Martin v. State, S07A0452.

• Decision Date: 26 March 2007
• Docket Number: No. S07A0452.,S07A0452.
• Citation: 281 Ga. 778,642 S.E.2d 837
• Parties: MARTIN v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 778

642 S.E.2d 837

MARTIN v. The STATE.

No. S07A0452.

Supreme Court of Georgia.

March 26, 2007.

William J. Mason, Columbus, for Appellant.

John Gray Conger, Dist. Atty., Larae Dixon Moore, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Cassandra Smith was killed in Columbus-Muscogee County on June 23, 2002, when she was struck by a bullet which entered her back and traveled through her body, fracturing a vertebrae and perforating her aorta and her heart. Appellant Armundoe Martin was arrested several hours after the shooting, and was convicted of felony murder (aggravated assault), possession of a firearm during the commission of a crime and, in a bifurcated trial, possession of a firearm by a convicted felon. ¹

1. Ms. Smith suffered her fatal injury while attending a party at which a fight escalated into gunfire. Appellant was identified by a witness as a party-goer who was struck by another man and then grabbed a gun from another person who had been firing the gun "up in the air." The witness testified others ran toward a street intersection when appellant obtained the gun. The witness, who denied at trial that she had seen appellant shoot the gun in the direction of where the victim was found, admitted she had given police a statement the day of the shooting in which she said she had seen appellant fire the weapon toward the area where the victim was struck. Another witness who testified he saw appellant get into a fistfight but did not see appellant with a gun, admitted he, too, had given a statement to police the day of the shooting. The officer who took the statement testified the witness told him he had seen appellant shoot a gun into a group of people.

In the second portion of the bifurcated trial, the State introduced into evidence certified copies of a December 1997 indictment charging appellant with possession of cocaine with intent to distribute, the sentence he received after entering a negotiated guilty plea, and the transcript of the guilty plea hearing held in March 1998.

The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of felony murder, with aggravated assault as the underlying felony, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Broussard v. State, 276 Ga. 216(1), 576 S.E.2d 883 (2003) (person firing gun into a crowd of people guilty of murder). Contrary to appellant's assertion, the evidence presented by the State consisted of more than appellant's mere presence at the scene of the crime.

2. Appellant contends the trial court erred when it permitted the State to impeach a defense witness by means of her 1981 plea of nolo contendere to a charge of child cruelty. At trial, the trial court overruled counsel's objection that use of the nolo plea should not be allowed because the matter might have been expunged from the witness's record. On appeal, appellant contends Pitmon v. State, 265 Ga.App. 655(2), 595 S.E.2d 360 (2004), prohibits the use of a nolo plea to impeach a witness in a criminal trial.

Appellant's failure to make an objection based on this ground at trial constitutes waiver of the issue since "`[r]eversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.' [Cit.]." Tate v. State, 253 Ga.App. 723(1), 560 S.E.2d 303 (2002). Appellant asserts the issue was preserved for appellate review because it was raised in the amended motion for new trial. However, Georgia "has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error." State v. Larocque, 268 Ga. 352, 353, 489 S.E.2d 806 (1997). "The purpose of requiring a timely objection is to avoid placing improper information before the jury. [Cit.]. Removing from a jury's consideration evidence it has heard is difficult at best and well nigh impossible after it has had time to sink in...." Sieveking v. State, 220 Ga.App. 218(2), 469 S.E.2d 235 (1996). Inasmuch as appellant's objection set forth in his amended motion for new trial was not a contemporaneous objection, it did not preserve the issue for appellate review.

3. Appellant maintains he received ineffective assistance of counsel at trial because trial counsel: (A) failed to object in the second portion of the trial to the admission of evidence of appellant's prior conviction which appellant asserts was the result of a guilty plea that had not been preceded by informing appellant of the rights he was waiving by pleading guilty; and (B) failed to object to the use of a nolo plea to impeach a witness on the ground that such a plea cannot be used to impeach a witness.

In order to succeed on a claim of ineffective assistance of counsel, appellant must show that counsel's performance was deficient and that, but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brooks v. State, 281 Ga. 514 (6), 640 S.E.2d 280 (2007). To show deficient performance, a defendant "must overcome the `strong presumption' that counsel's performance fell within a `wide range of reasonable professional conduct,' and ... [t]he reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. [Cit.]." White v. State, 281 Ga. 276(6), 637 S.E.2d 645 (2006).

A. In the second portion of the bifurcated trial, the State proved appellant's status as a convicted felon by means of certified copies of an indictment charging him with possession of cocaine, the transcript of his plea of guilty to the charge, and the sentence imposed as a result. Appellant asserts trial counsel performed deficiently when he failed to challenge the validity of the underlying felony conviction on the ground that appellant had not been advised of the rights he was waiving when he entered his guilty plea. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, this Court, following the lead of the United States Supreme Court in Lewis v United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), has ruled that one charged with possession of a firearm by a convicted felon may not mount a successful collateral attack on the prior felony conviction that serves as the predicate offense since OCGA § 16-11-131(b) clearly prohibits all convicted felons from possessing a firearm until they are pardoned from their felony convictions or otherwise relieved of the disability (OCGA § 16-11-131(c), (d)), and no exception is made for an invalid outstanding felony conviction. Scott v. State, 250 Ga. 195, 198, 297 S.E.2d 18 (1982) (uncounseled prior felony conviction can serve as the predicate felony for a subsequent conviction for possession of a firearm by a convicted felon). See also State v. Williams, 392 So.2d 448 (La. 1980); U.S. v. Elliott, 128 F.3d 671 (8th Cir.1997); and U.S. v. Steverson, 230 F.3d 221 (6Th Cir.2000) (all of which hold that a defendant's Boykin-based collateral attack on underlying felony supporting charge of possession of a firearm by a convicted felon is foreclosed by the Supreme Court's decision in Lewis v. U.S.). Our decision in Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999), is distinguishable in that it involved a collateral attack on a prior conviction being used for purposes of recidivist punishment. See Lewis v. U.S., supra, 445 U.S. at 59, 100 S.Ct. 915 (noting U.S. Supreme Court's decisions prohibiting use of uncounseled...