martin v. State, 268 Ga. 682, 685(7), 492 S.E.2d 225 (1997).

3. Lupoe argues that his trial counsel was ineffective for failing to (a) object to a State's witness reading aloud from a transcript during his trial testimony; (b) investigate a potential alibi witness; (c) adequately consult with Lupoe on trial strategy; (d) adequately inform Lupoe of his right to testify; (e) obtain certain certified convictions to impeach a State's witness; (f) file a pre-trial motion to challenge a State's witness' identification of Lupoe as the assailant; (g) request a charge on the grant of immunity and leniency to the State's witnesses; and (h) file a special demurrer to Count 4 of the indictment, which charged Lupoe with felony murder based on robbery by force. In order to succeed on a claim of ineffective assistance, Lupoe must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697(IV), 104 S.Ct. 2052; Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004). In reviewing the trial court's decision, "`[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

(a) The record reveals that appellate counsel did not ask trial counsel any questions at the motion for new trial hearing regarding trial counsel's decision not to object to one of the State's witnesses, Kowanish Snelson, reading aloud two sentences from his statement to police. The decision not to object "is therefore presumed to be a strategic one that does not amount to ineffective assistance." (Footnote omitted.) Ballard v. State, 281 Ga. 232, 234(2), 637 S.E.2d 401 (2006). Indeed, the trial transcript supports the idea that counsel's decision was strategic as part of trial counsel's strategy during his cross-examination of Snelson was to use specific portions of Snelson's statement against him to undermine the version of events that he presented at trial.

(b) The alleged alibi witness that Lupoe claims should have been investigated by his trial counsel did not testify at the motion for new trial hearing. Nor did Lupoe present a legally acceptable substitute for this witness' testimony to substantiate his claim that this testimony would have been favorable to his defense. Therefore Lupoe cannot meet his burden of showing ineffective assistance based on counsel's failure to call this witness at trial. Dickens v. State, 280 Ga. 320(2), 627 S.E.2d 587 (2006).

(c) Trial counsel testified at the motion for new trial hearing that he conferred with Lupoe and thoroughly discussed trial strategy with him well before trial and during the trial itself. Thus, evidence supports the trial court's conclusion that Lupoe did not meet his burden of showing ineffective assistance in this regard. See, e.g., Mitchell v. State, 279 Ga. 158(2), 611 S.E.2d 15 (2005).

(d) Similarly, the record reveals that trial counsel discussed with Lupoe his right to testify in his own defense, and that Lupoe chose not to testify after being fully informed of his right to do so. Indeed, Lupoe admitted at the motion for new trial hearing that he knew that the decision was his to make. Thus, evidence supports the conclusion that Lupoe did not meet his burden of showing ineffective assistance. Mobley v. State, 264 Ga. 854(2), 452 S.E.2d 500 (1995).

(e) There is no evidence of record in this case that certified criminal convictions actually existed with respect to any of the State's witnesses, and trial counsel testified at the motion for new trial hearing that he investigated the criminal backgrounds of all of the State's witnesses. In any event, "[h]ow to conduct cross-examination is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client." (Citation omitted.) Phillips v. State, 277 Ga. 161, 163(b), 587 S.E.2d 45 (2003). Similarly, "[s]trategic decisions regarding which defense theories to pursue ... are [also] within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance." (Citation omitted.) Smith v. State, 283 Ga. 237, 240(2)(c), 657 S.E.2d 523 (2008). Here, trial counsel's strategy was to show that several of the witnesses had the ability to cover up...