Silvey v. State

• Citation: 335 Ga.App. 383,780 S.E.2d 708
• Decision Date: 20 November 2015
• Docket Number: No. A15A1139.,A15A1139.
• Parties: SILVEY v. The STATE.
• Court: United States Court of Appeals (Georgia)

335 Ga.App. 383

780 S.E.2d 708

SILVEY

v.The STATE.

No. A15A1139.

Court of Appeals of Georgia.

Nov. 20, 2015.

Reconsideration Denied Dec. 16, 2015.

Margaret E. Flynt, for Appellant.

Fredric D. Bright, Dist. Atty., Allison T. Mauldin, Stephen A. Bradley, Asst. Dist. Attys., for Appellee.

McMILLIAN, Judge.

After a Morgan County jury convicted Christopher Gerald Silvey on two counts of burglary,¹ the trial court denied his motion for new trial. Silvey now appeals the denial of that motion, asserting that the trial court erred in admitting improper evidence of other acts² and improper bolstering evidence. He also contends that he received ineffective assistance of counsel both during the plea process and at trial.

Viewed in the light most favorable to support the verdict,³ the evidence at trial showed that Silvey participated in two burglaries in Morgan County in October 2011. On October 11, 2011, when Kevin Meeler went to the Morgan County home of his friend, Holly Shaifer, he noticed an unfamiliar car in the driveway, a maroon Toyota Camry, with a man sitting in the passenger seat. Meeler knocked on the door of the house and rang the doorbell, but no one answered. Then as he began to back his car out of the driveway, he saw a man with "blondish colored hair" he did not recognize walking from behind the Shaifers' garage. Meeler pulled back into the driveway and asked the man what he was doing. The man first told him that his car was running hot and that he and the other man were looking for water. He then told Meeler that when they stopped the car, their dog, a black and white terrier, jumped out of the car window, and they were looking for it. Meeler wrote down the car's license tag number, told the men to leave, and then notified the police and the Shaifers.

An officer from the Madison Police Department responded to the call after the maroon car had already left. He checked the exterior of the house for signs of a break-in but found nothing out of place. Holly Shaifer arrived home later, but she did not notice anything missing inside her house. However, she did not check a jewelry box that she kept in the bathroom, which held her "nice ... more sentimental" jewelry. Approximately one month later, at the request of police, Shaifer did a more thorough check and noticed that jewelry she kept in that box was missing.

The license plate number that Meeler wrote down was later traced back to Silvey's mother. At trial, Silvey's co-defendant Jamie Lyn Webb testified that he was the man sitting in the passenger seat of that car when Meeler arrived, and Silvey was the man who emerged from behind the garage to speak with Meeler. Webb said that Silvey had entered the Shaifers' house while he sat outside, and when Silvey got back in the car, he pulled a bundle of gold jewelry out of his pocket. The men sold some of the jewelry for cash the same day.

Nine days after the incident at the Shaifers' house, Lori Ghann went home during her lunch break. When she arrived, she saw a "reddish burgundy" car, with the hood up, parked in her carport next to her water spigot. A dark-haired man of average height was looking under the hood, and as she pulled in the driveway, he approached the car to tell her that he had stopped to get some water because his car had been running hot. Ghann then noticed a man inside her house through the kitchen window. As she began backing out of her driveway, the first man said their dog had jumped out of the car window and the other man was looking for it. As Ghann called 911, she saw the other man come around the front of her house; Ghann described him as blonde and a little older and taller than the first man. As she was talking on the phone, the men pulled up beside her. The blonde man told her that they did not mean to scare her, but Ghann told him that she had seen him inside her house. The man denied it and then drove off.⁴

Webb testified at trial that Silvey and he were the men at Ghann's home that day, and Silvey was driving the same Toyota Camry he drove to the Shaifers' house. Webb was the man outside under the hood of the car of the car when Ghann drove up, and Silvey was inside the house. He said that Silvey had only been in the house a couple of minutes when Ghann arrived.

