Ramsay v. State

• Decision Date: 12 March 1996
• Docket Number: No. A95A2818,A95A2818
• Parties: RAMSAY v. The STATE.
• Court: Georgia Court of Appeals

Page 814

469 S.E.2d 814

220 Ga.App. 618

RAMSAY v. The STATE.

No. A95A2818.

Court of Appeals of Georgia.

March 12, 1996.

Michael K. McIntyre, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. McNamara, Assistant District Attorneys, Decatur, for appellee.

McMURRAY, Presiding Judge.

Defendant Ramsay appeals his conviction of the offense of armed robbery. Held:

1. Defendant's first enumeration of error raises allegations of ineffective assistance of trial counsel. " 'In order to prevail defendant must meet two tests: 1) he must show that trial counsel's performance was deficient in that he made errors so serious that he was not functioning as the "counsel" guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.)' Hosch v. State, 185 Ga.App. 71, 72(2) (363 S.E.2d 258) (1987)." Cofield v. State, 216 Ga.App. 623, 627(5), 455 S.E.2d 342.

The first argument is that trial counsel was ineffective in that counsel failed to investigate and present substantive evidence of defendant's innocence by demonstrating that the actual perpetrator of the crime was another. The State's evidence was that defendant and an accomplice robbed the occupants of a convertible automobile which had stopped at a stop sign. Defendant was identified as the gunman who held a pistol to the head of the vehicle's driver while the accomplice took a wallet from a passenger.

Defendant maintains that trial counsel should have done more to develop information counsel received that the gunman was a person other than defendant. Trial counsel also received information as to the identity of the accomplice to the gunman.

In the order denying defendant's motion for new trial, the trial court states that: "[Trial counsel] knew about [K.A., the supposed gunman], as evidenced by the fact [counsel] called [K.A.'s] mother as a defense witness at trial, but could not interview him because he had left Georgia and gone to New York and [counsel] could not find him. Neither could [counsel] interview [C.C., the supposed accomplice], because his grandmother would not permit it. Both [K.A. and C.C.] were and still are minors. [Trial counsel] could not have proved [the supposed gunman and the supposed accomplice] were the robbers by putting [them] on the witness stand and extracting confessions from them, a la Perry Mason, because as shown at the motion for new trial hearings, they both would have invoked their right to remain silent. [Counsel] tried to elicit testimony from Jason Smith and Moses Chandler that [K.A. and C.C.] bragged about committing the robbery, but [counsel's] efforts were thwarted by the State's hearsay objection. [Trial counsel] did establish on cross-examination of Detective Holmes that [C.C.] was a suspect in the case, and that Jason Smith and Moses Chandler said [K.A.], and not the defendant, was the robber with the gun. The defendant has failed to show how he would have profited from further investigation by [trial counsel], or how [counsel] could have proved that it was [K.A. and C.C.] who did the robbery."

On appeal, defendant's argument continues to lack any indication of how he would have benefited from further investigation by trial counsel or how counsel could have proven that K.A. rather than defendant was the gunman. The substance of the argument in support of this enumeration of error is entirely speculation and conjecture based on an aspiration that if trial counsel had done more to keep pressure on K.A. and C.C., they would have relinquished their Fifth Amendment rights. The trial court's conclusion that trial counsel had exhausted all reasonable avenues for developing and presenting this defense theory is supported by ample evidence and is not clearly erroneous. Hearst v. State, 212 Ga.App. 492, 494, 441 S.E.2d 914.

During the trial of the case sub judice defendant's trial counsel was subpoenaed to testify in federal court. The subpoena was served at approximately midnight, and the next morning defendant's trial was delayed while his trial counsel appeared as a witness in the unrelated federal trial. Trial counsel's absence was in violation of the directions of the trial court which explained to the jury that the delay in defendant's trial was caused by the absence of his trial counsel. While defendant contends that he was thus abandoned by trial counsel, the trial court was authorized to conclude that there was no prejudice to defendant. No proceedings took place in the absence of trial counsel other than the trial court's explanation of the delay to the jury. The trial court also established on the record that the jury would put aside any frustrations concerning the delay and decide the case on the evidence presented at trial. We find no merit in the contention that trial counsel was ineffective because counsel was late to court one day.

