Rembert v. State

• Decision Date: 07 October 2013
• Docket Number: No. A13A1513.,A13A1513.
• Citation: 749 S.E.2d 744,324 Ga.App. 146
• Parties: REMBERT v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 146

749 S.E.2d 744

REMBERT

v.The STATE.

No. A13A1513.

Court of Appeals of Georgia.

Oct. 7, 2013.

Russell Knighton Walker, for Appellant.

George Herbert Hartwig, III, Daniel Patrick Bibler, for Appellee.

BRANCH, Judge.

Craig Renard Rembert, Jr., was tried by a Houston County jury and convicted of a single count of armed robbery.¹ He now appeals from the denial of his motion for a new trial, arguing that the trial court erred in denying his motion for a continuance and instead excluding his alibi evidence. Rembert also claims that the trial court erred in admitting testimony that a witness had identified him from a video recording of the robbery, in admitting similar transaction evidence, and in denying his motion for a mistrial. Additionally, because the trial judge had served as the prosecutor in the case resulting in the similar transaction conviction, Rembert contends that the judge should have recused herself sua sponte from the current case. Finally, Rembert asserts that he received ineffective assistance of counsel. We find no merit in any of these claims of error and therefore affirm the denial of Rembert's new trial motion.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514, 702 S.E.2d 747 (2010). So viewed, the record shows that on the evening of January 9, 2011, Heather Jacobs was working at Seanna's Lucky Cabin, a business that operated a game room and gift shop. The entrance to the business was always locked, and to gain admittance patrons had to ring the doorbell. An employee would admit prospective customers only if they were known to the employee or could provide the employee with a reference—i.e, the name of another known customer who had referred them to the business. On the night in question, Jacobs admitted a man she later identified as Rembert to Seanna's. She admitted the man because, even though she did not know him by name, she had seen him in the business before and recognized him as a customer. The man waited until he was the only customer in the business and then approached Jacobs and asked her if she could change a $20 bill. When Jacobs opened the cash register to make change, the man pulled out a gun and told her to give him all the money in the register. After Jacobs complied with the man's demand, he took her cell phone and forced her into the shop's restroom. Following the incident, Jacobs used the cell phone of an arriving customer to report the robbery.

The robber was captured on video by the security cameras in the business. Seanna Milam, the business owner, provided police with a copy of videos taken by two different cameras and she also kept a copy of the videos for herself. The day after the robbery Milam watched the videos with her daughter and her daughter's boyfriend, Christopher Daly. Daly, who had gone to high school with Rembert, thought he recognized Rembert on the video. Daly located a picture of Rembert in his high school yearbook, which Daly's girlfriend then e-mailed to Jacobs. Jacobs recognized the picture as being that of the robber and provided Rembert's name to the investigating officer. Police then prepared a photographic line up for Jacobs, using the photo from Rembert's driver'slicense ² and the photos of five other individuals who resembled Rembert. When shown the pictures, Jacobs “immediately” pointed to Rembert's picture and identified him as the man who robbed her. Based on this identification, Rembert was arrested and charged with armed robbery.

Prior to trial, the State served a discovery request on defense counsel in which it asked that Rembert provide the State with notice of any alibi evidence he intended to present no later than five days prior to trial. Defense counsel did not respond to this request. On the morning of trial, before the jury was struck, Rembert's lawyer requested a continuance, stating that Rembert had just informed him that Rembert had an alibi. The attorney explained that Rembert's mother and brother would serve as alibi witnesses, as both claimed that Rembert was with them at the mother's home at the time of the robbery. Rembert's lawyer further stated that Rembert's mother had apparently sent the lawyer an affidavit setting forth facts in support of her son's alibi, but that he had never received it. According to the lawyer, he had been unable to have significant contact with Rembert prior to trial because the current case had led to the revocation of Rembert's probation on a different charge, and Rembert had been removed from the county jail and sent to prison.