Webb further testified that Silvey and he committed burglaries to get money to buy drugs. These burglaries began after he asked Silvey where he got his money, and Silvey replied that he had been committing burglaries to raise cash. Webb joined him for the first time on the Shaifer burglary. He said that Silvey usually drove the maroon Toyota Camry, picked out the locations for the burglaries, and broke into the houses using a plastic grocery store card to manipulate the locks, while Webb waited outside. After the burglaries, they sold the valuables they stole for cash.

When questioned by police near the time of the Shaifer burglary, Meeler was unable to pick Silvey from a photographic lineup, and neither Ghann nor Meeler could identify him at trial. To establish identity, the State presented photographs and testimony reflecting that near the time of the Morgan County burglaries, Silvey had longer, lighter hair than he did at trial. Webb testified, for example, that Silvey was eight or nine years older than him and, at the time of the trial, was heavier, more clean shaven, and had shorter hair than at the time of the Morgan County burglaries. Another witness testified that at the time of their arrests, Silvey had "dirty blonde" hair and was two inches taller than Webb.

Additionally, the State presented evidence of Silvey's arrest in connection with a third burglary, which took place in Greene County. Webb was arrested first in connection with two unrelated Greene County burglaries. Afterward, he cooperated with the Greene County Sheriff's Office by showing investigators the residences he had burglarized alone, residences he had burglarized with Silvey, and residences he said Silvey had identified as places he had burglarized alone in Morgan, Greene, and Putnam Counties. During the investigation into these burglaries, an investigator discovered that Silvey had pawned a Greene County High School class ring belonging to Tyrone Janes (the "Class Ring"),⁵ who lived at one of the Greene County burglary sites that Webb claimed Silvey had admitted burglarizing alone (the "Janes burglary"). The State further introduced a copy of the pawn ticket for the ring, which contained Silvey's name and identifying information (the "Pawn Ticket").

The State also played a video of Silvey's interview with police. During that interview, Silvey denied any involvement in the Morgan County burglaries but admitted that he had been in Morgan County on two occasions looking for his dog, a black and white terrier. He said it was possible, therefore, that someone might be able to pick his picture out of a lineup in connection with that circumstance. After Silvey was convicted of the two Morgan County burglaries and his motion for new trial was denied, this appeal followed.

1. Silvey asserts that the trial court erred in allowing evidence of the Janes burglary under OCGA § 24–4–404(b) of Georgia's new Evidence Code.⁶ Under the new Code, "[a] trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." State v. Jones, 297 Ga. 156, 159(1), 773 S.E.2d 170 (2015).

In determining the admissibility of other acts evidence, our Supreme Court has adopted the test set out by the Eleventh Circuit Court of Appeals.⁷

Under this test, in order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant's character, see Rule 404(b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question. In no case may evidence of other acts be admitted for the sole purpose of proving the character of the accused to show that he acted in conformity therewith. See OCGA § 24–4–404(b).

(Citations omitted.) Jones, 297 Ga. at 158–59(1), 773 S.E.2d 170. See also Bradshaw v. State, 296 Ga. 650, 656(3), 769 S.E.2d 892 (2015).

(a) Applying the test in this case, we note that the trial court admitted the evidence of the Janes burglary to show intent and identity. Under the first prong of the test, our Supreme Court has adopted the following federal analysis for the issue of intent:

[A] defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant's state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404(b) test is satisfied.

(Citation and punctuation omitted.) Bradshaw, 296 Ga. at 656–57(3), 769 S.E.2d 892.

Silvey pled not guilty to the charges in this case, thus making intent a material issue, and he failed to take affirmative steps to remove the issue from the case. See United States v. Williford, 764 F.2d 1493, 1498 (11th Cir.1985) (discussing the use of a stipulation to remove issue of intent from case). Although Silvey argues that his defense denying that he was involved in the burglaries removed the element of intent from the case, the Eleventh Circuit has consistently rejected such an argument. See, e.g., United States v. Cardenas, 895 F.2d 1338, 1342(II) (A) (11th Cir.1990) (where "there is no indication in the record that defendant would have conceded his intent to participate in the [crime]...