Reddin v. State

• Decision Date: 10 October 1996
• Docket Number: No. A96A1792,A96A1792
• Parties: REDDIN v. The STATE.
• Court: Georgia Court of Appeals

Page 882

476 S.E.2d 882

223 Ga.App. 148

REDDIN v. The STATE.

No. A96A1792.

Court of Appeals of Georgia.

Oct. 10, 1996.

Certiorari Denied Jan. 31, 1997.

William A. Jordan, Woodstock, for appellant.

Garry T. Moss, District Attorney, Rachelle L. Strausner, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Pursuant to the grant of his motion for out-of-time appeal, Kenneth Dean Reddin appeals his conviction of aggravated assault upon a peace officer (OCGA § 16-5-21(c)) and misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24(a)).

Although the facts surrounding this incident were contested by appellant and his witnesses at trial, examination of the record in the light most favorable to the verdict reveals the following: Appellant was the middle passenger in a pickup truck being driven by a female friend; appellant's sister also was a passenger in the truck. A car traveling in the opposite direction allegedly attempted to run the truck off the road. The driver turned the truck around and pursued the car in an attempt to obtain its license number. In pursuing the car, the truck came upon another vehicle stopping to turn; the driver of the truck swerved into the oncoming lane of traffic to avoid a collision. A rookie deputy sheriff driving an approaching patrol car was forced off the roadway by the actions of the driver of the truck. The driver of the truck got back in her lane and proceeded to drive to a nearby gas station where she stopped. The deputy who had activated his blue lights and siren and was in pursuit of the truck observed it pull into the station and pulled in behind it. The truck driver exited her vehicle and was ordered by the sheriff to get back into the truck. After calling his dispatcher, the deputy approached the truck and asked the driver for her driver's license and insurance card. Smelling alcohol within the truck, the deputy asked the driver to exit the vehicle; at this point, appellant cursed at the officer and stated that the driver did not have to leave the vehicle. The deputy admitted that at this point he was only going to charge the driver with improper passing and not with DUI. The deputy returned to the open truck door and directed appellant to exit the vehicle; this action was taken because appellant had acted in a belligerent manner and the deputy was concerned for his personal safety and wanted to observe appellant. The deputy testified that when he issued this order he believed appellant was not the driver of the truck, that he had seen no weapons, and that he then had no articulable suspicion that appellant either had a weapon or had broken any laws. Appellant told the deputy that he would not exit the truck because he did not want to be arrested for "public drunk." Appellant then threw and struck the deputy on the shoulder with a lit cigarette, the deputy decided to arrest appellant for simple battery. The deputy attempted to handcuff appellant who swung at him simultaneously. Appellant struggled, pulled the deputy inside of the truck and attempted to hold the deputy down. Appellant then hit the deputy several times with the handcuffs injuring him. Appellant exited the truck and ran into the woods where he was subsequently arrested by other deputies. The deputy was taken to an emergency room where he received 18 stitches for injuries across the top of his left eye, the side of his head, behind his ear, and on the back of his hand; he also suffered smaller cuts and bruises. Held:

1. 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 which he was found guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Additionally, an accused's flight, such as occurred in this case, is circumstantial evidence of consciousness of guilt; the fact a suspect flees the crime scene points to the question of guilt in a circumstantial manner. Campbell v. State, 215 Ga.App. 14, 15(1), 449 S.E.2d 366. It was for the jury, weighing the evidence and determining witness credibility, to decide whether appellant was lawfully arrested and had assaulted the deputy during the course thereof, or whether appellant was subjected to an unlawful arrest and had merely used that reasonable force necessary to resist an unlawful arrest. The jury was within its province to resolve the conflict of evidence against appellant. See Searcy v. State, 236 Ga. 789, 790, 225 S.E.2d 311.

2. "[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law." Taylor v. State, 252 Ga. 125, 127(1), 312 S.E.2d 311. Further, the test established in Jackson v. Virginia, supra, "is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence." Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436. Under either test appellant's second enumeration of error is without merit. Having stopped the vehicle for a traffic offense committed in his presence, the deputy could proceed to conduct an investigative detention for a reasonable period of time. During that investigation, he smelled alcohol inside the truck. Under the existing circumstances, the deputy "could continue to detain temporarily [the vehicle driver and passengers] 'to maintain the status quo momentarily while obtaining more information' "; and could take reasonable measures to ensure his safety. Mallarino v. State, 190 Ga.App. 398, 401(2), 379 S.E.2d 210. During that legitimate temporary detention, appellant assaulted the deputy by striking him with a lit cigarette; at that point the deputy had probable cause to arrest appellant for a crime committed in his presence. Considering the circumstances, we find that the deputy acted reasonably in his initial detention of the vehicle and its passengers, his subsequent limited investigative inquiry, and his ultimate attempt to arrest appellant who committed a criminal offense during the course of that lawful inquiry. In view of our holding here and in Division 1, appellant's second enumeration is without merit.

3. Appellant also asserts ineffective assistance of counsel. "The applicable appellate standard is the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674." Rachell v. State, 210 Ga.App. 106, 107(3)(a), 435 S.E.2d 480. The burden is on appellant to establish he received ineffective assistance of trial counsel. Id. at 108, 435 S.E.2d 480.

(a) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultations with his client. Van Alstine v. State, 263 Ga. 1, 3, 426 S.E.2d 360. Appellant asserts he ordered counsel to subpoena certain witnesses; inherent within this claim is a concession that he and his counsel consulted regarding the matter. The ultimate decision thereafter rested with counsel. Id.

(b) Likewise, it lies within the province of counsel to determine, as a matter of trial strategy or tactics, what physical evidence to subpoena and present at trial in behalf of his client, as these decisions too relate to matters of trial strategy and tactics. Id. Again appellant's contention that he requested that such evidence be present perforce establishes his consultation with his counsel regarding these matters.

(c) The trial court found that the evidence did not support appellant's claim of any violation of the rule of sequestration about which appellant's counsel should have complained. The record supports this finding. Moreover, the decision by counsel whether to report a sequestration rule violation is one of trial tactics and strategy.

(d) Appellant has failed to establish that any "deal" existed between Teresa Redden and the State. It is not deficient conduct for counsel to fail to inquire into a non-existent matter. Further, a decision how to conduct cross-examination is a tactical decision to be made by counsel. Id. at 3, 426 S.E.2d 360.

(e) The evidence is conflicting as to the amount of time counsel spent in reviewing the case and discussing it with appellant. "There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity." Datz v. State, 210 Ga.App. 517, 518(3)(a), 436 S.E.2d 506. Also, "[t]here is a strong presumption that trial counsel's performance 'falls within the wide range...