Smith v. State

• Citation: 234 Ga. App. 586,506 S.E.2d 406
• Decision Date: 01 September 1998
• Docket Number: No. A98A1994.,A98A1994.
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

506 S.E.2d 406

234 Ga. App. 586

SMITH v. The STATE.

No. A98A1994.

Court of Appeals of Georgia.

September 1, 1998.

Reconsideration Dismissed September 30, 1998.

Larry D. Smith, pro se.

David J. Grindle, Columbus, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee. ELDRIDGE, Judge.

Defendant-appellant Larry D. Smith appeals the denial of his motion for new trial, which followed his conviction for armed robbery, forgery, and driving with a suspended license. We affirm.

Viewed in the light most favorable to the jury's verdict, the facts are as follows: On September 1, 1993, Debra Jean Marshall was employed by the United States Postal Service and was delivering mail in Columbus, Muscogee County. At approximately 11:35 a.m., as Marshall was reaching into her truck to retrieve some mail, she was confronted by a man who pointed a gun at her chest. She turned, ran up the street while screaming, and flagged down a vehicle. The driver of the vehicle and his passenger stopped and let Marshall get into the car. Marshall and the witnesses testified that the robber then fled in a tan Toyota Corolla, which was driven by another person. The Toyota had a baby seat in the back seat. The witnesses were unable to identify the driver except to note that he was "slouched down in the seat and he had on dark sunglasses, low hair cut, black male." The witnesses took Marshall to a house, where Marshall called the police. After the police arrived, Marshall returned to her truck and discovered that mail for certain addresses was missing; she testified that several government benefits checks were included in the missing mail. The next day, a notice was sent to banks in the area regarding the stolen checks.

Within an hour after the robbery, defendant Smith arrived at the apartment of Schlunda Wilson; Wilson described her relationship with Smith as "hustling buddies." Wilson testified that Smith had told her earlier in the day that he had "some business to take care of" and would contact her later. Between 12:00 noon and 1 p.m., Smith picked up Wilson and asked her to help him cash some checks. Smith was wearing dark sunglasses and was driving a brown Toyota Corolla with a baby seat in the back. The pair went to a separate location and had identification cards made which showed their pictures but used the names that were on the stolen checks. Utilizing the ID cards, Wilson and Smith cashed a check at a liquor store; they also cashed a check at Trust Company Bank.

However, the Trust Company Bank teller became suspicious about the transaction because the identification card was unfamiliar to him, the driver of the Toyota Corolla seemed to be nervous and impatient, and the driver avoided looking into the surveillance cameras. Acting on these suspicions, the teller noted on the back of the check the vehicle's tag number, as well as its make and model. The bank's security cameras also photographed the vehicle in the drive-through banking line. When the teller received the stolen checks notice the next day, he notified his supervisor that he had cashed one of the checks.

Smith and Wilson had more identification cards created the next day and attempted to cash a check at another bank. However, the teller noticed that the ID card looked "funny." She had already received the stolen checks notice, and she notified her supervisor that the street name on the check matched those on the notice. While the teller stalled Smith and Wilson for several minutes, the branch manager wrote down the vehicle's tag number and called police. Smith then told the teller that he could wait no longer and asked for the check back; a bank supervisor told him that he would have to come into the bank to retrieve the check. However, Smith sped off down the street.

The police quickly apprehended the pair, who were identified by the bank teller. At the time of his arrest, Smith had $1,118 in his pants pocket. Several fictitious Georgia ID cards were recovered in the glove compartment of the Toyota Corolla; the names on the cards matched those of the intended recipients of some of the stolen checks. The police later found several stolen checks on the ground where the vehicle had been stopped and, later, towed away. The checks were wrapped in a newspaper-type mailing. Wilson had alerted police that, at the time of the arrest, Smith had kicked the checks under the car. The evidence presented also showed that the Toyota Corolla used during the check-cashing incidents belonged to Smith's sister, and that Smith had access to the vehicle on the day of the armed robbery.

