Robinson v. State

• Decision Date: 18 October 2011
• Docket Number: No. A11A0971.,A11A0971.
• Citation: 312 Ga.App. 110,11 FCDR 3289,717 S.E.2d 694
• Parties: ROBINSON v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3289

312 Ga.App. 110

717 S.E.2d 694

ROBINSON

v.The STATE.

No. A11A0971.

Court of Appeals of Georgia.

Oct. 18, 2011.

William J. Mason, for appellant.

Julia Anne Fessenden Slater, Dist. Atty., Douglas Lee Breault, Asst. Dist. Atty., for appellee.

BLACKWELL, Judge.

Arthur Robinson was tried by a Muscogee County jury and convicted of burglary.¹ He appeals, contending that the court below erred when it denied his motion for mistrial and that he was deprived at trial of the effective assistance of counsel. We find no merit in these contentions and affirm.

Viewed in the light most favorable to the judgment below,² the evidence adduced at trial shows that, on June 22, 2005, the owner of a closed laundry and dry-cleaning business went to the building in which her business was located and heard loud noises inside the building, which sounded like someone striking a metal object with a hammer. She called police, and a responding officer found Robinson and Pamela Johnson inside the building. Robinson was behind a machine, striking metal with a large plumbing wrench. According to the officer, Robinson explained that he was in the building to get “some iron and copper,” and Robinson pointed out three six-to-eight foot pieces of metal pipe he already had broken off. The officer testified that after he arrested Robinson, Robinson admitted that he had entered the same building on three prior occasions to procure iron and copper pipe. The president of a scrap metal recycling business testified at trial that Robinson tried several times to sell scrap metal to him in the spring of 2005. Robinson also testified, claiming that he and Johnson entered the building to engage in intimate relations and that he was not attempting to steal any metal pipe, but only to use it to bar the door and ensure their privacy.

1. Both Robinson and Johnson were charged with burglary for entering the building that housed the laundry and dry-cleaning business, and Johnson pled guilty to the burglary charge before trial. She did not testify against Robinson at trial, but the prosecuting attorney nevertheless elicited testimony about her guilty plea from the officer who had found Robinson and Johnson in the building:

Q: Are you aware that [Johnson] pled guilty to burglary last week?

A: Yes, sir, I'm aware.

Q: And are you aware that she pled guilty to theft by receiving stolen property?

Robinson's lawyer objected and moved for a mistrial. The trial court correctly sustained the objection because Johnson did not testify and, as the State now concedes, evidence of her guilty plea was inadmissible. See Pinckney v. State, 236 Ga.App. 74, 74(1), 510 S.E.2d 923 (1999) (“In general, a guilty plea of a joint offender is not admissible evidence at the trial of another joint offender.”); see also Sillah v. State, 291 Ga.App. 848, 851(2), 663 S.E.2d 274 (2008); Spradley v. State, 276 Ga.App. 842, 842(2), 625 S.E.2d 106 (2005). The trial court denied the motion for mistrial, however, and instead gave the following remedial instruction to the jury:

[W]hen the officer testified, he was asked a question about the co-defendant entering a plea of guilty to these charges. Under Georgia law, that should not be admissible at all, should not be considered by you at all concerning this defendant because anything the co-defendant pleads guilty to is just simply not admissible....

[Y]ou shall not in any way infer any kind of guilt to the accused that's on trial that the co-defendant entered a plea since that individual is not here to be cross-examined.... So I'm asking you to please, when you do start discussing credibility of the witnesses and testimony of the witnesses and the evidence presented, that you clearly not consider in any way at all anything the co-defendant may have said to anyone or any statement that's been admitted into evidence today from a co-defendant.

In light of this remedial instruction, we think the trial court did not abuse its considerable discretion when it denied the motion for mistrial.

The utterance of such inadmissible testimony does not always require a mistrial, so long as the trial court gives an adequate, corrective instruction that the jury cannot consider it as evidence of the guilt of the accused. See Pinckney, 236 Ga.App. at 75(1), 510 S.E.2d 923; see also Hendrix v. State, 202 Ga.App. 54, 56(4), 413 S.E.2d 232 (1991), overruled on other grounds, Duke v. State, 205 Ga.App. 689, 690, 423 S.E.2d 427 (1992). As we have explained before, “[t]he trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise [of this discretion] may not be reversed unless abused.” Whiteley v. State, 188 Ga.App. 129, 130(1), 372 S.E.2d 296 (1988); see also Clay v. State, 216 Ga.App. 310, 312(2), 454 S.E.2d 198 (1995). Likewise, “[w]hether to grant a motion for mistrial is within the trial court's sound discretion, and the trial court's exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant's right to a fair trial.” Watson v. State, 289 Ga. 39, 42(7), 709 S.E.2d 2 (2011) (citation and punctuation omitted). The remedial charge in this case, which repeatedly admonished the jury that Johnson's guilty plea was not to be considered in any way with respect to the guilt of the accused, was sufficient to remedy the error and render a mistrial unnecessary. See Hendrix, 202 Ga.App. at 55–56, 413 S.E.2d 232 (curative instruction sufficient to remedy error). Accordingly, the trial court did not err when it denied the motion for mistrial.

2. We turn next to the contention that Robinson was denied the effective assistance of counsel at trial. To prevail on his claim of ineffective assistance, Robinson must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Robinson must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687–688, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Robinson must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574.

Robinson contends that his lawyer was ineffective because, when the prosecuting attorney offered certified copies of his four prior felony convictions to impeach his testimony under OCGA § 24–9–84.1(a)(2), his lawyer failed to object that the probative value of these convictions did not substantially outweigh their prejudicial effect and that the convictions, therefore, should not be admitted. One of these convictions—an April 2000 conviction for possession of cocaine—was entered only about five years before Robinson was tried for burglary, and the trial court certainly could have concluded, if an objection had been made, that such a recent conviction for a serious crime was probative of his credibility as a testifying witness. Moreover, this prior conviction involved conduct dissimilar to the burglary for which Robinson was on trial, making it less likely that Robinson would be unfairly prejudiced by its admission.³ We think the trial court properly could have concluded that the probative value of this prior conviction substantially outweighed any prejudicial effect and exercised its discretion to admit evidence of this conviction under OCGA § 24–9–84.1(a)(2) over objection, so the failure to object to the admission of a certified copy of this objection was not unreasonable.

Even assuming that Robinson has shown that the failure of his lawyer to object to the admission of the other three prior convictions was unreasonable, we do not think Robinson has carried his burden of proving a reasonable probability that the failure to object affected the outcome of his trial, mostly because two of the prior convictions, even if inadmissible under OCGA § 24–9–84.1, would have been admitted anyway, under ...