Smith v. State

• Decision Date: 09 July 2001
• Docket Number: No. A01A0033.,A01A0033.
• Citation: Smith v. State, 250 Ga. App. 465, 552 S.E.2d 468 (Ga. App. 2001)
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

552 S.E.2d 468

250 Ga. App. 465

SMITH v. The STATE.

No. A01A0033.

Court of Appeals of Georgia.

July 9, 2001.

Bischoff & White, James E. Bischoff, Fayetteville, for appellant.

William T. McBroom III, Dist. Atty., Daniel A. Hiatt, Asst. Dist. Atty., for appellee.

MILLER, Judge.

A jury found Carl Keith Smith guilty of kidnapping, criminal attempt to commit robbery, burglary, possession of tools for the commission of a crime, and several traffic offenses including driving while license suspended, improper passing, reckless driving, speeding, and improper passing on the left. Due to his extensive criminal record, Smith garnered a recidivist sentence. Following the denial of his motion for new trial, Smith filed this appeal. Smith now claims that the trial court erred by failing to merge the four felony convictions, by admitting certain identification evidence, and by refusing to compel the State to turn over the 911 tape. He also alleges that he was deprived of effective assistance of counsel and that the State failed to prove the element of asportation for the offense of kidnapping. Finally, he contests the sufficiency of evidence as to his conviction for possessing tools for the commission of a crime. Having considered these issues and found them lacking in merit, we affirm.

When viewed in the light most favorable to the verdict, the evidence established that in mid-morning, a man came to the home of Jesse Hugh Jackson and his wife, Edna Jackson, to express interest in certain rental property. Although identifying himself as Tony Walker, he was, in fact, Carl Keith Smith. About two hours later, Smith returned to the Jacksons' residence, interrupting their lunch. Mrs. Jackson recognized Smith as the "nice young man" with whom she had chatted earlier. Smith told her that he wanted to give her another telephone number. When she left to retrieve a note pad, Smith entered their home without permission. Once inside, Smith said, "I need money, go get your purse." Smith warned, "don't make me hurt—don't make me use my gun." After overcoming his initial shock at the sudden turn of events, Mr. Jackson, a retired farmer, began "hollering" at Smith "to get out of here," and started swinging his walking cane, making repeated attempts to strike Smith. While blocking the intended blows with his hands, Smith backed out the door. When Mrs. Jackson went to the bedroom to retrieve her purse, she instead contacted 911. While Mrs. Jackson was communicating with the 911 dispatcher, Mr. Jackson reported that Smith had driven away in a beige or tan-colored Saturn.

After being attacked with the cane, Smith fled. Shortly thereafter, an off-duty sheriff's deputy spotted a car matching the broadcast description of Smith and his vehicle. After driving erratically and committing multiple traffic violations while attempting to elude capture, Smith was eventually apprehended. Lieutenant Rodney Bennett noted a red, raised bump on Smith's forehead. Detective Keith Whiteside described seeing "a welt or a knot on the front portion of his head."

After being transported in separate police vehicles to the site of the traffic stop, Mr. Jackson and Mrs. Jackson each independently identified Smith as the perpetrator. These identifications occurred about 30 to 45 minutes from the time Smith left their home. In court, they also identified Smith as their attacker.

Detective David McNaughton inventoried the car that Smith was driving and found a dent puller, a flat blade screwdriver, and a lock cylinder that had been removed from a car. McNaughton testified that the dent puller is "used for pulling out locks on cars, to use to get in so they can do the ignition, steal cars." He explained that by removing the lock cylinder, entry to the vehicle can be gained. He demonstrated the process to the jury by using the dent puller and the screwdriver. According to McNaughton, based on the tool marks on it, the lock cylinder found in the trunk had been removed in this way.

