Tran v. State

• Decision Date: 08 March 2017
• Docket Number: A16A1654
• Parties: TRAN v. The STATE.
• Court: Georgia Court of Appeals

340 Ga.App. 546

798 S.E.2d 71

TRAN

v.The STATE.

A16A1654

Court of Appeals of Georgia.

March 8, 2017

Daniel Horne Petrey, for Appellant.

Donna Coleman Stribling, Robert D. James Jr., Atlanta, Lenny I. Krick, Sherry Boston, Decatur, for Appellee.

Rickman, Judge.

Nam Nhu Tran was tried by a jury and convicted of two counts of armed robbery and one count each of aggravated sexual battery and possession of a firearm during the commission of a felony.¹ Following the denial of his motion for new trial, Tran appeals. He contends that the trial court erred in its response to a question from the jury and that his trial counsel was ineffective in numerous respects. For reasons that follow, we reverse.

Viewed in the light most favorable to the jury's verdict,² the evidence shows that at approximately 1:00 a.m. on February 6, 2013, two men entered a karaoke club on Buford Highway, wearing surgical masks and carrying guns. A female club manager testified that the armed men forced her to lie face down on the floor and one of the men put his finger in her vagina. A male club manager testified that a man pointed a gun at him, forcing him to lie down, and took his debit card and some cash. The male manager testified that the men also took an almost full case of Johnny Walker Black Scotch and two or three bottles of Crown Royal Special Reserve. After one of the men left, the second man tried to get the male manager to open the register, but it would not open because the power was off. As soon as the second man left, the male manager went to the front door and saw a silver Acura with tinted windows pulling out of a parking space. He testified that the license plate was covered and was not visible. Neither of the managers saw the men's faces clearly.

At approximately 1:24 a.m., a DeKalb County police officer received a call about a suspect vehicle and three or four minutes later, as he was driving to the incident location, he saw a silver Acura with tinted windows. The officer followed the Acura and noticed that the driver was driving erratically. When the officer activated his blue lights, the Acura stopped in a parking lot. As soon as the officer stopped his vehicle, the passenger got out of the Acura and ran. The passenger was never found. After backup arrived, the officer ordered the driver, identified as Tran, out of the Acura and placed him in handcuffs. Tran told the officer that "there was a gun" in the Acura. The gun belonged to Tran. A subsequent search of the Acura revealed a case of Black Label liquor, a bottle of Crown Royal, and various items of clothing.

A detective with the DeKalb County police department responded to the robbery call at the karaoke club. He took statements from five witnesses while he was at the scene. The male club manager described one of the suspects as an Asian male, age 20 to 30, height of 5'6" to 5'7," weight of 160 pounds, wearing jeans and a white mask, and armed with a silver gun. He described the second suspect as an Asian male, unknown description, wearing a white mask, and armed with a gun.³ The female club manager described one of the suspects as an Asian male, age 20 to 30, height of 5'6" to 5'7," wearing a white mask and dark hat, and armed with a dark-colored handgun.

Tran testified at trial to the following. He is Vietnamese and is 5'5" tall and weighs about 155 pounds. On February 6, 2013, he went to a restaurant for a late dinner with friends and after eating, they decided to go to the karaoke club. He left the restaurant by himself, drove to the club, and waited outside his car for his friends to arrive. While he was waiting, a man he did not recognize pointed a gun at him and told him to get in the car and drive. The man was wearing a mask and was carrying a box and some bags that he put into Tran's car. Tran drove where he was told to go and, approximately three to four minutes later, he saw a police vehicle behind him with its blue lights illuminated. At that point, Tran stopped the car. The man took a couple of bills from the car's glove compartment that had Tran's address on them and told him not to say anything about the incident or he would kill him.

Tran testified that when the man got out of his car and ran, he was in shock and "so scared" because four or five years earlier he had been robbed at his business, a pool hall, in Clayton County. Tran testified that he reported that incident to the police and was subpoenaed to appear in court, but before he was scheduled to appear, someone placed a note on his car telling him not to show up for court. Tran told the police about the note, but they did not do anything. After that happened, he purchased a gun.