Nor does the fact that trial counsel was highly stressed by giving testimony in the federal trial imply that counsel was ineffective. As noted by the trial court, all trial lawyers have personal lives which cause stress at times, but such stress does not necessarily affect their performance in court, and even if trial counsel believed counsel's performance was not at counsel's best after testifying in federal court, that does not mean counsel's performance fell to a level of ineffectiveness.

Next, defendant contends that trial counsel was ineffective in connection with a second statement given by defendant following his arrest. In his first statement defendant said that he and C.C. ran up to the victim's car and robbed them while C.C. held a gun on them. At the preliminary hearing defendant denied participating in the robbery, and afterwards trial counsel asked the investigating detective to interview defendant again. Subsequently, defendant gave a second statement saying that the robbery was committed by C.C. and K.A. Trial counsel was not present when the second statement was given and did not learn of it until during defendant's trial.

Defendant maintains that trial counsel was ineffective in urging the second interview, in not being present when it was conducted, and in failing to learn of the statement prior to trial. Yet trial counsel's suggestion of a second interview was clearly an attempt to create some doubt of defendant's guilt on the part of the detective, and trial counsel could not have been present for an interview of which counsel had no knowledge. If failing to obtain knowledge of the statement through the use of former OCGA § 17-7-210 was an oversight on the part of trial counsel, it was of no consequence since the second statement was exculpatory and consistent with defendant's statement at the preliminary hearing.

Nor was trial counsel ineffective because counsel did not have an audiotape of the preliminary hearing transcribed. Trial counsel and counsel's staff listened to the tape and made notes. The information on the tape was thus available in preparation for trial. While defendant complains of the absence of the availability of a transcript for impeachment purposes, this is speculative and defendant has not identified any specific instances in which a transcript would have been useful at trial for this purpose.

Defendant also maintains that trial counsel failed to prepare defense witnesses, including defendant, for direct examination and cross-examination at trial, resulting in the witnesses becoming confused during their testimony. But the only factual predicate for this contention seems to be the confusion of the witnesses at trial which does not serve to rebut the uncontroverted testimony of trial counsel concerning efforts to prepare the defense witnesses for trial. This enumeration of error lacks merit.

The State's primary identification witness was the passenger in the vehicle at the time of the robbery. Defendant next contends that trial counsel was ineffective in allowing that witness to view defendant in one-on-one "showups" prior to trial. While the witness testified that she had seen defendant three or four times in the interval between the offense and trial, only two incidents can be identified from the record, both of which occurred after the witness's positive identification of defendant in a photographic lineup. One incident occurred outside the courthouse on the morning of a hearing in the case and was beyond the control of trial counsel. The other incident occurred at the preliminary hearing when trial counsel chose to have defendant present to aid counsel in the cross-examination of the witness. Such was a strategic and tactical decision within the exclusive province of trial counsel and which did not constitute ineffective representation. Cofield v. State, 216 Ga.App. 623, 627(5), 455 S.E.2d 342, supra.

Another tactical decision, which defendant now claims was ineffectiveness, was the presentation of evidence which placed defendant's character in issue. This evidence revealed that at the time of the armed robbery defendant was out on bond for a misdemeanor charge and permitted the prosecution to elicit evidence that the misdemeanor was a weapons offense. Yet defendant testified that being out on bond caused him to be deterred from committing a crime. It was for trial counsel to determine whether the revelation of the misdemeanor charge was more helpful or harmful to defendant. Hutson v. State, 216 Ga.App. 100, 103(10), 453 S.E.2d 130.

Trial counsel's failure to impeach the detective who received defendant's statements did not constitute ineffective assistance. While trial counsel had received information that the detective had acted inappropriately in other cases, such evidence did not provide a proper means of impeachment. Haynes v. State, 180 Ga.App. 202, 203-04, 349 S.E.2d 208. Nonetheless, trial counsel attempted to present such ...