Wilson v. the State.Rockamore v. the State.

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH, Presiding Judge.
• Citation: Wilson v. the State.Rockamore v. the State., 306 Ga.App. 827, 703 S.E.2d 400 (Ga. App. 2011)
• Decision Date: 16 May 2011
• Docket Number: Nos. A10A0863,A10A0864.,s. A10A0863
• Parties: WILSONv.The STATE.Rockamorev.The State.

306 Ga.App. 827

703 S.E.2d 400

10 FCDR 3738

10 FCDR 4106

WILSON

v.The STATE.Rockamore

v.The State.

Nos. A10A0863

A10A0864.

Court of Appeals of Georgia.

Nov. 17, 2010.Certiorari Denied April 18, 2011.Reconsideration Denied May 16, 2011.

Maurice G. Kenner, Decatur, for appellant (case No. A10A0863).J.M. Raffauf, Decatur, for appellant (case No. A10A0864).Paul L. Howard, Jr., Dist. Atty., John O. Williams, Asst. Dist. Atty., for appellee.SMITH, Presiding Judge.

Cedric Rockamore and Anthony Wilson were convicted of armed robbery, burglary, four counts of aggravated assault, and possession of a firearm in the commission of a felony.¹ Their motions for new trial were denied, and they appeal, asserting various allegations of ineffective assistance of counsel. Rockamore also asserts the general grounds. Finding no error, we affirm.

Case No. A10A0864

1. Rockamore raises the general grounds, contending the State failed to present sufficient evidence to corroborate the testimony of the accomplice, Howell. We disagree.

A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.

(Citations, punctuation and footnotes omitted.) Barnett v. State, 244 Ga.App. 585, 587(2), 536 S.E.2d 263 (2000). Here, the victims testified that the robbery was committed by a total of three men. They entered the apartment, forced the occupants to strip, and asked them “where the dope and the money at.” While the robbery was in progress, another resident of the apartment arrived at the front door with a companion. The resident unlocked the door but was unable to open it because it was chained. One of the occupants of the apartment unchained and began to open the door, and one of the robbers reached around the door and fired through the gap with a pistol, killing the resident in the hallway. The resident's companion was also wounded as he fled. A .40 caliber bullet was recovered from the resident's body, while a 9 mm bullet was recovered from the arm of his companion.

Howell testified that he, Wilson, Rockamore, and co-defendant Henry Taylor planned the robbery because the residents of the apartment “behind Lenox train station” were believed to keep drugs and cash on hand. Wilson gave Howell a .40 caliber pistol which he passed on to Taylor to give to Rockamore, while Taylor gave Howell a 9 mm pistol. According to Howell, Taylor's girlfriend picked up Howell and Rockamore in a green Toyota Camry. She then picked up three other men and took them all to the robbery location and waited in the parking lot until after the robbery.

Howell also testified that he, Rockamore, and the others entered the apartment. They ordered the occupants to strip and ransacked the rooms searching for “the money and the drugs.” During the robbery, two individuals arrived at the front door and knocked, and Rockamore went to the door with one of the occupants at gunpoint. Howell testified that Rockamore reached over the victim's shoulder and shot one of the men at the door; the other man fled, and Howell shot at him “to try and stop him.” Howell and his cohorts then fled to the car and left the scene.

Taylor's girlfriend testified that she owned a green Toyota Camry and had driven Howell and Rockamore to an apartment complex near the Lenox MARTA station. She did not recall the name of the complex, but testified that she had driven Howell and Rockamore to only two complexes in Buckhead and that one of them was near the MARTA station.

Forensic testing found Howell's fingerprint on the 9mm pistol recovered after co-defendant Taylor was arrested on another charge. No fingerprints were found on the .40 caliber pistol recovered at the same time. Bullets recovered from the victim's body were identified as having been fired from the .40 caliber pistol, while the bullet which wounded his companion was identified as having been fired from the 9mm pistol.

“The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.” (Citation, punctuation and footnote omitted.) Meridy v. State, 265 Ga.App. 440, 442(2), 594 S.E.2d 378 (2004). “If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted; emphasis supplied.) Drew v. State, 256 Ga.App. 391, 393(1), 568 S.E.2d 506 (2002).

