Porter v. State

• Decision Date: 07 January 2013
• Docket Number: No. S12A2045.,S12A2045.
• Citation: 736 S.E.2d 409,292 Ga. 292
• Parties: PORTER v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 292

736 S.E.2d 409

PORTER

v.The STATE.

No. S12A2045.

Supreme Court of Georgia.

Jan. 7, 2013.

Clark Coleman Adams, Columbus, for appellant.

Douglas Lee Breault, Asst. Dist. Atty., Julia Anne Fessenden Slater, Dist. Atty., Office of the District Attorney, David Allan Zisook, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, for appellee.

THOMPSON, Presiding Justice.

Appellant Thaddeus Porter was convicted of malice murder and other crimes related to the shooting death of Willie Clay.¹ His motionfor new trial was denied, and he appeals, asserting that the trial court erred by permitting the State to present evidence that a tipster was not a participant in the crimes and that trial counsel provided ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Viewed in a light most favorable to the verdict, the evidence shows that on the day of the crimes, appellant, Donovan Champion, and appellant's 12–year old “god brother” planned to rob a restaurant in the same strip mall as the dry cleaners where the victim worked. Because the rear door to the restaurant was locked, they entered the cleaners, forced the victim into the back office, and took a bag containing money and rolled coins. When the victim tried to escape, appellant hit him several times with a gun and an aluminum bat, knocking him to his knees. Appellant then fatally shot the victim. Police initially were unable to identify any suspects, but several months after the shooting they received a tip from a concerned citizen. Based on information from the tipster, appellant and Champion were arrested and charged with the crimes.

We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred by permitting a detective to testify that based on his investigation, the tipster was not a witness to or participant in the crimes.² At trial, appellant objected on the basis that the detective's testimony went to the ultimate issue. He now argues the testimony was improperly admitted to explain the detective's conduct. See Jones v. State, 290 Ga. 576, 580, 722 S.E.2d 853 (2012) (out-of-court statements may be admissible to explain an investigating officer's conduct if that conduct is a matter concerning which the truth must be found). Because appellant raises this argument for the first time on appeal, it is not preserved for appellate review. See Rucker v. State, 291 Ga. 134(2), 728 S.E.2d 205 (2012); Mitchell v. State, 290 Ga. 490(4)(a), 722 S.E.2d 705 (2012).

Even absent the procedural waiver, however, appellant cannot show his newly asserted grounds for objection would have resulted in exclusion of the challenged testimony. While appellant correctly cites authority for the proposition that only on rare occasions will the need to explain the conduct of an investigating officer justify the admission of hearsay evidence, the detective's comment on the results of his investigation was not hearsay evidence. The trial court allowed the State to ask the detective if his investigation revealed whether the tipster or his source were involved in or witnessed the crimes and the detective answered in the negative. The challenged testimony was limited to the findings of the detective's investigation and did not include or make reference to out-of-court statements made to him by the tipster.

3. Appellant contends he received ineffective assistance of counsel on several grounds. In order to prove ineffective assistance of counsel, appellant must show both that counsel's performance was deficient and that this deficient performance prejudiced his defense to a point where there was a reasonable probability that 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). We accept the trial court's findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo. Id. at 698;Head v. Carr, 273 Ga. 613(4), 544 S.E.2d 409 (2001).

(a) Appellant contends he was denied effective assistance of counsel because his attorney did not object to the detective's testimony regarding the tipster's involvement in the crimes on the ground that it was inadmissible to explain the detective's conduct. Appellant has failed to satisfy the first Strickland prong with regard to this enumeration of error inasmuch as counsel's failure to make a meritless objection cannot constitute evidence of ineffective assistance. See Division 2, supra; Hayes v. State, 262 Ga. 881(3)(c), 426 S.E.2d 886 (1993).

(b) In response to a question by defense counsel on direct examination, appellant testified he had never possessed a gun. His response allowed the State to present evidence of a previous incident during which appellant was apprehended with a loaded gun in his pocket after fleeing from police. Appellant contends counsel's performance was deficient because the question about the gun required appellant to either admit he previously possessed a gun or lie about his prior possession.

Appellant chose not to call trial counsel to testify at the motion for new trial hearing, and therefore, there is no testimony from trial counsel about decisions he made at trial. In the absence of such testimony and evidence to the contrary, the decision to ask appellant about his possession of a gun is presumed to be a strategic one that does not amount to ineffective assistance. See Mitchell, supra, 290 Ga. at 492(4)(a), 722 S.E.2d 705;Washington v. State, 285 Ga. 541(3)(a)(i), 678 S.E.2d 900 (2009); Ballard v. State, 281 Ga. 232, 234, 637 S.E.2d 401 (2006). In addition, appellant testified he thought his prior possession, committed when he was a juvenile, could not be used against him at trial. Had he known it could, he stated, he “would have testified differently.” While we do not know what defense counsel knew about appellant's prior criminal history, trial counsel is not...