Pardo v. State

• Decision Date: 07 November 1994
• Docket Number: No. A94A2451,A94A2451
• Citation: Pardo v. State, 450 S.E.2d 440, 215 Ga.App. 317 (Ga. App. 1994)
• Parties: PARDO v. The STATE.
• Court: Georgia Court of Appeals

Page 440

450 S.E.2d 440

215 Ga.App. 317

PARDO v.The STATE.

No. A94A2451.

Court of Appeals of Georgia.

Nov. 7, 1994.

Reconsideration Denied Nov. 22, 1994.

Certiorari Denied Feb. 23, 1995.

Gordon E. Billheimer, Jr., Marietta, for appellant.

Thomas J. Charron, Dist. Atty., W. Thomas Weathers III, Amy H. McHesney, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Orlando Pardo appeals his judgment of conviction of aggravated assault and armed robbery.He enumerates 12 errors.Held:

1.Mary Case, a bookkeeper for a local Winn-Dixie store, made an in-court identification and a pretrial photographic line-up identification of appellant as the person who pointed a pistol at her and robbed her of between $1,000 and $3,000 of Winn-Dixie money.Greg Long, a Winn-Dixie assistant manager, made an in-court identification of appellant as the person whom he followed out of the store and who pointed a .357 magnum pistol at him, cocked the hammer, and shot at him.Police officers testified as to the circumstances surrounding appellant's arrest when he attempted a few hours later to run to and enter a motor vehicle parked in the vicinity of the crime scene.On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737.Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of aggravated assault and armed robbery of which he was convicted.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2.Assuming without deciding that the testimony of the officer regarding whether he would first put on larger or smaller britches if he were to put on both pair together was speculative, and the door to such inquiry had not been opened by appellant; nevertheless, any resulting error would be harmless as it would be highly probable that such error would not have contributed to the jury's verdict in view of the overwhelming evidence of appellant's guilt.Alexander v. State, 263 Ga. 474, 476(2)(c), 435 S.E.2d 187.

3.By affirmatively expressing no objections to the trial court's closing charge to the jury and by failing to reserve his right to object on motion for new trial or on appeal, appellant waived any claim of charging error on appellate review.Accordingly, the error asserted in appellant's fifth enumeration is not before us on appeal.Leavitt v. State, 264 Ga. 178(3), 442 S.E.2d 457.

4.Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.Santone v. State, 187 Ga.App. 789, 792, 371 S.E.2d 428.Appellant's ninth enumeration is without merit; appellant has failed to show the trial court abused its discretion, under the attendant circumstances, by excluding appellant's testimony as to what a third party told him regarding what mechanical problem existed with appellant's rental car.In this regard, appellant subsequently was allowed to testify that the third party"pointed to me to clean the pole of the batteries."Moreover, appellant's counsel acquiesced in the ruling of the trial court and failed to express any affirmative reason on the record for his attempt to introduce the third party's statements.Additionally, even assuming error had occurred as contended, it would have been harmless.Alexander, supra.

5.Appellant testified and denied that he committed the offenses.The State cross-examined appellant, over objection, as to why he had failed to subpoena any of the people whom he testified had witnessed him swimming earlier and who had invited him to join their party, and why he had failed to have any of them appear in court in his behalf.This was not error.The State was entitled to a thorough and sifting cross-examination of appellant(OCGA § 24-9-64) as to why these persons were not present in court to testify in his behalf; the State is permitted to bring such relevant evidence to the attention of the jury from which it can permissibly draw such reasonable inferences as it deems appropriate, regarding the defendant's failure to produce a witness whom he has directly or indirectly claimed could support in whole or in part the theory of his defense.Pritchard v. State, 160 Ga.App. 105, 107(4), 286 S.E.2d 338;Workman v. State, 137 Ga.App 746, 747(3), 224 S.E.2d 757;seeJohnson v. State, 202 Ga.App. 590(1), 415 S.E.2d 189(dictum);see alsoShirley v. State, 245 Ga. 616, 617(1), 266 S.E.2d 218.Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822, a case wherein the appellant did not testify, is distinguishable.

6.Appellant filed a motion for new trial arguing, inter alia, that the two attorneys who represented him at varying stages prior to his conviction were both inadequate.The trial court conducted a hearing as to this claim and ultimately denied the motion for new trial.As to the inadequacy of counsel claim, the trial court held: "A reasonable probability does not exist that the result of the proceeding, or verdict, would have been different, even if the court did find that counsel's performance was deficient."" 'Georgia has adopted the two part test for effectiveness set forth in Strickland v. Washington, 466 U.S. 668(104 SC 2052, 80 LE2d 674). . . .[D]efendants seeking to show that their counsel was ineffective must show: 1) their counsel's performance was deficient and 2) that the deficient performance prejudiced the defense.'[Cits.] The failure to establish either element of the test will result in the denial of defendant's claim of ineffective counsel."Scapin v. State, 204 Ga.App. 725, 420 S.E.2d 385.Moreover, an appellant must overcome "the strong presumption that the representation was effective."Mason v. State, 199 Ga.App. 691, 693(2), 405 S.E.2d 747.The facts of this case are distinguishable from those in Cochran v. State, 262 Ga. 106, 108(2)(b), 414 S.E.2d 211 where there existed a "total failure of trial preparation."Pretermitting whether the performances of appellant's counsels were deficient, within the meaning of Strickland, supra, is whether such performances prejudiced appellant's defense by creating a reasonable probability that, but for counsels' unprofessional errors, the result of the proceedings would have been different.Hand v. State, 205 Ga.App. 467, 469(2), 422 S.E.2d 316.The trial court concluded that this second prong of the Strickland test had not been met.Appellant has failed to establish that this finding by the trial court was clearly erroneous." 'A trial court's finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.' "Scapin, supra, 204 Ga.App. at 725, 420 S.E.2d 385;accordHand, supra, 205 Ga.App. at 470, 422 S.E.2d 316.Appellant's fourth enumeration of error is without merit.

7.Appellant's contention that the trial court erred by allowing and accepting prosecution's incorrect argument that appellant was guilty of the crime of burglary is without merit.First, appellant failed to object timely to the descriptive statement of appellant's arrest and conviction given by the State.This issue is not preserved for appellate review as appellant failed to pose a timely objection on these specific grounds at trial.See generallyMundy v. State, 259 Ga. 634(5), 385 S.E.2d 666.Secondly, review...