In a subsequent discussion with the trial judge, Rembert admitted that he did not tell his attorney about his alibi until the morning of trial. Rembert also stated that this was because he only met with his attorney on two occasions: at the probation revocation hearing and the morning of trial. Rembert also claimed that he had tried to talk to his defense counsel at the probation revocation hearing about a number of issues, including his alibi, but the lawyer had told him that such information would “matter” only at trial.

The judge denied the motion for a continuance, noting that the current charge had served as the basis for the revocation of Rembert's probation; that the lawyer had represented Rembert at the probation revocation hearing; that the hearing was a full evidentiary hearing; and that no mention of an alibi was made at that hearing. The trial court subsequently granted the State's motion to exclude Rembert's alibi evidence, based on Rembert's failure to provide timely notice of his intent to present such evidence.

Also prior to trial, the State provided notice that it would be presenting similar transaction evidence. Following a hearing, the trial court ruled that it would allow the evidence, finding that it was probative both as to Rembert's bent of mind and course of conduct. The State then pointed out that the trial judge had served as the prosecutor in the case that resulted in the similar transaction conviction.³ The trial judge expressed that she had been unaware of this fact, stating: “I will note for the record ... I have zero independent recollection about [Rembert's earlier] case, except Mr. Rembert's name was vaguely familiar to me.”

Following his conviction, Rembert filed a motion for a new trial. At the hearing on that motion, Rembert presented evidence regarding his alibi defense and whether his attorney was or should have been aware of that defense prior to trial. Rembert testified that he gave his attorney the information related to his alibi on the day of his probation revocation hearing, several weeks in advance of trial. He reminded his attorney of his alibi on the morning of trial, at which point the lawyer made the unsuccessful motion for a continuance. Rembert also introduced the signed, notarized affidavits of both his mother and his brother, each of which was dated July 14, 2011,⁴ and in which both the mother and the brother averred that at the time of the robbery Rembert was with them, at the mother's home. Both the mother and the brother testified at the hearing and confirmed the information set forth in their respective affidavits. Rembert's mother also testified that she gave the affidavits to Rembert's trial lawyer several weeks before trial, and that the attorney then instructed her to have the affidavits notarized. The affidavits were notarized within a week after the mother's conversation with the attorney and the notarized copies were then sent to him.

Rembert's trial counsel testified that the notarized affidavits of the mother and brother were in his case file, and that he received them in his office on July 18, 2011, the day of jury selection. Specifically, the attorney returned to his office following jury selection and found the affidavits in his in-box. Although he could not remember the precise date he first learned of Rembert's alibi, the attorney was sure that he had no knowledge of the alibi at the probation revocation hearing. Additionally, there was nothing in the attorney's file to indicate he had any information concerning Rembert's alibi until the morning of jury selection, and he could not recall any conversation with Rembert's mother prior to that time in which she mentioned an alibi. The attorney further testified that if he had been informed of the alibi in advance of trial, he would have followed his standard practice of providing alibi notice to the State and subpoenaing the necessary witnesses. His file, however, reflected that he had done neither of these things.

The trial court denied Rembert's new trial motion, and this appeal followed.

1. We first address Rembert's claim that the trial court erred in denying his motion for a continuance and granting the State's motion to exclude his alibi evidence. Under Georgia law, a defendant is required, upon demand by the State, to provide written notice of his intent to rely upon alibi evidence, and such notice must be provided no later than ten days prior to trial. OCGA § 17–16–5(a). Where a defendant fails to provide such notice, a trial court “may order the defendant to permit the discovery or inspection [of the evidence or] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed.” OCGA § 17–16–6. The choice of what sanction, if any, to impose for the defendant's discovery violation, including a failure to provide the State with notice of his alibi, is within the discretion of the trial court. Theophile v. State, 295 Ga.App. 517, 520(1), 672 S.E.2d 479 (2009). Here, Rembert contends that the trial court abused its discretion in excluding his alibi evidence because there was no showing that...