1. Tran contends that the trial court erred in its response to the following question from the jury: "If, in the case that the defendant was one of the robbers, but the State has not proven that he was the one who committed the sexual battery, or that he even had knowledge that it was occurring at the time, is he still party to the crime?" Before responding to the jury, the trial court stated, "I'll just tell them that's for them to decide," and asked if there were any objections to his proposed response. Tran's counsel stated that he had no objection. The trial court then told the jury, "That's for you to decide." There was no objection following the court's response to the jury. "[Tran]'s failure to object to the [court's response], despite having had the opportunity to do so, constitutes a waiver." (Citations omitted.) Glover v. State , 285 Ga. 461, 463 (3), 678 S.E.2d 476 (2009). Having failed to preserve this objection for appellate review, Tran "is entitled to reversal only if the jury instruction constituted plain error, which will only be found if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." (Footnotes and punctuation omitted.) Lafavor v. State , 334 Ga.App. 125, 134-35 (8), 778 S.E.2d 377 (2015).⁴

Tran contends that the trial court should have answered the jury's question with a simple "no." He argues that the court's response invited the jury to disregard the law "and left the jury free to decide Mr. Tran's guilt or innocence not on the law, but simply "up to" the jury."

As a general rule, "[a] trial court has a duty to recharge the jury on issues for which the jury requests a recharge[, but ... ] where no such request has been made, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court." (Citation and punctuation omitted.) Leeks v. State , 296 Ga. 515, 521 (4), 769 S.E.2d 296 (2015). Here, the jury did not request a recharge, and "[t]he trial court had discretion to decline to answer the jury's question directly." Redding v. State , 296 Ga. 471, 473 (2), 769 S.E.2d 67 (2015). Further, "[w]e have never held ... that the court must engage in a question and answer session with the jury or instruct the jurors individually on how to apply the law to the facts." Kimmel v. State , 261 Ga. 332, 335 (3), 404 S.E.2d 436 (1991). The trial court had already instructed the jurors on parties to a crime, following the pattern charge, as well as the burden of proof, witness credibility, direct and circumstantial evidence, intent, and the elements of aggravated sexual battery. The jurors were also told that they were bound by the law given in the court's instructions, a copy of which was provided to each juror, and that they had a duty and responsibility to apply that law to the facts of the case, which they must ascertain from all the evidence presented.⁵ Reviewing the trial court's charges as a whole, we conclude that the court's response to the jury was not clearly erroneous and, contrary to Tran's assertion, did not invite the jury to disregard the law. See Aikens v. State , 297 Ga. 229, 231, (2) 773 S.E.2d 229 (2015) ; see also Lafavor v. State , 334 Ga.App. at 135 (8), 778 S.E.2d 377.⁶

2. Tran contends that his trial counsel was ineffective for failing to object in several instances, failing to request a jury charge on his sole defense, and opening the door to damaging testimony.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct and that, under the circumstances, the challenged action might be considered sound trial strategy. Id. at 689-690 (III) (A), 104 S.Ct. 2052. As an appellate court, we "accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Robinson v. State , 277 Ga. 75, 76, 586 S.E.2d 313 (2003). In this division, we address the first prong of the Strickland test and in Division 3 we address the second prong, looking at the combined effect of trial counsel's errors to determine whether those errors prejudiced the defense.

(a) Tran contends that his trial counsel was ineffective for failing to object to the trial court's response to the question from the jury addressed in Division 1. Because there was no plain error in the trial court's response to the jury, when considered in connection with the complete charge given by the court, Tran cannot show ineffective assistance of counsel based on his counsel's failure to object to the court's response. See Dority v. State , 335 Ga.App. 83, 104 (4) (g), 780 S.E.2d 129 (2015) ; see also Thomas v. State , 297 Ga. 750, 755 (5), 778 S.E.2d 168 (2015) ; Hughley v. State , 330 Ga.App. 786, 794 (4) (c), 769 S.E.2d 537 (2015).

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