The victims' testimony describing the perpetrators, their weapons, their conduct, and their locations during the robbery is consistent with the testimony of the accomplice and provides some corroboration.² Metoyer v. State, 282 Ga.App. 810, 812(1)(a), 640 S.E.2d 345 (2006) ( “victims' description of the perpetrators and their vehicle, as well as their testimony regarding the timing and method of the robbery” corroborative as consistent with accomplice's testimony). The testimony from a witness that she drove Rockamore and the accomplice to an apartment complex near the Lenox MARTA station provides some additional corroboration. Baines v. State, 276 Ga. 117, 119(1), 575 S.E.2d 495 (2003) (corroboration in part by evidence that appellant was driven to the vicinity of the victim's home on the day of the crime).

2. We next consider Rockamore's allegations of ineffective assistance of counsel. He complains that his trial counsel failed to object to a prosecutor's statements bolstering the credibility of his accomplice and also failed to object to a prosecutor's statement that the judge would decide the credibility of the accomplice's testimony.

(a) Rockamore points to a number of statements made by the prosecutor during closing argument, contending that the prosecutor “repeatedly vouched for the credibility of the accomplice.” He asserts that his trial counsel was ineffective in failing to object. But

[a]s a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court's discretion. This wide latitude encompasses the prosecutor's ability to argue reasonable inferences raised by the evidence. Accordingly, it is proper for a prosecutor to urge the jury to draw inferences from the evidence regarding the credibility of witnesses.

(Citations and punctuation omitted.) Brown v. State, 293 Ga.App. 633, 637–638(1)(d)(ii), 667 S.E.2d 899 (2008). The prosecutor was allowed to argue the veracity of witnesses from the evidence, so long as she did not “state to the jury his or her personal belief about the veracity of a witness.” (Citation, punctuation and footnote omitted.) Navarro v. State, 279 Ga.App. 311, 314(2)(b), 630 S.E.2d 893 (2006).³

Only one of the statements cited by Rockamore appears to have indicated a personal belief on the part of the prosecutor. While responding to Rockamore's earlier argument that the State had failed to present a witness, she stated:

They want to know why Andrew Fike, the white male, wasn't in the courtroom. Well, I'll tell you why. My job as a prosecutor is to prosecute the case. And I do not waste your time unless it can be corroborated. Fike could not be corroborated. While I believe Howell and I believe he's testifying truthfully because he— Rockamore's counsel interrupted the prosecutor, “Your honor, objection to what she believes is irrelevant and—” and the prosecutor immediately stated, “Strike it. Strike it, I'll back up.” Rockamore's counsel therefore did object, and his objection was successful.

While Rockamore asserts that his trial counsel should have further moved for a mistrial, such decisions generally fall within the ambit of strategy and tactics. Matiatos v. State, 301 Ga.App. 573, 576(2)(b), 688 S.E.2d 385 (2009) (decision not to renew motion for mistrial strategic). Here, Rockamore failed to call his trial counsel as a witness at the motion for new trial hearing.

Without such testimony, in the absence of other evidence that trial counsel's performance was deficient, the trial court is to presume that trial counsel's actions are part of trial strategy. In the absence of trial counsel's testimony, it is extremely difficult to overcome this presumption.

(Citations and punctuation omitted.) Temple v. State, 253 Ga.App. 606, 609(2)(a), 561 S.E.2d 132 (2002). Without further evidence, “any decision not to object is presumed to be a strategic one which will not support a claim of ineffective assistance of counsel.” (Citation and footnote omitted.) Futch v. State, 286 Ga. 378, 383(2), 687 S.E.2d 805 (2010).

(b) Similarly, Rockamore's contention that his trial counsel was ineffective in failing to object to a question directed to Howell must fail. Howell acknowledged on direct examination that he had entered into a negotiated plea of guilty that required him to testify truthfully in this case. On cross-examination, Rockamore's counsel suggested, and Howell agreed, that “the person that's going to decide whether you testified truthfully is counsel sitting at the prosecutor table, right?” He attacked Howell's credibility by pointing out numerous inconsistencies between his statement to police and his testimony at trial. He further suggested that Howell had a strong...