Strickland v. State

• Decision Date: 28 February 2019
• Docket Number: A18A1924
• Citation: 348 Ga.App. 892,825 S.E.2d 379
• Parties: STRICKLAND v. The STATE.
• Court: Georgia Court of Appeals

348 Ga.App. 892
825 S.E.2d 379

STRICKLAND
v.
The STATE.

A18A1924

Court of Appeals of Georgia.

February 28, 2019

825 S.E.2d 381

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Marc A. Mallon, Assistant District Attorneys, for appellee.

Doyle, Presiding Judge.

348 Ga.App. 892

After a jury trial, Kenneth Strickland was convicted of robbery by force,¹ burglary,² aggravated battery,³ two counts of false imprisonment,⁴ and theft by taking.⁵ After his trial in 2009, Strickland filed a motion for new trial, which he was later amended in 2010, 2013, and 2014. A motion for new trial hearing eventually was held in 2014, and the trial court denied the motion four years later in 2018. Strickland now appeals, arguing that (1) the evidence was insufficient to support his conviction, and (2) trial counsel, who later was disbarred, was ineffective. For the reasons that follow, we affirm.

Viewed in favor of the verdict,⁶ the record shows that on the morning of May 17, 2008, an individual rang the doorbell at the home of 92-year-old Henry Wood. Seventy-two-year old Dereda Taylor, Wood’s live-in caregiver, looked out the front window, but did

825 S.E.2d 382

not see anyone at the door; at some point later, she opened the front door to get the newspaper, and an intruder pushed his way into Wood’s home,

348 Ga.App. 893

accosting Taylor. The intruder tied up Taylor, demanded money, and asked the location of her room and of "pops’s" room. Wood, who died before trial, came out of his bedroom and was assaulted by the intruder; at trial, the parties stipulated that Wood sustained a broken jaw during the incident. After tying up Wood and ransacking the house, the intruder left the home with a 27-inch television, $125 in cash, and Taylor’s Ford Explorer.

Taylor called 911 and described to police that the intruder wore a cap and had his face covered with a hand towel⁷ so that she could only see his eyes. Taylor was not able to identify a suspect from a photographic lineup. At trial, Taylor testified that Strickland’s general size and complexion were the same as the robber, but she testified on cross-examination that the intruder was about five feet five inches tall. Taylor denied that a wash cloth entered into evidence by the State was the same one used by the intruder.

A manager of a pawn shop near Wood’s home testified that Strickland frequently pawned items at that location; based on a pawn ticket issued on the morning of the incident, Strickland came into the store to pawn a television fitting the description, including the serial number, of the one taken from Wood. The manager testified that Strickland never had pawned any other stolen property at that location, and his height listed in their database was five feet nine inches tall, which was based on the information on his state identification.

The day of the incident, police found Taylor’s stolen Ford Explorer in the parking lot across from the pawn shop with the key in the ignition and the engine running. Strickland was arrested at the same pawn shop six days later when the clerk notified the police that he was back at the shop. The manager admitted on cross-examination that although the police could have gotten copies of surveillance video from the shop from the morning of the incident, they failed to do so.

After taking Strickland into custody at the pawn shop, the investigator advised him of his Miranda rights and interviewed him. At first, Strickland denied being at the pawn shop on the date of the incident, and then he admitted he had pawned a television, which he said he had gotten from a person named Harold, who gave him money in exchange for pawning the item. Strickland told the officer that he met Harold in the parking lot across from the pawn shop, that Harold was driving a gray Jeep, and that he did not know Harold’s last name or where he lived.

348 Ga.App. 894

Thereafter, the jury returned a guilty verdict against Strickland, acquitting him of theft by receiving stolen property.

1. Strickland argues that the evidence was insufficient to support the verdict because Taylor’s testimony regarding the appearance of the intruder differed from his physical appearance and no other evidence tied him to the scene of the home invasion other than pawning stolen property, which did not establish that he committed the other crimes. Although it is true that Taylor could not provide much testimony about the intruder’s physical appearance, and she was unable to identify his photograph from a lineup, there was sufficient circumstantial evidence upon which the jury could conclude that Strickland committed the home invasion and crimes during the invasion, rather than merely pawning the television for a man named Harold.

Once it is shown that goods were stolen in a [robbery or burglary], absence of or unsatisfactory explanation of the possession of the goods will support a conviction for [those crimes] based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.⁸

825 S.E.2d 383

The jury heard the weaknesses of the State’s case against Strickland, including the lack of any solid testimony about the intruder’s appearance, but it was for the jury to weigh that evidence against other evidence presented by the State: the geographic proximity of Strickland’s home to the crime and the pawn shop, the temporal proximity of Strickland’s visit to the pawn shop after the intrusion, the state of Taylor’s vehicle abandoned and left running across from the pawn shop in the location where Strickland said he met Harold, Strickland’s initial denial of pawning a television on the day in question, and the lack of evidence about Harold’s identity.⁹ Indeed, it is clear from the jury’s acquittal of Strickland for theft by receiving stolen property and aggravated assault that the jury carefully weighed the State’s evidence and applied the correct standard. Accordingly, this enumeration is without merit because the evidence

348 Ga.App. 895

as detailed above was sufficient for a rational trier of fact to find Strickland guilty of the charged crimes.¹⁰

2. Strickland enumerates several failures of his trial counsel to provide effective assistance of counsel.

To prevail on a claim of ineffective assistance, [Strickland] must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. To show that the performance of his lawyer was deficient, [Strickland] must prove 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. And to show that he was prejudiced by the performance of his lawyer, [Strickland] must prove 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. This burden, though not impossible to carry, is a heavy one.¹¹

(a) Strickland argues that trial counsel was ineffective for failing to object to Taylor’s testimony about statements made by Wood, who died prior to trial, regarding Wood’s injury. Strickland also argues that trial counsel was ineffective for failing to object to...