Smith was indicted for armed robbery, first degree forgery, and driving with a suspended license. He was tried on April 4-5, 1994, and was convicted by a jury on all counts. His motion for new trial was denied, and he appeals. Held:

1. In his first enumeration of error, Smith contends that the trial court erred when it denied his motion for new trial based upon his assertion that he was denied effective assistance of counsel at trial. On appeal, Smith specifically cites counsel's failure to object when a witness for the State allegedly placed his character in evidence and counsel's decision to waive an opening statement. Smith also refers indirectly to allegations of ineffective assistance that were raised in his motion for new trial.¹ "In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. There is a strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy." (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122, 453 S.E.2d 443 (1995). See also Hudson v. State, 218 Ga.App. 671, 672, 462 S.E.2d 775 (1995). In order to rebut this presumption, appellant must show that "counsel's representation fell below an objective standard of reasonableness. [Cit.]" Knight v. State, 266 Ga. 47, 48(4), 464 S.E.2d 201 (1995). "The trial court's ruling that counsel's performance did not fall below an objective standard of reasonableness and that [appellant] failed to show a reasonable probability that the result would have been different but for the alleged errors must be upheld unless those findings are erroneous." Harris v. State, 268 Ga. 412-413, 490 S.E.2d 96 (1997).

(a) Smith asserts that trial counsel's performance was deficient because he failed to object to the following exchange between the State and Wilson: "[State:] How did you know [Smith]? [Wilson:] Well, I met Larry a couple of years ago. And I would say about two years after I met him he disappeared. Come to find out he was in prison." The State did not pursue questioning based upon this response, but immediately began questioning the witness about the day of the robbery.

(i) As a threshold issue, this Court finds that the witness' statement was non-responsive to the question asked by the State. See Cochran v. State, 177 Ga.App. 471, 473(3), 339 S.E.2d 749 (1986). Further, Georgia's courts have consistently held that similar statements fell short of placing the defendant's character in evidence. See, e.g., Zellner v. State, 260 Ga. 749, 751(3)(b), 399 S.E.2d 206 (1991); Johnson v. State, 256 Ga. 604, 605(2), 351 S.E.2d 623 (1987); Cochran v. State, supra at 473, 339 S.E.2d 749, and cases cited therein.

(ii) However, even if the statement impermissibly placed Smith's character in issue, trial counsel's failure to object did not rise to the level of ineffective counsel. Such restraint may reasonably be seen as an issue of trial strategy, i.e., intentionally avoiding an objection which would draw the jury's attention to the witness' statement. See Fargason v. State, 266 Ga. 463, 465(2), 467 S.E.2d 551 (1996). "[A]s a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel." (Citation and punctuation omitted.) Milliken v. State, 230 Ga.App. 810, 812(2)(b), 498 S.E.2d 127 (1998). On a motion for new trial which asserts ineffective assistance, it is the defendant's burden to present affirmative evidence to rebut the presumption that, "in the absence of contrary evidence, counsel's actions are presumed strategic in nature. [Cits.]" Milliken v. State, supra at 813, 498 S.E.2d 127; Hudson v. State, supra at 672, 462 S.E.2d 775. Smith failed to carry this burden, so that the trial court's finding on this issue was not clearly erroneous.

(b) After reviewing Smith's remaining allegations of deficient performance by trial counsel, we find that the allegations are not supported by any evidence in the record or can reasonably be construed as issues involving trial strategy. See Hudson v. State, supra at 673(1)(b), 462 S.E.2d 775. Accordingly, Smith was not entitled to a new trial on the basis of ineffective assistance of counsel.

2. Smith also contends that he was denied his right to a fair and impartial jury panel, asserting that he had a statutory right to a panel of 30 qualified jurors, i.e., 30 jurors who could not be excused for cause. However, Smith apparently misunderstands the statutory requirements for jury panels. Under OCGA § 15-12-160, a defendant in a non-death penalty felony trial is entitled to a panel of 30 jurors, of which at least 12 jurors must be qualified to serve. Although, generally, "under OCGA § 15-12-162, a challenge to the jury array must be in writing" to be considered on appeal, Lysfjord v. State, 208 Ga.App. 811, 812(2), 432 S.E.2d 247 (199...