1. Smith contends that the trial court erred by failing to merge the counts for kidnapping, criminal attempt to commit robbery, burglary, and possession of tools for the commission of a crime. Smith claims that when the "actual evidence" test is applied, all the evidence is used up and these four counts merged.¹ At the outset, "[t]he key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge."² The offenses at issue here did not merge. The crime of burglary was complete when Smith entered the Jacksons' home without authority and with intent to commit a theft therein, regardless of whether he accomplished his apparent purpose.³ The offense of criminal attempt to commit robbery was complete when Smith performed an act constituting a substantial step toward the commission of that crime by directing Mrs. Jackson to get her purse and threatening to use a gun to force her compliance.⁴ The offense of kidnapping was complete when, without lawful authority, Smith held Mrs. Jackson against her will and forced her to move to the bedroom to retrieve her purse.⁵ Nor were the same facts used to prove that Smith was in possession of tools commonly used to commit theft.⁶

2. Smith claims that the trial court erred by admitting the identification testimony because the identification procedure was impermissibly suggestive and resulted in a substantial likelihood of misidentification. He points out that when the Jacksons identified him at the showup, he was the sole person in handcuffs and was surrounded by uniformed officers.

Such on-the-scene showup's have been found not to be impermissibly suggestive when they are necessary under the practicalities of the situation.⁷ The two separate one-on-one confrontations used here were vital to assisting an expeditious police investigation and in resolving possible doubts as to whether the correct individual was being detained.⁸ Both witnesses had ample opportunity to observe Smith during earlier conversations with him and both identified him at trial. Since there was not a substantial likelihood of misidentification, the trial court properly denied the motion to suppress.⁹

3. Smith contends that the trial court erred by refusing to compel the State to turn over the 911 tape to the defense. He asserts that the State violated the rules of discovery by failing to provide him with that tape which he claims would have been exculpatory within the meaning of Brady v. Maryland.¹⁰

OCGA § 17-16-4(a)(3) requires the State to timely allow "the defendant ... to inspect and copy ... [audiotapes] ... which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution's case-in-chief or rebuttal at the trial...." Prior to trial, defense counsel complained that despite a specific demand for copies of the 911 transmission, the State provided only a copy of the outgoing dispatch that followed the 911 call. The prosecutor responded that he did not have a copy of the 911 tape and explained that he did not intend "to call anyone from 911 or anything of that nature." The defense did not subsequently object or seek any relief whatsoever. Therefore, this issue was waived by Smith's failure to elicit a ruling by the trial court.¹¹

4. Smith's assertion that he received ineffective assistance of counsel at trial lacks merit. To establish an ineffectiveness claim, an appellant must show not only that his counsel's performance was deficient but also that the deficiency prejudiced him.¹² Because the failure to satisfy both requirements is fatal to an ineffectiveness claim, absent a showing of prejudice, no inquiry need be made into counsel's alleged deficiencies.¹³

(a) Smith claims that his counsel failed to force the State to turn over discoverable material, the 911 tape, and witness statements. But, prior to trial, the court granted a defense motion to exclude the only statement not given to the defense during discovery. As to the 911 tape, at the hearing on the motion for new trial, the court expressed its displeasure at the State's failure to provide the 911 tape during discovery to the defense. The trial court, however, determined that tape was not a material piece of evidence in light of testimony at trial about the substance of the call and the sequence of events in response to that call. Whether a transcription of the 911 call or the audiotape itself could have assisted the defense is now speculative at best. The defense was provided a copy of the dispatch, a report compiled from the information reported to the 911 operator, and Smith was able to thoroughly cross-examine the Jacksons and the responding officers to probe for any ambiguities or discrepancies. Accordingly, even had the issue been preserved, Smith has not established the requisite deficiency and prejudice needed for reversal.¹⁴

(b) Smith contends that his trial counsel failed to object to testimony about the contents of the 911 call. But part of the defense strategy was to suggest that Smith had been misidentified as the perpetrator, by focusing on purported deviations or inconsistencies in the initial descriptions provided by the Jacksons in contrast to information they later provided to investigators. Again, Smith has not established the requisite deficiency and prejudice to warrant reversal.

(c) Smith urges that his defense was impeded by his counsel's failure to call Daryl Williams as an alibi witness. At trial, two alibi witnesses testified, one of whom is Smith's brother. Both had criminal records. His brother vouched for Smith having been with him in the morning, and the other witness testified about the early afternoon. At the...